BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE D. MITCHELL, Claimant VS. File No. 881021 WILSON TRAILER CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and HARTFORD INSURANCE, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dale D. Mitchell, claimant, against Wilson Trailer Company, employer (hereinafter referred to as Wilson), and Hartford Insurance company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on May 16, 1988. (The alleged injury date was changed at the time of hearing without objection by the defendants) On January 25, 1990, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Wilson at the time of the alleged injury. 2. Claimant is seeking temporary total disability or healing period benefits only from May 16, 1988 through MITCHELL V. WILSON TRAILER CO. Page 2 October 30, 1988 and defendants agree that he was not working during this time. 3. If the injury is found to have caused permanent disability, the type of disability is a scheduled member disability to the arm or hand. 4. If permanent disability benefits are awarded, they shall begin as of October 31, 1988. 5. Claimant's rate of weekly compensation shall be $186.72. 6. With reference to the medical bills submitted by claimant at hearing, the expenses were fair and reasonable and causally connected to the wrist condition upon which the claim is based but that the issue of the causal connection to the work injury remained at issue. ISSUES The parties have submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment with Wilson; II. Whether there is a causal relationship between the work injury and the claimed disability; III. The extent of claimant's entitlement to weekly benefits for disability; IV. The extent of claimant's entitlement to medical benefits; and, V. The extent of claimant's entitlement to penalty benefits, if any, for an unreasonable delay or denial of weekly benefits. Although raised in the prehearing report, no issue under Iowa Code section 85.39 with reference to an independent medical examination was raised in the record of this case and there is nothing for the undersigned to decide with reference to such an issue. STATEMENT OF THE FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement" all of the evi- MITCHELL V. WILSON TRAILER CO. Page 3 dence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement shall be viewed as preliminary findings of fact. Claimant testified that he has worked for Wilson since April 1987, in the assembly line building trailers. Claimant testified that this work involves heavy work in the manual assembly of trailers using power hand tools and use of arms and hands and pushing, reaching and lifting. Claimant's work at the time he first received treatment of his wrists was that of a tire installer in which he would install with another employee tires weighing approximately 200 pounds onto the trailers using pry bars and hand tools. Claimant said that the two persons assigned to this job were required to install eight tires per trailer and they completed 12 trailers per day. Claimant said that in this job and as well as in other jobs, he was required to use air powered impact guns which regularly vibrated and kicked, impacting upon his wrists. Company officials testified that the work was not heavy and not repetitive and that much of the work is planning or layout. Claimant said that in January 1988, he began to experience pain in his wrists. He felt at the time that this was a recurrence of tendonitis. Claimant explained that he had experienced wrist and arm pain before but unlike before, the pain that he experienced in January of 1988 was much sharper and much more severe. Claimant said that the problem became worse at Wilson to the point where he could no longer hold objects in his hand. Claimant then sought medical treatment and was eventually referred to an orthopedic surgeon, Richard Murphy, M.D., who diagnosed Keinbach's disease of the right wrist. According to Dr. Murphy, this condition is the gradual death of the lunate bone of the wrist caused by an interruption of the blood supply. Dr. Murphy opined that in claimant's case this was the result of multiple, traumatic incidents involving claimant's wrist or repetitive use of the wrist. Claimant gave a history to Dr. Murphy and to other physicians that the pain began three years earlier while working as a meat cutter for a former employer. Claimant said that his work was very repetitive in this meat cutting job. In his deposition, claimant stated that his wrists and arms would regularly be kicked by hogs hanging from a rail. Claimant testified that he worked for this prior meat packing employer from 1976 to 1985. He said that he had no significant repetitive heavy work involving his hands before that time. From 1985 until his employment at Wilson, MITCHELL V. WILSON TRAILER CO. Page 4 claimant worked as a farm laborer. He said that this farm work was heavy at times but not of a repetitive nature. Dr. Murphy treated claimant with surgery on May 17, 1988. This surgery, called an intra-carpal arthrodesis, replaced a portion of the bone in the wrist with a bone from claimant's elbow. Claimant recovered from the surgery and was released to return to light duty work on October 31, 1988. Claimant has further recovered and has now been released to full duty. The only physician to opine as to the cause of claimant's wrist problems was Dr. Murphy. Although an extensive deposition was taken of the doctor, his views as expressed in his written report of November 14, 1988, remains unchanged. He stated as follows: Since Mr. Mitchell's complaint of pain, discomfort and limitation of the wrist was noted after his job duties at Wilson Trailer, I would say that his work is causally related to his wrist problems that required reconstructive surgery. It remains unclear whether they were caused or aggravated the bone deterioration, but the work is certainly a contributing factor in that this patient's pain and discomfort was noted and progressed with his job duties at Wilson Trailer. Claimant today continues to work for Wilson. He expressed to his physicians continuing difficulties and Dr. Murphy has opined that claimant will have permanent partial impairment. However, Dr. Murphy testified that it is too early at this point in time to measure this impairment. He said that his condition will continue to improve with time. APPLICABLE LAW AND ANALYSIS Note: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant will be found credible. I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady , 278 N.W.2d 298 (Iowa 1979) ; Crowe v. DeSoto Consol. Sch. Dist. , 246 Iowa 402, 68 N.W.2d 63 (1955) An MITCHELL V. WILSON TRAILER CO. Page 5 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 therein. It is not necessary that claimant prove that his disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. In the case sub judice, claimant clearly has shown an injury, whether it be an original injury or aggravation of a preexisting condition and that the date of injury is when claimant's pain compelled him to leave work to seek surgery, May 16, 1988. Dr. Murphy clearly stated that claimant's symptoms were aggravated by the work at Wilson. This agency is free to find a different injury date in accumulative trauma cases that better represent the proper date of injury under the McKeever doctrine. II. The claimant has the burden of proving by a pre- ponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the MITCHELL V. WILSON TRAILER CO. Page 6 finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co. 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 34811 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case of Dale Mitchell, the fighting issue was whether the work at Wilson only temporarily aggravated the condition or accelerated or worsened the condition so as to make the entire condition compensable. Admittedly, Dr. Murphy's views, both on the written reports and oral testimony, is equivocal. However, the undersigned deputy commissioner's reading of these views demonstrate by a preponderance of the evidence that claimant's work at Wilson was a contributing factor in precipitating the surgery and resulting permanent partial impairment. As stated above, claimant need not demonstrate that the condition is the sole result of his work, only that his work was at least one of the significant factors precipitating the treatment and resulting impairment. III. With reference to the extent of permanent disability, it will be found that claimant suffers permanent partial disability from the injury as the views of Dr. Murphy are uncontroverted on this matter. However, it is not possible to determine the extent of disability at this time. Claimant may return to this agency at a later date when the issue is ripe for determination. As claimant has established entitlement to some degree of permanent disability, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant was released to return to work on March 31, 1988. MITCHELL V. WILSON TRAILER CO. Page 7 IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable expenses for treatment of the work injury. Due to the parties' stipulation as to the reasonableness and the causal connection of the expenses to the wrist problem, all requested expenses will be awarded without further inquiry. V. The issue of the causal connection of claimant's wrist problems to the work injury is arguable and claimant has not made a case for imposition of any penalty against the defendants for an unreasonable denial or delay of benefits. Defendants have the right to argue their views to this agency when the issue is fairly debatable. FINDINGS OF FACT 1. Claimant was a credible witness. Claimant's appearance while testifying indicated that he was testifying truthfully. 2. On May 16, 1988, claimant suffered an injury to the right wrist which arose out of and in the course of his employment with Wilson. This injury is called Keinbach's disease or a necrosis of the lunate wrist bone due to a lack of blood supply. This loss of blood supply was the result of a long period of time of multiple small traumas or repetitive use of the wrist. Claimant incurred this as a result of numerous employers over the last three years but the last injurious exposure to repetitive wrist trauma was at Wilson Trailers. This employment was a significant factor in contributing to the progressive disease process. 3. The work injury of May 16, 1988, was a cause of a period of disability from work beginning on May 16, 1988 through October 30, 1988, after which time claimant returned to work. During this time, claimant received extensive treatment of the work injury consisting of limitations on activity, medications for pain and inflammation, home exercises, physical therapy and surgery. 4. The work injury of May 16, 1988, is a cause of permanent impairment to the arm the extent of which is unknown at this time. Claimant had no ascertainable functional impairment to the arm before the work injury. This impairment was the result of repetitive use or trauma to claimant's wrists occurring over a period of time among various employers including Wilson. However, the employment at Wilson which required repetitive heavy work with claimant's hands was one of the significant contributing factors leading to the surgery and resulting permanent partial impairment. MITCHELL V. WILSON TRAILER CO. Page 8 5. Claimant failed to show that there was an unreasonable denial of benefits. The issue of the causal connection of claimant's current difficulties to the work injury is arguable and fairly debatable. CONCLUSIONS OF LAW Claimant has established under law entitlement to the healing period benefits awarded below and to the medical expenses requested. ORDER 1. Defendants shall pay to claimant permanent partial disability benefits at the rate of one hundred eighty-six and 72/100 dollars ($186.72) per week from October 31, 1988, when the extent of disability to the arm is known. 2. Defendants shall pay to claimant healing period benefits from May 16, 1988 through October 30, 1988 at the rate of one hundred eighty-six and 72/100 dollars ($186.72) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report exhibits 13 to 23. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants are ordered to pay the provider directly along with any lawful late payment penalties imposed on the account by the provider. 4. Defendants shall pay accrued weekly benefits in a lump sum. 5. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 7. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. 8. This matter shall be set back in for pre-hearing assignment on the issue of the extent of permanent partial disability. MITCHELL V. WILSON TRAILER CO. Page 9 Signed and filed this 15th day of May, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law 632-640 Badgerow Bldg P 0 Box 1194 Sioux City IA 51102 Mr. Paul W. Deck, Jr. Attorney at Law 635 Frances Bldg Sioux City IA 51101 5-1803 Filed May 15, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE D. MITCHELL, Claimant, VS. File No. 881021 WILSON TRAILER CO. A R B I T R A T I 0 N Employer, D E C I S I 0 N and HARTFORD INSURANCE, Insurance Carrier, 'Defendants. 5-1803 - Nonprecedential Extent of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALBERT PILKINGTON, Claimant, File No. 881022 VS. B.M.S. BUILDING MAINTENANCE, A R B I T R A T I 0 N SERVICE, D E C I S I 0 N Employer, and LUMBERMENS MUTUAL CASUALTY, COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Albert Pilkington, against B.M.S. Building Maintenance Service, employer, and Lumbermens Mutual Casualty Company, insurance carrier, defendants, to recover benefits as the result of an alleged injury sustained on July 22, 1986. This matter came on for hearing before the deputy industrial commissioner in Des Moines, Iowa, on January 19, 1990. The record consists of the testimony of the claimant and Keith Carson; and joint exhibits A through E. ISSUES The issues the parties set out in the prehearing report for resolution are: 1. Whether claimant's alleged injury arose out of and in the course of his employment; 2. Whether claimant's alleged disability is causally connected to his injury; 3. The nature and extent of claimant's disability; 4. The rate at which weekly benefits would be paid if liability is found; and 5. Whether claimant is entitled to benefits under Iowa code section 85.27. PILKINGTON V. B.M.S BUILDING MAINTENANCE SERVICE Page 2 REVIEW OF THE EVIDENCE Claimant testified he is married but on the date of the injury was separated from his wife. Claimant said he has one dependent child. Claimant stated he started the fifth grade but only passed four years of grade school education. Claimant said he has a learning disability, which he contends contributed to his school problems. Claimant testified he attended a mechanics school in Des Moines but did not complete the course and did not obtain a certificate. Claimant said he received no special training in the military and was honorably discharged. He said his past work has included washing windows, doing die setting work, operating a press, painting, and driving a fork lift. He said most of the jobs were medium to heavy work. Claimant began working for defendant employer for the second time in April 1986 part-time and became full-time on or around June 13, 1986. Claimant said he was working on top of the Savory Hotel on July 22, 1986 with other workers washing hotel windows. Claimant described the apparatus that was placed on the roof to hold the window workers as they washed the windows along the side of the hotel. Claimant testified he felt a pain in his back and down into his legs as he was lifting and moving weights holding the aluminum I beam in place. Claimant said the weights he had in each hand weighed 55 pounds each and when a beam became unbolted while lifting the weights, he dropped one of the weights and suddenly moved his foot so the weight would not hit it. Claimant stated he told the foreman and was told to go home. Claimant said he went to work the next day, but he felt so bad with the pain in his back, groin and leg area he went to the Mercy Clinic in the Skywalk. He said he was checked for a hernia. Claimant acknowledged Mercy Clinic said everything was okay. Claimant said Mercy sent him to Broadlawns and Broadlawns sent him back to Mercy for a recheck and was told all was okay. Claimant contends he told both Mercy and Broadlawns that he was hurting in his lower abdomen, low part-middle of back in the beltline area, and his leg. Claimant said he then went back to work for two days but was hurting so bad he quit July 25, 1986 and went to live with relatives in Missouri. Claimant acknowledged he did not tell defendant employer why he was quitting but did tell the foreman. Claimant said he sought no additional medical help at that time as he thought the pain would go away if he rested. Claimant related the pain did not go away and, in fact, got worse. Claimant testified he did not hurt when he pressed his lower stomach, but he did hurt when he pressed his lower back. Claimant emphasized he had no low back problems prior to July 22, 1986 nor has he had any other injuries to his back since July 22, 1986. PILKINGTON V. B.M.S BUILDING MAINTENANCE SERVICE Page 3 Claimant testified he sought medical help from Dennis L. Abernathie, M.D., in September 1986. He described his limited treatment with the doctor at that time. Claimant said he isn't working at this time but acknowledged he was working 10 to 20 hours doing light brake work and tie rod mechanic work in February 1989 when his deposition was taken. Claimant said he worked six months at that job and then worked one week at a metal sorting and hauling job. He also said he worked two to three weeks as a painter in the summer of 1987, but was fired for missing too much work. Claimant contends he couldn't move the ladders around without his back hurting. Claimant said this work aggravated his back. Claimant said his present complaints are: His back hurts, has trouble getting out of bed, can do no lifting, can't dance, has problems driving long distance without stopping every 50 to 100 miles, cannot sit for more than one hour at a time, and has trouble walking. Claimant emphasized he would be unable to do the type of jobs he did before his injury on July 22, 1986. Claimant said he has looked for work since his alleged injury and goes three or four times a week to the unemployment office. He stated he also looks in the newspapers for job information. Claimant disagrees with Mercy Hospital Clinic medical records if they indicate he said he told the medical personnel he only had pain in his testicles. He also disagrees with Broadlawns records if they indicate claimant's complaints were upset stomach and painful testicles. Claimant acknowledged he personally filled out the first report of injury (Joint Exhibit A, page 5) after he had gone to Mercy Medical Clinic and Broadlawns Hospital. Claimant contends the reason the report shows only his private parts as affected by his July 22, 1986 injury is because there is no room to put anything else on the form. Claimant denied he told his supervisor, Keith Carson, on the day he quit his job that he was quitting because of a better job paying $100 more. Claimant admitted he previously quit defendant employer in 1985. Claimant said he would disagree with Dr. Abernathie's note that indicated claimant told the doctor he quit his job with defendant employer when he allegedly got hurt in July 1986. Claimant seemed to indicate at one point in his testimony that he was terminated by the employer rather than claimant quit his job with defendant employer. Claimant said he was married at the time of injury but was separated from his wife for over ten years. He indicated he was renting a room at that time from his wife. Claimant explained the reason his B.M.S. employment application reflects he was PILKINGTON V. B.M.S BUILDING MAINTENANCE SERVICE Page 4 divorced is because he had not lived with his wife for so long. Claimant acknowledged his girlfriend, who lives in Moberly, Missouri, was with claimant in court today, but claimant contends he currently lives with his mother in Moberly. Keith Carson testified he was employed with defendant employer from December 1983 until July 1988 and was claimant's supervisor on July 22, 1986. He said he.was aware of claimant's injury and claimant came to him that afternoon and said he hurt himself. He understood claimant had a pull between his legs, but emphasized claimant never said anything as to back or leg pain. He said he told claimant to go to Mercy Clinic. Carson testified claimant brought in the doctor's note for the day off but to return to work the next day. He indicated claimant said his groin area was still sore at that time. Carson recalled claimant actually working two more weeks rather than claimant's contention his employment terminated July 25, 1986. Carson said claimant continued to do window washing and vehicle maintenance those two weeks. He said the Savory Hotel was finished and all other jobs were covered. Carson said claimant was doing light duty jobs those two weeks because there were no other jobs to do and not because of his injury. Carson said claimant did not like high work or working over the side of a building. Carson acknowledged he helped prepare the payroll record (Joint Exhibit A, page 5) that reflect the date of July 25, 1986, but he disagrees with the date. He indicated this may be the date claimant gave his notice. Carson said claimant told him he quit because he can make more money, $100 per day, roofing and building homes. Carson indicated claimant initially was hired part-time by defendant employer and then became full-time on June 13, 1986. Paul Kouture testified through his telephonic deposition on January 5, 1990 that he is a self-employed painting contractor located in Columbia, Missouri. He acknowledged he hired claimant for approximately three weeks in the summer of 1987. He said it could have been the summer of a different year. He understood claimant was in the process of moving from Des Moines to Missouri. Kouture described claimant's job as setting up ladders on second stories and painting windows and preparation work. He said preparation work involved sanding, removing excess caulking from windows, etc. Kouture said claimant would have to lift a 32 or 20 foot extension ladder, in other words, whatever it took to reach a second story window. Carson acknowledged claimant lacked motivation and there were frequent occasions that claimant would not show up for work. Kouture emphasized he observed claimant working and noticed no physical problems whatsoever, only a lack of motivation. He said claimant never mentioned back problems to him. He stated PILKINGTON V. B.M.S BUILDING MAINTENANCE SERVICE Page 5 claimant was able to get up and down the ladder and do the work once he was up there. Kouture said he would not have hired claimant if he had disclosed any back problems, since one must move ladders that weigh 50 to 60 pounds and also often lift furniture when doing interior room jobs. Carson stated he worked with claimant about one week of the three weeks claimant worked. Kouture said he fired claimant because he would come to work one day and miss the next. Broadlawns medical records on September 12, 1979, indicate claimant was struck by a car and had severe lumbosacral pain (Jt. Ex. A, section 1, p. 3). The record reflects claimant had a right pelvic ramus fracture. Broadlawns medical records of June 17, 1985 reflect a complaint of cervical spine pain and examination reveals a normal cervical spine (Jt. Ex. A, sec. 1, pp. 10-11). Broadlawns medical records on July 25, 1986 reflect claimant complained of painful testicles after lifting and also epigastric pain which comes and goes, usually worse after eating (Jt. Ex. A, sec. 1, p. 13). This record reflects chronic low back pain and lumbosacral strain in the past. An x-ray examination on March 11, 1987, shows mild degenerative joint disease involving S1 joints and narrowing at L5-Sl posteriorly. Claimant, at that time, was complaining of "constant low back pain due to an injury in July 1986.11 (Jt. Ex. A, sec. 1, p. 16). Mercy Hospital records reflect on July 24, 1986 that claimant complained of groin pains and desired to be checked. (Jt. Ex. A, sec. 2, p. 2) On July 25, 1986, the same record shows claimant returned for a recheck after having gone to Broadlawns. It indicates claimant was told to "wear a support down below" and "possible testicular infection." Moberly Regional Hospital records on December 30, 1987 reflect claimant complained of pain in the lower back and down the back legs with a history of back injury one year ago. The records of Dennis L. Abernathie, M.D., on September 9, 1986, reflect claimant complained of low back and leg pain and indicated claimant said he worked one-half weeks after his July 22, 1986 injury and finally quit and returned to Moberly to live with his parents because the pain was so bad (Jt. Ex. A, sec. 4, p. 3). The doctor's records reflect back pain in both claimant's neck and low back in January 1989 and indicates claimant is having "more low back pain recently he is working 2-3 days a week on front alignment and I think the standing has been aggravating his back." (Jt. Ex. A, sec. 4, p. 4). On October 23, 1986, Dr. Abernathie opined claimant had a 10 percent permanent disability. PILKINGTON V. B.M.S BUILDING MAINTENANCE SERVICE Page 6 H. Lepkowski, M.D., concluded on September 15, 1986 that claimant had a "partially degeneratyed L5-S1 disc." (Jt. Ex. A, sec. 4, p. 10) A first report of injury prepared by claimant reflects claimant answer to "How did the accident occur?" was "picking up weights from I Beam." Claimant described the part of body affected by his injury as "My privates [sic] hurt." (Jt. Ex. A, sec. 5, p. 1) LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 22, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 22, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Claimant is a 44-year-old man who did not graduate from grade school. Claimant basically has been working in medium to heavy labor jobs prior to working for the second time for defendant employer around April of 1986. Claimant contends he hurt himself on July 22, 1986 while moving weights on an I beam at the Savory.Hotel window washing project of defendant employer. The medical records within two or three days of claimant's alleged injury indicate claimant complained of his testicles hurting or his groin area hurting. It was several months or up to a year or more later that claimant complained of low back and PILKINGTON V. B.M.S BUILDING MAINTENANCE SERVICE Page 7 cervical spine problems. The medical records of Mercy and Broadlawns of July 24 and 22, 1986 reflect no low back complaints by claimant. The records indicate a thorough recording of claimant's complaints. It is difficult to accept claimant's contention that he told Mercy and Broadlawns of his back complaints. If claimant had mentioned back injuries, the diagnosis and procedures would not have been limited to claimant's groin area and checking for a hernia. Claimant had also denied back injuries prior to July 22, 1986. The medical records on several occasions indicate that claimant was not truthful in this regard. The more credible evidence indicates claimant quit his job with defendant employer for a better job in Missouri rather than claimant's contention that he was terminated by defendant employer because of his injury. Claimant has performed some heavy duty work since he last worked for defendant employer. Mr. Kouture testified claimant worked for him in the summer of 1987. He indicated it could have been another year other than 1987. Kouture said claimant was moving from Des Moines to Missouri. It appears, after taking all the other evidence into consideration, that the date was more likely the summer of 1986. Regardless of whether it was 1986 or 1987, Kouture said claimant was lifting ladders and doing second story work for him. He said claimant exhibited no physical problems and made no complaints of back problems to him. There is no medical testimony causally connecting claimant's condition to his alleged July 22, 1986 injury. The evidence is deficient to enable the undersigned to find any causal connection notwithstanding lack of medical testimony. It appears claimant has had a chronic back condition and degenerative disc disease. Claimant's work history is very spotty. Claimant's credibility is questionable. Claimant has the burden to show his alleged low back injury of July 22, 1986 arose out of and in the course of his employment. Claimant has failed to carry his burden. Claimant also has the burden to show his alleged medical condition is causally connected to his alleged July 22, 1986 injury. Claimant has failed to prove this, also. There are other issues set out by the parties. With the above findings of a low back injury not arising out of and in the course of claimant's employment and no causal connection of his condition to said alleged injury, there is no need to further discuss the other issues as they are now moot. Claimant takes nothing from these proceedings. FINDINGS OF FACT 1. Claimant failed to prove he incurred a low back injury on July 22, 1986 while employed with defendant employer. 2. Claimant failed to prove he has a low back injury as a result of a work-related injury on July 22, 1986. PILKINGTON V. B.M.S BUILDING MAINTENANCE SERVICE Page 8 3. Claimant has no impairment or disability as a result of his injury on July 22, 1986. 4. Claimant quit his employment voluntarily with defendant employer after his July 22, 1986 injury to his groin area-testicles. 5. Claimant is not a credible witness. CONCLUSIONS Claimant failed to prove his July 22, 1986 alleged injury to his low back arose out of and in the course of his employment. Claimant failed to prove his low back condition is causally connected to his alleged work-related injury on July 22, 1986. Claimant has no impairment or disability causally connected to his injury of July 22, 1986. Claimant was not terminated from his employment by defendant employer because of any alleged work injury on July 22, 1986. ORDER Claimant takes nothing from these proceedings. Claimant and defendants shall equally pay the costs of this proceeding, pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 16th of March, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr William Bauer Attorney at Law Sixth Flr Burlington Bldg Burlington IA 52601 Mr Paul C Thune Attorney at Law P 0 Box 9130 Des Moines IA 50306 5-1100; 5-1400; 5-1108 Filed March 16, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALBERT PILKINGTON, Claimant, File No. 881022 VS. B.M.S. BUILDING MAINTENANCE, A R B I T R A T I 0 N SERVICE, D E C I S I 0 N Employer, and LUMBERMENS MUTUAL CASUALTY, COMPANY, Insurance Carrier, Defendants. 5-1100; 5-1400 Claimant failed to prove his injury arose out of and in the course of his employment. 5-1408; 5-1400 Claimant failed to prove his alleged low back injury was causally connected to his injury. Claimant took nothing from these proceedings. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARK LINDEMOEN, : : Claimant, : : vs. : : File No. 881030 SELECT HOME IMPROVEMENT COMPANY,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AMERICAN STATES INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Mark Lindemoen, against his employer, Select Home Improvement Company, and its insurance carrier, American States Insurance, defendants. The case was heard on July 6, 1990, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant; the testimony of Phyllis J. Erdman, defendant-employer's bookkeeper; the testimony of Joseph Celsi, owner of defendant-employer; and, the testimony of Kathy Bennett, vocational specialist. Additionally, the record consists of joint exhibits A-H and M and N. issues The issues to be determined are: 1) whether claimant is entitled to healing period benefits from May 2, 1988 through October 11, 1988 and from October 28, 1988 through November 27, 1989; 2) whether claimant is entitled to permanent partial disability benefits; and if so, the amount; and 3) the rate at which claimant is to be paid weekly compensation benefits. findings of fact The deputy, having heard the testimony and considered all the evidence finds: Claimant has graduated from high school in 1978. He is single and has held a variety of positions subsequent to his high school graduation. Many of the positions he has held have been in the area of siding houses. Claimant started working for defendant-employer as a crew foreman on January 26, 1988. He was hired to install replacement windows, to oversee workers, and to complete the Page 2 carpentry work incidental to the installation. Claimant's job involved lifting, pulling, pushing and leaning. Often claimant was required to lift 35 to 750 pounds. Claimant injured himself on May 2, 1988, while he was unloading a trailer. He pulled on a tool box, twisted his body and felt instant pain along his belt line in the area of his back. Initially, claimant sought chiropractic treatment. Then claimant saw Scott Carver, M.D. He referred claimant to William R. Boulden, M.D., a board certified orthopedic surgeon. Dr. Boulden, after testing, opined that claimant had a herniated disk at L5-Sl on the right side displacing the Sl nerve root. A partial diskectomy was performed on June 29, 1988. Later, because of continued pain, Dr. Boulden performed a fusion at the L5-Sl level. Subsequent to the fusion, Dr. Boulden released claimant to return to work in the medium and light categories. Claimant was given permanent restrictions with respect to his work and was restricted from repetitive bending, twisting, and lifting with his back. He was also precluded from sitting or standing more than 30 to 45 minutes at one time. Dr. Boulden opined claimant had a 20 percent permanent partial impairment as a result of his work injury on May 2, 1988. Claimant participated in vocational rehabilitation with Ms. Kathryn Bennett of Bennett Rehabilitation. Ms. Bennett attempted to find claimant a part-time position since claimant had enrolled as a college student at Des Moines Area Community College. Ms. Bennett determined that the median wage claimant could expect would be from $8,100 to $27,000. At the time of the hearing claimant was still enrolled as a student. He hoped to become a marine biologist which paid an annual salary of $18,000 to $30,000. conclusions of law This division has jurisdiction of the subject matter of the proceeding and the respective parties. The fighting issue in this case is the nature and extent of claimant's disability, if any. Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 Page 3 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). For example, a defendant employer's refusal to give any Page 4 sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). In the case at hand, claimant is functionally impaired. Dr. Boulden has assessed a 20 percent functional impairment rating to claimant. Dr. Boulden has also imposed permanent restrictions on claimant. Claimant is restricted to the light or medium work categories. Claimant has sustained a loss of earning capacity. He is no longer able to install windows or to perform carpentry work since claimant is unable to engage in repetitive bending and twisting. Claimant has attempted and is capable of sales work so long as he does not sit or stand for more than 45 minutes at a time. Claimant is restricted to the medium and light work categories. These are often jobs in the $5.00 to $6.00 per hour range. He is precluded from working in the heavy fields such as iron work or as a siding installer where his wages often average $300 to $400 per week. Claimant has worked part-time. Claimant has been enrolled at DMACC since January of 1990. He hopes to earn a bachelor's degree in marine biology or business. It will take claimant over four years to earn his degree at the rate of 9 credit hours per semester. He is capable of part-time employment. Claimant is bright, young, exudes enthusiasm and is highly motivated. These are positive attributes which will assist him in the labor market. Therefore, based upon the principles of law previously cited, it is the determination of the undersigned that claimant has a permanent partial disability of 30 percent. Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Co., Vol. 2-1, State of Iowa Industrial Commissioner Decisions 485 (1984). With respect to this case, claimant has been in the healing period from May 2, 1988 through October 11, 1988, and from October 28, 1988 through November 27, 1989. The healing period consists of 79.857 weeks. Claimant is entitled to weekly compensation for the same period. The final issue to address is the rate at which claimant is to be compensated. Claimant argues that he was told by his employer, Joe Celsi, that he could earn between $40,000 to $50,000 per year and since a 13 week pay period could not be computed, the $40,000 to $50,000 figure should be used. Defendants maintain that during the period from January Page 5 26, 1988 through May 16, 1988, claimant's gross earnings were $6,479.04, and that the above figure should be divided by the total number of weeks worked (15.174). Defendants insist claimant's gross weekly earnings were $412.31 per week and that the weekly benefit rate for a single individual would equal $245.32 per week. After reviewing the evidence, the undersigned determines that claimant's weekly benefit rate is calculated as follows under 85.36(7). Claimant did not work the 13 weeks preceding his injury. However, he worked the following 9 weeks, including the week he was injured: Week of 1-26-88 $ 300.00 2-03-88 187.20 2-04-88 253.00 2-11-88 413.00 2-23-88 943.00 3-14-88 2,984.00 4-02-88 3,367.10 4-18-88 65.60 5-16-88 1,591.60 Total $10,104.50 - 9 = $1,122.72 Using Guide to Iowa Workers' Compensation Claim Handling, dated July 1, 1987, the appropriate weekly benefit rate is $544.30 per week for a single individual with one exemption. Claimant is entitled to be compensated at this weekly benefit rate. order THEREFORE, IT IS ORDERED: Defendants are to pay one hundred fifty (150) weeks of permanent partial disability benefits at the rate of five hundred forty-four and 30/l00 dollars ($544.30) per week commencing on November 28, 1989. Defendants are to also pay healing period benefits for seventy-nine point eight-five-seven (79.857) weeks from May 2, 1988 through October 11, 1988 and from October 28, 1988 through November 27, 1989. Defendants shall receive credit for all benefits previously paid and not credited. Interest shall be paid pursuant to Iowa Code section 85.30. Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of March, 1991. Page 6 ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Donald G. Beattie Attorney at Law 204 8th St SE Altoona IA 50009 Mr. Marvin E. Duckworth Attorney at Law Terrace Center STE 111 2700 Grand Ave Des Moines IA 50312 1803 Filed March 5, 1991 MICHELLE A McGOVERN before the iowa industrial commissioner ____________________________________________________________ : MARK LINDEMOEN, : : Claimant, : : vs. : : File No. 881030 SELECT HOME IMPROVEMENT COMPANY,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AMERICAN STATES INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant was awarded a 30 percent permanent partial disability for his back injury. Claimant was functionally impaired in the amount of 20 percent. Additionally, claimant had sustained a loss of earning capacity. He was no longer able to install windows or perform carpentry work. Claimant was permanently restricted and was prohibited from engaging in repetitive bending and twisting. Claimant was enrolled in college and desired to complete his bachelor's degree. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JEFFREY GRIEP, Claimant, File No. 881036 vs. A R B I T R A T I O N CLINTON COUNTY AGRICULTURAL D E C I S I O N SOCIETY, INC., Employer, F I L E D and OCT 31 1989 HARTFORD INSURANCE GROUP, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Jeffrey Griep, against Clinton County Agricultural Society, Inc., alleged employer, and Hartford Insurance Group, insurance carrier, for benefits as the result of an alleged injury which occurred on August 7, 1986. A hearing was held at Davenport, Iowa, on August 16, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by David H. Sivright, Jr. Defendants were represented by Thomas N. Kamp. The record consists of the testimony of Jeffrey Griep, claimant; Joint Exhibits 1, 8 and 10; Claimant's Exhibits 2 through 7 and 9; and Defendants' Exhibit A in the parts of this deposition of claimant selected by defendants. The deputy ordered a transcript. Defendant's attorney submitted an excellent posthearing brief. Claimant's attorney did not submit a posthearing brief. STIPULATIONS The parties stipulated to the following matters: That claimant is single and entitled to one exemption. That the providers of medical supplies and services would testify that the fees charged were reasonable and that the medical supplies and services were for reasonable and necessary medical treatment. That defendants make no claim for credit for either employee nonoccupational group health plan benefits or workers' compensation benefits paid prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether an employer-employee relationship existed between claimant and employer at the time of the alleged injury. Whether claimant sustained an injury on August 7, 1986, which arose out of and in the course of employment with employer. Whether the injury was the cause of temporary disability. Whether claimant is entitled to temporary disability benefits. What is the proper rate of compensation. Whether claimant is entitled to medical benefits. Whether claimant gave timely notice, as required by Iowa Code section 85.23, has been asserted as an affirmative defense by defendants. Claimant withdrew the issues of whether the injury was the cause of permanent disability and whether claimant was entitled to permanent disability benefits. SUMMARY OF THE EVIDENCE Claimant was age 18 at the time of the alleged injury and age 21 at the time of the hearing. When injured he was a high school student living at home with his parents. He graduated in the spring of 1987, attended college less than one semester, and then dropped out. At the time of the hearing he was employed as a grain inspector and as a self-employed farmer. On August 7, 1986, claimant was a member of a 4-H club known as the DeWitt Hustlers. The group met at the 4-H auditorium at the DeWitt Fairgrounds. The 4-H club did not pay rent for the use of the auditorium for their monthly meeting. Claimant was never an officer in his club, just a member. The club also held dances as a fund raiser at the auditorium, but did not pay rent for the auditorium for the dances. The club also had club shows just prior to the county fair at the fairgrounds. Claimant testified that he participated as an exhibitor of cattle in the county fair between August 3 and 6, 1986, as a member of the DeWitt Hustlers. His club normally participated in a cleanup after the fair which took about two to four hours. He received a postcard from a representative of defendants saying that he was to show up at a certain time and date for the cleanup. Claimant attended and participated in the cleanup. He furnished his own pitchfork at the time of the cleanup. There was no meeting. He just went and did what he had done in prior years. He cleaned up trash, cleaned up pens and removed light bulbs in the barns. Claimant had cleaned up five or six barns when he was injured in the sheep barn. At the time he was taking out the light bulbs and putting them in a five gallon bucket. Exhibits 6 and 7, show the inside of the sheep barn and the light bulb sockets. Claimant climbed up on a gate, stood on the top of a post, and reached for a light bulb. In the process, he fell and broke his left leg. He was taken to the emergency room of DeWitt Hospital and transferred to Mercy Hospital in Davenport for surgery by J.M. Hoffman, M.D. Claimant missed the fall semester of school. He started school again in January of 1987. Claimant said he did not have anything in writing from the doctor to take him out of school. It was only verbal instructions. He was not released by the doctor for full activities until March of 1987. He did participate in track in the spring of 1987. His medical bills totalled $6,156.48 (exhibit 9). Claimant estimated he earned approximately $3,500 in 1986, prior to the injury, as a farm laborer and selling pelts, but he did not have any paper record of his earnings. Claimant said there was no policy or rule to penalize 4-H members if they did not show up for the cleanup. Claimant did not see or talk to any member of the Clinton County Agricultural Society on the morning of the cleanup. He has never been paid in money for doing this job. He did not expect any wages in terms of money. There was no contract between the DeWitt Hustlers and the Clinton County Agricultural Society requiring this cleanup work. His organization was not paid for the cleanup. He did not expect to be paid by his 4-H club for this work and there was no agreement to be paid for this work in money. He has never submitted a bill for his work to anyone. Claimant admitted that he had not notified defendants that he had a claim at any time prior to when the petition was filed on August 1, 1988. His mother might have, but he did not know if she did or did not. Claimant agreed the doctor said his leg was fully weight bearing on October 7, 1986, but added that he still had six pins in his leg some of which protruded from the leg. He admitted in a deposition that he said he could drive a tractor in November of 1986. Claimant's prehearing deposition is essentially the same testimony as summarized above, except in his deposition when claimant was asked if he was a volunteer, he answered that paying back rent because he got to keep his calf at the fairgrounds for three and one-half days and he got to show his calf there. However, he said that there was no agreement to that effect. Claimant said the reason he thought he might have a workers' compensation claim was the fact that he felt like he was paying back rent. The Premium List for the Clinton County 4-H Club Show, on page nine, indicated that members of various clubs, including claimant's club, "should assist the 4-H Club Show Committee with cleaning up the 4-H grounds and buildings on Thursday, August 7, at 9:00 a.m." (ex. 10). The same booklet, at page 39 stated, "Each exhibitor will be responsible for cleaning his stall or pens before being released. Premium money will be withheld from exhibitors not cleaning their livestock area. Club leaders should be responsible for over seeing the cleaning of their club's area." Claimant was not listed as a leader on pages seven or eight. Jimmy Miller testified by deposition on May 11, 1988, that he was the secretary of the Clinton County Agricultural Society and has been for the last 30 years. He said the Society owns the fairgrounds. He was present on the morning of the cleanup. Several clubs were there performing several different activities. The clubs were invited to come in for the cleanup, but there was no requirement for them to do so. The clubs pay no fee for their monthly meetings or their club shows. They do pay a small fee for dances. There was no penalty if anyone did not show up for the cleanup. The cleanup was entirely voluntary. The witness said he learned of claimant's injury on the day it happened. He happened to see claimant's mother in a convenience store sometime later and she told the witness, "You better have good insurance." He told her the name of the agent. That is the only contact he had with claimant or his family about the injury. The clubs pay no fees or rent for using the fairgrounds. Neither claimant nor any other clubs or club members have ever been paid for the cleanup. There was no penalty for not showing up. There was no agreement with claimant to do cleanup work. His premiums would not have been withheld. Pay has never been discussed. Claimant was a volunteer. The witness did not see claimant on the day of the accident and he did not tell him to take out light bulbs. APPLICABLE LAW AND ANALYSIS An employee is formally defined at Iowa Code section 85.61, Definitions, paragraph 2, as follows: "'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;..." There is no legal distinction between the phrases in section 85.61(2), "a person who has entered into the employment of [an employer]" and "who works under a contract of service, express or implied." Usgaard vs. Silver Crest Golf Club, 256 Iowa 453, 455, 117 N.W.2d 636 (1964). The burden of proof is on claimant to show an employer-employee relationship. Everts v. Jorgensen, 227 Iowa 818, 822-26, 289 N.W. 11 (1939); Nelson vs. Cities Service Oil Company, 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 vs. State, 239 Iowa 818, 826, 827, 295 N.W. 139, 143 (1940); Usgaard, 256 Iowa 453, 455, 466, 127 N.W.2d 636 (1964); Nelson, 259 Iowa 1209, 1216, 136 N.W.2d 261, 265 (1966); Henderson vs. Jennie Edmundson Hospital, 178 N.W.2d 429, 431 (Iowa 1970). These factors are: (1) the right of selection or to employ at will; (2) responsibility for the payment of wages by employer; (3) the right to discharge or terminate the relationship; (4) the right to control the work; and (5) the party sought to be held as the employer is the responsible authority in charge of the work or for whose benefit the work is performed. No single one or more of the above factors is determinative. There is no requirement that claimant preponderate on each of the elements, a majority of the elements or only certain elements. Funk vs. Bekins Van Lines Co., I Iowa Industrial Commissioner Reports 82, 83 (Appeal Decision 1980). 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 & 6; Daggett vs. Nebraska-Eastern Exp. Inc., 252 Iowa 341, 348, 107 N.W.2d 102, 107 (1961). The intention of the parties, and also community practice, may be taken into consideration in a determination of the kind of relationship that was created. Nelson, 259 Iowa 1209, 1213, 146 N.W.2d 261, 265 (1966). Claimant did not sustain the burden of prof by a preponderance of the evidence that an employer-employee relationship existed between himself and defendants at the time of his alleged injury. Applying the five factor test, claimant did not prevail on any one of the five factors. Certainly, defendants have the right to contract and employ persons to clean up the fairgrounds, but there is no evidence that defendants entered into a contract of service with either claimant or his club to clean up the fairgrounds. Claimant did not enter into a contract of service with his own club to clean up the fairgrounds. There was no responsibility on the part of defendants to pay wages to claimant individually or to his club or anyone else for the tasks that claimant or others were performing at the time he was injured. It cannot be said that defendants had the right to discharge or to terminate the relationship because there was no obligation on the part of claimant to participate in the cleanup in the first place. Defendants cannot be said to be controlling the work. Defendants permitted groups and persons to use the fairgrounds. As a return courtesy these groups and persons, on a voluntary basis, chose to come to the fairgrounds the day after the fair and clean up the mess that they had made and put the premises back in the condition that they found it before they began to use it. There was no evidence that defendants were controlling the work of the individuals and groups other than to show them what needed to be done to place the premises back into the condition that it was before it was used by them. The long-standing intention of the parties appears to be that defendants made the fairgrounds available to the 4-H clubs and in return, the groups were supposed to have the courtesy to leave the premises in the condition in which they found it before they began to use it. No contracts, contracts of employment, or tacit agreements for employment with any individual or group were discussed or even contemplated. Claimant testified that he did not expect to get paid for his services. Claimant's testimony that he felt like his work was payment of back rent for the use of the premises indicates that he contemplated a lessor-lessee relationship rather than a master-servant relationship with defendants. In Stiles vs. Des Moines Council, Boy Scouts of America, 229 N.W. 841, 844 (Iowa 1930), cited by defendants' attorney, the Iowa Supreme Court held that a boy scout who received free board a t scout camp for his services of caring for horses was a volunteer and was not an employee under the workers' compensation act. Stiles had a better case for employment than claimant here because at least there was some agreement for a quid pro quo between the parties which is lacking in this case in order to find an employment relationship between this claimant and these defendants. There was absolutely no obligation of claimant to defendants, or his club for that matter, to be at the fairgrounds for the cleanup on the morning of the injury. It is highly commendable that claimant was faithful to his club and appreciative of the courtesy that defendants had extended, but claimant's unilateral choice to come to the fairgrounds did not establish a relationship of employer and employee between the parties in this action. Also the case of Norman vs. City of Chariton, 221 N.W. 481 (Iowa 1928), cited by defendants' counsel, is another example where the Iowa Supreme Court treated donated services as not creating an employer-employee relationship under the workers' compensation law of Iowa. Since claimant has not sustained the burden of proof by a preponderance that an employer-employee relationship existed between himself and defendants at the time of the alleged injury, then all of the other issues in this case are moot. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: The claimant and defendants did not have any agreement at any time for claimant to work for defendants in any capacity for the payment of wages or for any other reason. That defendants permitted 4-H clubs to use the fairgrounds to show their cattle at the fair. That the clubs were expected to return the courtesy by cleaning up the mess they made and placing the fairgrounds back in the same condition that they found it before they used it. That defendants did not hire claimant. That defendants had no power or authority to fire claimant. That no payment of money or otherwise was contemplated between the parties. That defendants did not control the work that claimant was doing at the time of his injury. That defendants were not the responsible authority in charge of the work at the time of the injury. That the defendant owners of the fairgrounds and the 4-H clubs intended only to exchange favors or courtesies, i.e., the use of the fairgrounds for the courtesy of cleaning it up when the clubs were done using it. That claimant had no obligation to be at the fairgrounds on the morning he fell and broke his leg. Claimant was a volunteer with respect to his club and also with respect to defendants in this case. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant did not sustain the burden of proof by a preponderance of the evidence that an employer-employee relationship existed between himself and employer at the time of the alleged injury. ORDER THEREFORE, IT IS ORDERED: That no amounts are due from defendants to claimant. That the costs of this action, including the cost of the attendance of the court reporter at the hearing and the transcript of the hearing, are charged to claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 31st day of October, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David Sivright, Jr. Attorney at Law 408 S. 2nd St. Clinton, IA 52732 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Bldg. Davenport, IA 52801 2001 Filed October 30, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JEFFREY GRIEP, Claimant, File No. 881036 vs. A R B I T R A T I O N CLINTON COUNTY AGRICULTURAL SOCIETY, INC., D E C I S I O N Employer, and HARTFORD INSURANCE GROUP, Insurance Carrier, Defendants. 2001 Defendant owners of the fairgrounds permitted 4-H clubs to use the premises without charge. The 4-H clubs were expected to return the courtesy by cleaning up any mess they made. There was no contract of employment or payment of anything of value to the 4-H members of clubs who did the cleanup. Claimant, who was working on the cleanup after the fair was over, was taking out a light bulb, fell and broke his leg. Held: There was no employer-employee relationship. All other issues were therefore, moot. Claimant said he felt like he was paying back rent for using the premises. If this is so, then he contemplated a lessor-lessee relationship rather than a master-servant relationship.