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.