Page 1 before the iowa industrial commissioner ____________________________________________________________ : RONALD GRUVER, : : Claimant, : : vs. : : File No. 888747 SUPER VALU STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Ronald Gruver against Super Valu Stores, Inc., and its insurance carrier, Liberty Mutual Insurance Company, based upon an injury that occurred on November 8, 1987. The primary issues to be determined are whether that injury is a proximate cause of any temporary or permanent disability which the claimant has experienced based upon the condition of his right hip which has been diagnosed as aseptic necrosis and also referred to as avascular necrosis. In the event that such a causal connection exists, the issues to be determined are claimant's entitlement to compensation for healing period and permanent partial disability, the rate of compensation and the assessment of costs. The case was heard at Des Moines, Iowa on August 7, 1990. The record in the proceeding consists of testimony from Ronald Gruver, Eileen Gruver and Ron Parrington. The record also contains joint exhibits A through F and defendants' exhibit 1. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Ronald Gruver is a 49-year-old married man with three sons, all of whom were under the age of 18 on November 8, 1987. Ronald has an eighth grade education. His employment history consists of farm work, road construction, tire repair and truck driving, which has been his primary occupation since the 1970's. He has driven for a number of different companies. Ronald's health history is significant for a series of back injuries which occurred in the early 1980's. He underwent low back surgery in 1985 which Page 2 produced a favorable result (exhibit F-1, page 8; exhibit F-9, page 188). Ronald testified at hearing that he had earned $28,000-$31,000 per year during each of the five or six years preceding his employment with Super Valu, but his income tax records, exhibit C, show a substantially lower rate of earning. Ronald has also been involved in feeding hogs under a contract arrangement. According to the income tax records, there has been little profit from that enterprise. Ronald supervises and manages the project, but the physical work is primarily performed by his three sons. Claimant's testimony is generally accepted as correct, although it is found that he is prone to exaggeration. Following the 1985 back surgery, Ronald experienced a great deal of difficulty in finding employment. His former employer would not take him back. His employment with Super Valu Stores started on March 18, 1987 (exhibit B, pages 3 and 33). His last day of work with Super Valu was May 1, 1988 when he resigned. Ronald's weekly earnings with Super Valu are shown in exhibit D at page 33. The 13 weeks prior to the injury begin with the week noted as 11-07-1987 and run down the page through the week noted 08-15-1987. The total gross earnings shown are $4,780.61. Ronald was paid at the rate of $9.18 per hour. His average weekly gross earnings compute to $367.74, an amount which indicates that he averaged slightly more than 40 hours of work per week. Ron Parrington referred to claimant as being a part-time worker, though the controlling collective bargaining agreement classifies the job as "casual." The casual employees are called to work on a day-to-day basis as the need for their services warrants. On November 8, 1987, Ronald was unloading merchandise at the Colfax, Iowa Super Valu Store. He was on a ladder to reach boxes which were stacked high inside the truck. The ladder was struck by a set of rollers and fell over. Ronald fell onto the steps where the unloading was being performed hitting his right hip, elbow and face. On the following day, claimant consulted H. R. Light, M.D., and provided a history of falling out of a truck one or two days earlier while working for Super Valu. He reported hitting his right shoulder, right elbow, right back and hip. He was observed to be stiff and sore, but Dr. Light detected no serious problems (exhibit F-1, page 15; exhibit A, pages 42 and 43). According to claimant, his hip continued to hurt and actually worsened. By mid-April of 1988, the pain had become so severe that he consulted Ronald R. Reschly, M.D., the orthopaedic surgeon who had previously performed his back surgery. Ronald denied having any hip problem prior to November 8, 1987. He also denied having any other injury or trauma to his hip subsequent to November 8, 1987. The first note from Dr. Reschly is dated April 12, 1988. It indicates that claimant was being seen in follow-up after having an injection in his right hip. The records show further diagnostic tests being performed to Page 3 establish that claimant was afflicted with aseptic necrosis or avascular necrosis of his right hip (exhibit F-1, pages 15 and 17-21; exhibit F-9, pages 220-223). Dr. Reschly placed Ronald on crutches and he remained on crutches at the time of hearing. Ronald has also been evaluated by orthopaedic physicians Richard C. Johnston, M.D., Bradley R. Adams, D.O., and Albert R. Coates, M.D. Dr. Johnston believes that there is no strong correlation between claimant's fall on November 8, 1987 and the condition of his right hip. He was unaware of evidence in medical literature which suggests that such a fall could cause aseptic necrosis in the absence of demonstrated femoral fracture or dislocation of the hip (exhibit F-4, pages 30-33). He felt that claimant would improve with a total hip replacement and that the procedure should be performed when the gain which could be obtained outweighs the risks. Dr. Johnston indicated that claimant could perform sedentary work, but could not return to truck driving while using crutches (exhibit F-4, pages 34 and 35). Dr. Adams felt that it was within the realm of medical probability that Ronald's aseptic necrosis was due to the November 1987 trauma (exhibit F-11, pages 258 and 259). Dr. Coates agreed that the avascular necrosis is related to the reported trauma (exhibit F-12, pages 260 and 261). In explaining his opinion, he stated: It's my opinion that this is an avascular necrosis of the femoral head on the right side and it's my further opinion that it is related to trauma. I am perfectly conversant with the fact that it is difficult to be exacting as to etiology of avascular necrosis but, certainly, trauma has been one of the implied etiological agents surrounding avascular necrosis. Since there were no symptoms prior to this fall and persistent symptoms subsequent to the fall and there is no history of diabetes mellitus, steroid use, malnutrition, use of drugs or alcohol, therein, it is my opinion that it is trauma related. Dr. Coates indicated that claimant would likely improve with a hip replacement, but that the timing of the procedure should be at the patient's discretion in view of the risk of loosening of the replacement and the potential for a subsequent revision. The primary treating physician, Dr. Reschly, explained that he first seriously discussed hip replacement surgery with claimant on December 9, 1988 when it was noted that the deformity of the femoral head was worsening (exhibit F-1, page 21). In his notes, he indicates that claimant has none of the usual known risk factors for developing aseptic necrosis, but that the time frame from the trauma to the development of the condition is correct for those cases where the condition develops as a result of trauma. He initially indicated on June 1, 1988 that he believed the Page 4 fall in November of 1987 was the cause of the condition (exhibit F-1, pages 21 and 22). It is noted that Dr. Reschly had previously termed the condition as being idiopathic, but he later explained that the terminology was used to merely indicate that it had not resulted from the known common causes for the condition (exhibit B, pages 15-19). Dr. Reschly, in his deposition, confirmed that the fall that occurred in November 1987 probably caused the hip condition (exhibit B, pages 39, 40, 45, 46, 47, 56 and 57). Dr. Reschly went on to explain that it was his preference to delay the replacement surgery in order to allow the claimant to adapt to a relatively low level of physical activity since a high level of activity would jeopardize the success of hip replacement surgery (exhibit F-1, page 26; exhibit B, pages 22, 23 and 30-36). Dr. Reschly agreed that claimant could currently perform sedentary work, but could not perform work which would involve driving a car or truck (exhibit B, pages 24 and 25). Dr. Reschly also confirmed that even following a successful hip replacement surgery, claimant would still be restricted and would have a substantial degree of permanent physical impairment (exhibit B, pages 26-29; exhibit F-1, pages 24 and 25). The assessment of this case made by Dr. Reschly is accepted as being correct. It is strongly corroborated by Drs. Coates and Adams. The record reflects that Dr. Johnston likely has a greater level of expertise in performing joint replacement surgery than Dr. Reschly, but the record does not reflect that he has any greater expertise in determining the cause for the conditions which might require joint replacement surgery. It is therefore specifically found that the fall that occurred on November 8, 1987 is a proximate cause of the aseptic necrosis, sometimes referred to as avascular necrosis, which afflicts Ronald Gruver's right hip. It is found that claimant's condition has not been improving. He is at a plateau awaiting a decision as to whether or not he should undergo hip replacement surgery (exhibit 1). According to Dr. Reschly, the need for the replacement surgery was initially discussed in December of 1988 (exhibit F-1, page 21). In late 1989, Dr. Reschly was still recommending that claimant wait before undergoing surgery (exhibit F-1, page 26; exhibit B, pages 22-36). The fact that claimant is awaiting hip replacement surgery does not mean that he is recuperating or recovering from the original injury. Drs. Johnston and Reschly agree that claimant is capable of sedentary work. Dr. Johnston had made that indication in his March 1, 1990 report while Dr. Reschly's assessment comes from his November 3, 1989 deposition. Claimant's condition was not expected to improve. He was merely awaiting his own decision with regard to when, if ever, he would have the hip replacement surgery. It is further specifically found that claimant's maximum improvement had ceased by December 1988 when Dr. Reschly seriously discussed the need for hip replacement Page 5 surgery. It is further found that one year is an adequate amount of time in which claimant should have lowered his activity level as Dr. Reschly indicated was advisable before proceeding with hip replacement surgery. The date of December 31, 1989 is therefore fixed as the time at which it was medically indicated that further significant improvement from the injury was not anticipated and to allow claimant to lower his activity level. Ronald Gruver has a very substantial degree of permanent impairment at the present time. Even with hip replacement surgery, he will have residual impairment. Even with a successful surgery, he will likely be eliminated from the type of work he had performed prior to the injury, namely truck driving. There might still be some driving jobs available, though the access to such jobs would be restricted. Ronald does, however, have some background in managing as is evidenced by his hog feeding operation. His truck driving required detailed record keeping. His actual functioning exceeds that which would normally be expected of a person with only an eighth grade education. It is probable that he could obtain sedentary work if a bona fide effort were made, even in his present state. It is determined that Ronald Gruver has experienced a 50 percent reduction in his earning capacity as a result of the November 8, 1987 injury. conclusions of law The occurrence of the fall on November 8, 1987 is not disputed. The dispute deals with whether or not the fall was a proximate cause for the necrosis which has developed in the claimant's right hip. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). The claimant has the burden of proving by a preponderance of the evidence that the injury of November 8, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert Page 6 and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The evidence from Drs. Reschly, Coates and Adams is stronger than that from Dr. Johnston. It is therefore determined that the November 8, 1987 is a proximate cause of the aseptic necrosis in claimant's right hip. An injured employee is entitled to recover healing period compensation until such time as maximum medical improvement is reached, the employee has returned to work, or the employee becomes medically capable of returning to employment substantially similar to that in which he was engaged at the time of injury, whichever occurs first. Iowa Code section 85.34(1). Ronald Gruver has not returned to work and from the evidence it appears as though he will never be able to return to work substantially similar to that in which he was engaged at the time of injury. The healing period is therefore terminated at the time when maximum medical improvement is reached. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981). Medical treatment which is maintenance in nature and does not improve the employee's condition does not extend the healing period. Thomas v. William Knudson & Son, Inc., 394 N.W.2d 124 (Iowa App. 1984). An employee has an obligation to make reasonable efforts in order to achieve a prompt recovery. Time that an employee delays entering into active treatment need not be compensated as part of the healing period. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Stufflebeam v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943). Benefits may be suspended if the employee has refused reasonable medical treatment. Whether the refusal is reasonable requires a weighing of the probability of the treatment's success against the risk of the treatment. Dotolo v. FMC Corp., 375 N.W.2d 25, 28 (Minn. 1985); 1A Larson The Law of Workmen's Compensation, section 13.22(b). In this case, it is determined that a period of approximately one year would be a reasonable amount of time to allow this claimant to decide whether or not he wanted hip replacement surgery and also to allow him the opportunity to reduce his activity level to one which would be consistent with preserving the artificial hip once the surgery has been performed. The claimant stated at hearing that he would have hip replacement surgery if it were to be performed by a good doctor. The record in this case discloses a number of well-regarded orthopaedic surgeons who could perform the procedure with a high expectation of a successful result. It is therefore determined that the claimant's entitlement to healing period compensation ended on December 31, 1989. He is entitled to recover permanent partial disability benefits commencing on January 1, 1990. If claimant elects to undergo hip replacement surgery, as appears likely from the record that has been made, he will be entitled to additional healing period compensation until he has recuperated from the Page 7 surgery in accordance with the normal rules governing termination of healing period benefits. The healing period entitlement as of the date of hearing is therefore determined to commence on May 2, 1988 and to run through December 31, 1989, a span of 87 weeks. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The head of the femur is the body part which is most affected. It does not affect only the leg, however. It actually affects the hip joint itself. It is noted that the recommended surgery is a total hip replacement, not merely a revision of the femoral head. The injury is therefore one which extends into the body as a whole and should be compensated industrially according to the loss of earning capacity rather than as a scheduled member disability of the leg. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). It is therefore determined that the permanent disability in this case is to be evaluated industrially, rather than under the scheduled member system. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). 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 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. The evidence from Dr. Reschly gives a good indication of the level of disability which would be expected to result from following successful hip replacement surgery. The Page 8 record clearly shows that it is probable that claimant's degree of disability would be reduced from its present level if he were to undergo the hip replacement surgery and the expected result were to be obtained. Vorthman v. Keith E. Myers Enterprises, 296 N.W.2d 772, 14 A.L.R.4th 1085 (Iowa 1980); Stufflebeam v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943). This is a case where the claimant should be entitled to recover the amount of permanent partial disability compensation which would be expected if the recommended surgery were performed and if the results obtained were as expected by the physicians who have addressed the matter in the record of this case. It is therefore determined that the expected result would leave Ronald Gruver with a 50 percent reduction in his earning capacity. This entitles him to recover 250 weeks of compensation for permanent partial disability under the provisions of Iowa Code section 85.34(2)(u). The rate of compensation is determined under one of the subparagraphs found in Iowa Code section 85.36. The most common method of determining the customary earnings is found in subsection 6 which is merely the average of the 13 consecutive calendar weeks which immediately precede the week in which the injury occurred. Ronald Gruver was working in the trucking industry. He worked an average of slightly more than 40 hours per week during the 13 weeks preceding the injury. He was classified as "casual" by his employer and worked only when needed. Others who were considered full-time possibly worked more hours than the claimant. The fact remains that he was employed in the trucking industry. Any individual who works 40 hours or more per week, on the average, is most certainly a full-time employee regardless of the industry, or the classification or characterization made by the employer. At a wage rate of $9.18 per hour, this claimant's earnings are well within the range of earnings for truck drivers which are commonly seen by this agency. Ronald Gruver's wages are not less than the usual weekly earnings of the regular full-time adult laborer in the trucking industry in the Des Moines, Iowa area. Therefore, his rate of compensation should be determined under Iowa Code section 85.36(6), rather than section 85.36(10). It has been previously found that his average weekly earnings for the appropriate 13-week period are $367.74. Since he is married and entitled to five exemptions, his rate of compensation is $246.40 per week. Claimant seeks to recover costs. The recovery for a medical report should not exceed the amount that would be recoverable as an expert witness fee if the physician had appeared at hearing or introduced testimony by way of deposition. Woody v. Machin, 380 N.W.2d 727, 730 (Iowa 1986). That limit is $150.00 per day as fixed by Iowa Code section 622.72. Accordingly, the recovery for the report from Dr. Reschly is limited to $150.00. order IT IS THEREFORE ORDERED that defendants pay Ronald Page 9 Gruver eighty-seven (87) weeks of compensation for healing period at the rate of two hundred forty-six and 40/100 dollars ($246.40) per week payable commencing May 2, 1988. IT IS FURTHER ORDERED that defendants pay Ronald Gruver two hundred fifty (250) weeks of compensation for permanent partial disability payable commencing January 1, 1990 at the rate of two hundred forty-six and 40/100 dollars ($246.40) per week. IT IS FURTHER ORDERED that all past due amounts be paid in a lump sum together with interest pursuant to Iowa Code section 85.30 from the date each weekly payment came due until the date of its actual payment. IT IS FURTHER ORDERED that claimant recover the costs of this proceeding in accordance with 343 IAC 4.33 in the amount of two hundred seventy-five and 90/100 dollars ($275.90). IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 10 Copies To: Mr. Barry Moranville Attorney at Law West Bank Building, Suite 212 1601 22nd Street W. Des Moines, Iowa 50265 Mr. Richard G. Book Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1108; 1802; 1803; 2907 3001 Filed December 27, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : RONALD GRUVER, : : Claimant, : : vs. : : File No. 888747 SUPER VALU STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108 Where three of four physicians opined that a causal connection exists, their opinions were adopted. 1802 Where physicians recommended hip replacement surgery, to be performed at the time the claimant elects, claimant's healing period was not extended indefinitely, but was rather terminated after allowing him one year in which to adapt to a lower level of physical activity as recommended by his primary treating physician. 1803 Claimant awarded permanent partial disability of 50 percent, industrial, based upon expected result of recommended hip replacement surgery. 3001 Gross weekly earnings were determined by the 13-week rule, even though the employee was classified as "casual" or part-time when the record showed that he had averaged more than 40 hours per week during the preceding 13 weeks. 2907 Cost recoverable for medical report was limited to an expert witness fee pursuant to Iowa Code section 622.72 ($150.00). Page 1 before the iowa industrial commissioner ____________________________________________________________ : KATHY JO ARNDT : : Claimant, : : vs. : : File No. 888751 WELLS' DAIRY, INC. : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ATLANTIC MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Kathy Jo Arndt, claimant, against Wells' Dairy, Inc., employer (hereinafter referred to as Wells'), and Atlantic Mutual Insurance Company, insurance carrier, defendants, for work ers' compensation benefits as a result of an alleged injury on January 19, 1988. On May 8, 1990, a hearing was held on claimant's petition and the matter was considered fully sub mitted at the close of this hearing. The parties have submitted a prehearing report of con tested 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. On January 19, 1988, claimant received an injury which arose out of and in the course of her employment with Wells'. 2. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $177.53. Page 2 issues The parties submitted the following issues for determi nation in this proceeding: I. The extent of claimant's entitlement to disabil ity benefits; and, II. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: 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 her demeanor while testifying, claimant is found credible. Claimant worked for Wells' off and on since 1984 due to various layoffs. Claimant had last returned to work from layoff before the alleged injury in December 1987. Claimant described this last layoff as short and this testimony is uncontroverted. Claimant left Wells' employment on November 1, 1988, under circumstances that will be discussed below. Her job at Wells' was a production worker. Most of the claimant's difficulties that she experienced with the injury herein occurred while operating the 18 and 14 wide packaging machines. Although the individual packages were very light, the job required a considerable amount of repetitive bend ing. Claimant was also required to perform a boxing job which involved considerable amount of lifting of 35 to 40 pound boxes. At the time of the injury, claimant began to experience severe pain in the right shoulder, upper back and right arm with right arm numbness. Claimant was initially treated by Dr. Doorenbos (first name unknown). This treatment involved cortisone shots which claimant said did not help. Claimant was then referred to an orthopedic surgeon, Dr. Pechacek (first name unknown) and claimant was taken off work for a period of time. Dr. Pechacek treated claimant with muscle relaxants, heat and ice. Defendant then transferred claimant's care to Kevin J. Liudahl, M.D. (specialty unknown). Dr. Liudahl took claimant off work as well. In June 1988, Dr. Liudahl released claimant to return to light duty work. Claimant was on light duty work until September until she returned to the 14 wide machine. Claimant's pain then returned and she left work and was referred to another physician, Dr. Duncan (first name unknown). In October 1988, Dr. Duncan released claimant to return to work for four hours of light duty and was referred back to Dr. Liudahl. Claimant's testimony with reference to these mat ters is uncontroverted. Dr. Liudahl then stated in a writ ten report that he could not provide claimant with a dis ability rating or work restrictions. He advised her to return to work and that if the pain continued she was to Page 3 "make her own career decisions." He noted that claimant was experiencing emotional unrest due to marital difficulties at the time. He, however, never stated what impact, if any, such distress had on claimant's shoulder and back problems. On November 1, 1988, claimant was informed by her supervisor that he needed someone to do all the jobs, not just light duty jobs. Claimant then left her employment at Wells'. Claimant has not worked in any capacity since out side of the home. Claimant has requested medical care after November 1, 1988, but this was refused by defendants. Claimant still experiences burning pain in the upper back and numbness of the right arm. Claimant cannot perform day to day activities that she once did and she is limited in her ability to lift heavy objects or perform repetitive bending. Claimant is currently making an attempt at voca tional rehabilitation by attending a training course enti tled "An Introduction to Data Processing." She hopes to continue in this effort in the future. It is found that claimant was compelled, on November 1, 1988, to terminate her employment at Wells due to the dis ability caused by the January 19, 1988 work injury. A find ing could not be made as to times off work prior to November 1, 1988, as claimant's testimony was too vague on the matter and there were no other exhibits to assist this trier of fact as to such times. It was further found that continu ously since November 1, 1988, claimant has been temporarily totally disabled from work as a result of the work injury herein and that claimant will not reach maximum medical healing until she completes a physical therapy program recommended by J. Michael Donohue, M.D. As claimant is still recovering from the injury, it is premature to evalu ate her permanent impairment or disability at this time. This finding is based primarily on the views of Dr. Donohue who evaluated claimant in January of 1989. Dr. Donohue diagnosed "status post cervical and parascapular strain with persistent symptoms." Dr. Donohue related claimant's symp toms to the injury of January 1988. Although he felt that the problems would not result in permanent impairment, he recommended physical therapy and stated that claimant would not reach maximum improvement until completion of this phys ical therapy program. Dr. Donohue also felt that claimant could not return to work activities that required use of the right arm at or above chest level and that claimant should avoid repetitive use of her right arm below chest level. These restrictions would prevent claimant from returning to work at Wells' in the job she was performing at the time of the injury. The undersigned does not think that the views of Dr. Liudahl in the October 1988 report conflicts with the above findings. He essentially told claimant that she should leave the employment of Wells' should she continue to expe rience problems. His views that claimant has no permanent disability appear quite inconsistent with his advice to claimant to leave employment if symptoms persist. However, the issue of permanency is not ripe for determination until claimant reaches maximum healing. Page 4 Finally, it is found that physical therapy recommended by Dr. Donohue is reasonable and necessary treatment of the work injury of January 19, 1988. The views of the orthope dic surgeon, Dr. Donohue, is given greater weight over those of Dr. Liudahl whose specialty is unknown. conclusions of law I. Under Iowa Code section 85.33(1) or 85.34(1), claimant is entitled to weekly benefits for temporary total disability or healing period from the date of injury until claimant returns to work; until claimant is medically capa ble of returning to substantially similar work to the work she was performing at the time of the injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. Claimant has not attained any of these criteria. A running award of tempo rary total disability or healing period will be made accordingly. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Dr. Donohue does recommend physical therapy as a course of treatment. Given the find ings, the medical benefits requested will be awarded. order 1. Defendants shall pay to claimant temporary total disability or healing period benefits at the stipulated rate of one hundred seventy-seven and 53/l00 dollars ($177.53) per week from November 1, 1988 until such time as the crite ria for ending such benefits is attained as set forth in Iowa Code section 85.33(1) or 85.34(1), whichever is applicable. 2. Defendants shall provide to claimant, at defen dants' expense, the physical therapy and other treatment recommended by J. Michael Donohue, M.D. 3. Defendants shall pay interest on unpaid weekly ben efits awarded herein as set forth in Iowa Code section 85.30. No credit shall be given for weekly benefits paid prior to hearing for any absences of work before November 1, 1988. 4. Defendants shall pay the costs of this action pur suant to Division of Industrial Services Rule 343-4.33. 5. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of August, 1990. Page 5 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Alice S. Horneber Attorney at Law 400 First National Bank P O Box 1768 Sioux City IA 51102 Mr. Judith Ann Higgs Attorney at Law 701 Pierce St, Suite 200 P O Box 3086 Sioux City IA 51102 1802 Filed August 3, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : KATHY JO ARNDT : : Claimant, : : vs. : : File No. 888751 WELLS' DAIRY, INC. : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ATLANTIC MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1802 Running award given where the doctor in the case recommended physical therapy before claimant could reach maximum healing and physical therapy had not been received. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH D. MUSGROVE, Claimant, File No. 888755 vs. A R B I T R A T I O N BARBER LUMBER COMPANY; and D E C I S I O N ELOISE DYKSTRA, MARVEL JONES, and MILDRED ANDEWEG, d/b/a JOHNSON SISTERS, F I L E D Employers, DEC 06 1989 and INDUSTRIAL SERVICES AUTO-OWNERS/IMT INSURANCE CARRIER, Insurance Carrier, Defendants. INTRODUCTION This is a.proceeding in arbitration brought by the claimant, Kenneth D. Musgrove, against Barber Lumber Company and Eloise Dykstra, Marvel Jones, and Mildred Andeweg, d/b/a Johnson Sisters and Auto Owners Insurance and IMT Insurance, insurance carriers, defendants, to recover benefits as a result.of an alleged injury sustained on April 30, 1987. This matter came on for a hearing before the deputy industrial commissioner in Des Moines, Iowa on September 25, 1989. The record consists of the testimony of the claimant; Conrad Garland and Dwayne Tiefenthaler; and joint exhibits A through I. ISSUES The issues the parties set out in their prehearing report for resolution are: 1. Whether there is a employer/employee.relationship? 2. Whether claimant's alleged injury arose out of and in the course of his employment? 3. Whether claimant's disability is causally connected to his alleged injury? 4. Claimant's entitlement to healing period or TTD disability, if any, and the rate for any benefits. 5. Claimant's entitlement to 85.27 medical benefits. 6. Whether claimant is an independent contractor. REVIEW OF THE EVIDENCE Claimant testified he graduated from high school in 1957 and finished a union apprenticeship with United Auto Workers in 1968. Claimant stated he was a truck and jeep mechanic during his 6 months in the military service shortly after his high school graduation. Claimant's employment until March 1980 was basically his twenty three years at Maytag performing various jobs as a repairman, sander, or welder. Claimant said he then went to John Deere in 1980 as a repairman with higher pay. Claimant stated there were several layoffs at John Deere, the last two being August 3, 1986 and during the period in which he was allegedly injured on April 30, 1987. Claimant testified he began doing a few jobs for Barber Lumber Company in late 1986. He also acknowledged he had a beekeeping operation. Claimant testified he was looking for jobs to do through the Barber Lumber Company and Mr. Conrad Garland was his main contact. Claimant said he received $792.00 from the Barber Lumber Company for work done in 1986. Claimant related that he received $500.00 in 1987 from the Barber Lumber Company on a Bogert job based on an $8.00 per hour rate. Claimant admitted he used his own equipment, ladder and hand tools. Claimant acknowledged he had no conversation with Barber Lumber Company as to W-2's or independent contractor status. Claimant said he wasn't soliciting carpenter work except through Barber Lumber Company. Claimant testified he made $10,740.00 at John Deere in 1986 and $3,000 approximately in 1987. Claimant said he received $799.00 from the Barber Lumber Company jobs and $2,045 from other off-farm labor income in 1987. Claimant described the $2,045 as income he received directly from the consumer for miscellaneous jobs he did for,them. Claimant couldn't recall specifically whether any of the $2,045.00 came from Barber Lumber Company referrals. Claimant testified in more detail as to certain referral jobs from Barber Lumber Company prior to April 30, 1987, but for purposes of this decision, it is not necessary to set out additional information concerning these. Claimant said he went to the job site on the Johnson sisters' farm on April 30, 1987 to complete a siding job on a cupola on top of a grain bin. Claimant stated a Mr. Balensiefen had walked off this job earlier and had left some scaffolding in place on top of the grain bin. Claimant said he understood that Mr. Garland of Barber Lumber Company was requested by the grain bin owners, the Johnson sisters, to find someone to complete the work. Claimant said Mr. Garland sent him to this job site about one month previously to replace some windows in the cupola. Claimant said this siding and window job was based on $8.00 per hour and Barber Lumber Company would furnish the material and claimant would bill Barber Lumber Company for the labor. Claimant was to receive no money for travel time. Claimant said the job he did for the defendant Johnson sisters, was a referral from defendant Barber Lumber Company and he had no contact with the Johnson sisters personally. Claimant testified he was told the morning of April 30, 1987 that some material was needed on the job to beef up the scaffolding. Claimant acknowledged he used all his own tools, ladder and equipment on this job. Claimant said he fell on April 30, 1987 when he was measuring and the entire scaffolding collapsed as he was stepping on it. Claimant said he hit the roof and bounced about 40 feet. Claimant described his injuries which involved a fractured right femur, a fractured right ankle and bumps and bruises. Claimant described in part the medical treatment he received including two surgeries. Claimant said he returned to work at John Deere April 1988 for seven weeks and was off five weeks for removal of a plate in his ankle and then returned to John Deere. Claimant said he walks with a limp because his right leg is 5/8 of a inch short and he has no feeling in the front part of his foot or toes. Claimant said he missed a total of five weeks work from John Deere since April 30, 1987 because of his injury. Claimant acknowledged that when he was called by Garland he wasn't requested to come immediately nor could Barber Lumber Company obligate him to quit a job he would be doing at the time. Claimant agreed he could refuse to take a job if he didn't want it. Mr. Conrad Garland testified he is president of defendant Barber Lumber Company and has been president for over thirty years and has worked there fifty two years. He said he first knew of this Johnson sisters' farm project through Randy Balensiefen who had ordered materials from Barber Lumber Company for a project on this farm. Mr. Garland said he understood Balensiefen gave up the job and decided not to handle it. Garland said he received a call from Hawkeye Farm Management which was managing the Johnson sisters' farm indicating they needed help to complete the job. Garland emphasized he never hires employees to work jobs off the Lumberyard premises except he has three employees who deliver materials to the job site. Garland said he prepares W-2's for his employees. He indicated he prepared a 1099 misc. for the claimant. Garland testified he does not get a commission or fee for referring carpenters like claimant to do certain jobs for his lumber customers. Garland said his arrangement with Hawkeye Farm Management through a Dwayne Tiefenthaler was that Garland would pay the claimant's bill at $8.00 per hour and Hawkeye Farm Management would reimburse Barber Lumber Company. Garland said he didn't direct the work nor could he recall giving claimant a list of things to do as this would come from the farm manager. Garland said that the company scaffolding is charged out for a fee to the user and is the customer's expense. Garland stated he asked claimant if he had insurance in case he got hurt. Claimant told him his insurance would pay if he got hurt. Garland emphasized there was no discussion with claimant as to workers compensation. Garland said claimant would periodically come to his place of business and look for referral jobs to do. Garland emphasized that it was common in his fifty two-years of lumber business for people to come in and ask for references. Garland indicated he would pass on the information between the customer and job inquirer. There was testimony regarding other jobs that Garland referred to claimant but these were basically similar arrangements and there is no need to set out any further testimony as to these other jobs as it is cumulative at most. Dwayne Tiefenthaler testified he has been with Hawkeye Farm management since December 1978. He described his work and duties which involve working with absentee farm owners like the Johnson sisters. Tiefenthaler said he has known Garland since 1973 and sought a carpenter's name from him to finish the Johnson sisters' farm repair job. Dwayne emphasized that Garland never gave him the impression that Garland would have any of his men do the work. He said he never met claimant before today and never supervised claimant nor was Garland to supervise the claimant. Richard Tabor testified through his deposition on March 30, 1989 that he farms the Johnson sisters' farm which is managed by Hawkeye Management through a Dwayne Tiefenthaler. Tabor indicated the farm manager has the first say as to who was hired. Tabor described the nature of the problem that was being repaired on the cupola and grain bin. Tabor indicated they were having a hard time finding someone to do the job because it was so high in the air. He indicated a lot of people were contacted as to whether they knew someone who would do this kind of work. He said one was Randy Balensiefen who Tabor knew and suggested that he be considered to do the work. He said Balensiefen got the job and ordered the lumber from the defendant Barber Lumber Company. He stated that Balensiefen left the job and state in July or August 1986 without notice after having worked one month on the project. Tabor testified that the farm manager and he attempted to find someone also. He said Mr. Con Garland gave them the name of the claimant. Tabor said he described the job with claimant and then turned it over to Tiefenthaler of Hawkeye Management to discuss the actual bid. Tabor indicated he understood Barber Lumber Company did not have any input in the financial arrangements with the claimant. Tabor emphasized he told claimant on three different occasions that the scaffolding was unsafe and needed to be redone. Tabor understood that claimant did not repair or redo the scaffolding before he got on it. Tabor related that his understanding was the job was pretty much left to claimant as to his own devices in how to finish it. There was no other medical evidence or reports except any medical referred to in claimant's testimony and discussion of his treatment. APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 30, 1987 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). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 30, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). An independent contractor is one who carries on an independent business. Mallinger v. Webster City Oil Co., 21 Iowa 847, 851, 234 N.W. 254, 257 (1929). There are eight factors which are considered. Henderson v. Jennie Edmondson Hospital, 178 N.W.2d 429 (Iowa 1970); Nelson v. Cities Services Oil Co., 259 Iowa 1209, 146 N.W.2d 201 (Iowa 1967). REVIEW OF THE EVIDENCE The main underlining issue in this case is whether claimant is an independent contractor or an employee of either or both defendants. The overwhelming evidence shows claimant was an independent contractor. Claimant was employed with John Deere Company. Claimant testified to various periods of layoffs from John Deere, some lasting several months. Claimant sought odd contracting jobs to do during his layoffs. Claimant had done various jobs that were referred to him by Conrad Garland, president of defendant Barber Lumber Company. Garland was in the lumber business fifty two years. He testified it was common for people to ask him if he knew of people who could do carpenter work. Garland made referrals over the years. Claimant periodically inquired of Garland as to referral jobs. Claimant contends that because Barber Lumber paid him for the completed jobs, that this made him an employee. Claimant said that if the customer or owner paid him directly, then claimant considered himself an independent contractor. It is logical and understandable that, since defendant Barber furnished the lumber, that it was convenient for the owner to coordinate the labor into the same bill. The farm manager and tenant contacted Mr. Garland as to possible names of people who may be able to finish the Johnson sisters' farm job and was looking for work. Claimant's name was proposed and claimant made the arrangements directly with Dwayne Tiefenthaler of Hawkeye Farm Management. Claimant's 1987 income tax return produced into evidence (joint Exhibit I) supports the defendant's contention that claimant was a self employed/independent contractor on the Johnson sisters' farm project. It is presumed claimant filed his tax returns honestly and correctly. It is presumed the tax preparer properly filled out the return based on the written and oral information given to him by the claimant and based on the preparers knowledge of the law. The preparer has an obligation to question information that appears incorrect and require supporting documents. Joint Exhibit G is a 1099 MISC statement that is given to independent contractors or nonemployees. Barber Lumber Company is obligated under federal-state tax laws to provide the proper form to an employee. A W-2 is provided if a person is an employee and shows certain withholdings of state, federal, and social security taxes. A 1099 Misc form is given to people to whom a certain amount of money has been paid but who was not an employee. It is presumed Barber followed the law. If claimant thought he was an employee, he could have objected to the 1099 and requested a W-2. He could also have reflected this income as wages on his 1987 tax return. Claimant's tax return (Jt. Ex. I) reflects $799 off farm income which is the amount he received for doing work on the Johnson sisters' farm. It also shows $2045 of additional off farm income. Claimant agrees he was an independent contractor as to this $2045. Joint Exhibit A shows claimant paid self employment tax of $24.00 on the 1987 amount he received for work on the Johnson sisters' farm. Claimant should not pay self employment tax if he is an employee. As to the defendant Johnson sisters, there is no evidence showing an employer/employee relationship. The farm manager made the arrangements to have the work done on the defendant Johnson sisters' farm. It appears claimant feels this defendant is liable since the scaffolding was already on the farm from a prior independent contractor and the tenant knew it was unsafe. The tenant told claimant the scaffolding was unsafe, but.this doesn't make the defendant an employer or responsible party, even though he is also a relative of the Johnson sisters and his wife has a financial interest through a life estate in the farm. There are certain factors which determine whether an employer/employee relationship exists. The defendants did not have the right to discharge or terminate the claimant, nor to tell the claimant how to do the work. The defendants did not have the right to supervisor the claimant with any authority. The claimant used his own tools or rented equipment. The defendants did not control the progress of the work. There was no written contract. The intentions of both parties was not one of an employer/employee arrangement. The defendant was not in the business of having his employees go off the premises to build or repair, but at most to only deliver materials to a particular project. The undersigned finds the claimant was an independent contractor and was not an employee of either defendant. This above issue is dispositive of all the other issues; therefore the undersigned will not discuss the other issues set out by the parties. Claimant takes nothing from these proceedings. FINDINGS OF FACT 1. Claimant was employed at John Deere Company as his regular employment, but due to a temporary layoff, claimant searched for odd carpenter jobs to supplement his family income together with other self employment activities he had. 2. Claimant was responsible to furnish his own tools on the Johnson sisters' farm project. 3. Claimant had the right to employ assistance without consulting the defendants and was not under the control of the defendants. 4. Claimant was to perform his self employment carpenter jobs at a set $8.00 per hour on April 30, 1987 when he fell from a scaffolding on the Johnson sisters' farm project. 5. Claimant received a 1099 MISC tax form for work he did in 1987 on the Johnson sisters' farm and reported the same as self employment income. 6. The original intent of the parties or their not one of an employer/employee relationship but one independent contractor. 7. Claimant's injury on April 30, 1987 was not employment of either defendant. CONCLUSION Claimant was a self employed/independent contractor on April 30, 1987 when he fell from the scaffolding on the Johnson sisters' farm. Claimant's injury on April 30, 1987 did not arise out of and in the course of any employment with any defendant. Claimant was never an employee of either defendant. Since claimant was an independent contractor he is not entitled to any recovery under the Iowa workers compensation law. ORDER THEREFORE IT IS ORDERED: That claimant takes nothing from these proceedings. That costs of these proceedings are assessed against the claimant pursuant to Iowa Industrial Services Rule 343-4.33. Signed and filed this 6th day of December, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Larry D. Spaulding Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309 Mr. Robert C. Landess Attorney at Law 2700 Grand Avenue, Ste. 111 Des Moines, Iowa 50312 Mr. Vern M. Ball Attorney at Law 207 S. Washington P.O. Box 129 Bloomfield, Iowa 52537 1504 Filed December 6, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH D. MUSGROVE, Claimant, vs. File No. 888755 BARBER LUMBER COMPANY; and ELOISE DYKSTRA, MARVEL JONES, A R B I T R A T I O N and MILDRED ANDEWEG, d/b/a JOHNSON SISTERS, D E C I S I O N Employers, and AUTO-OWNERS/IMT INSURANCE CARRIER, Insurance Carrier, Defendants. 1504 Held claimant was an independent contractor. Claimant took nothing from these proceedings. before the iowa industrial commissioner ____________________________________________________________ : DOUGLAS BROWN, : : Claimant, : : vs. : : File No. 888774 JOHN MORRELL & CO., : : A P P E A L Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 9, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 9998 Filed September 12, 1991 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ : DOUGLAS BROWN, : : Claimant, : : vs. : : File No. 888774 JOHN MORRELL & CO., : : A P P E A L Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 9, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DOUGLAS BROWN, : : Claimant, : : vs. : File No. 888774 : JOHN MORRELL & CO., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed November 18, 1988. Claimant allegedly sustained a work injury to the cervical spine on October 11, 1988 and now seeks benefits under the Iowa Workers' Compensation Act from his employer, John Morrell & Company, and its insurance carrier, National Union Fire Insurance Company. Hearing on the arbitration petition was had in Sioux City, Iowa, on June 13, 1990. The record consists of joint exhibits 1 through 38 (many of which are irrelevant to any issue presented in this contested case) and the testimony of claimant and Connie Thompson. issues Pursuant to the prehearing report, the parties have stipulated: that an employment relationship existed between claimant and John Morrell at the time of the alleged injury; that if defendants are found liable for a work injury causing temporary and permanent disability, claimant is entitled to healing period or temporary total disability benefits from October 19 through October 28, 1988 and November 15, 1988 through June 11, 1989; that if the alleged work injury caused permanent disability, it is an industrial disability to the body as a whole; that the appropriate rate of weekly compensation is $184.11; that affirmative defenses are waived. Issues presented for resolution include: whether claimant sustained an injury arising out of and in the course of his employment on October 11, 1988; whether the injury caused temporary or permanent disability and the extent of the latter; the extent of claimant's entitlement Page 2 to medical benefits; taxation of costs. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant, age 37 at the time of hearing, began employment with defendant in 1986. John Morrell & Company is a meat packing enterprise. Prior to the alleged injury, he boxed livers, pulled tongues, skinned picnic hams (with a machine) and worked in the "combo" room. This work included putting liners into large cardboard boxes known as combos. On or about October 11, 1988, claimant woke up in the morning and found himself unable to get out of bed due to neck pain. Claimant worked the day before, but does not recall any specific incident giving rise to injury. However, he notes that on many occasions he has slipped or been struck on the head when stacking combos. On October 28, 1988, claimant presented to the Marian Health Center with complaints of right shoulder and neck pain which had developed a week ago Wednesday. Admission notes reflect that claimant "woke up [with] it, denies injury." Further notes showed that claimant on that date "wonders if pain is from work." Claimant was seen by A. Mattis, M.D. His history was that claimant presented with a complaint of nine days of right posterior shoulder pain and neck pain and that he was unable to get out of bed. No work incident is cited, but Dr. Mattis writes: The patient kept trying to relate this to work, and persistantly [sic] asked if work had caused this injury. I advised him that there was no way that I could be certain one way or the other whether his work contributed to this, since all he told me he does at work is basically lift boxes. I told him that I had no idea why this pain started other than the fact that it was just a muscle strain, perhaps related to lifting. Dr. Mattis discharged claimant with a diagnosis of mild muscle strain to the right shoulder and neck. Claimant was seen again at the Marian Health Center on November 16, 1988 (one day before the petition in this cause was signed by his attorney). He was seen by J. Knerl, M.D., who wrote: The patient denies any definite history of trauma to this. He and his female friend both wonder if this could be caused from work. He cannot give any definite incident of work that this could have been caused by, but he says after working one day it was painful the next morning. Dr. Knerl and Dr. Mattis were each given a history of Page 3 no previous trauma to the neck. Dr. Knerl's impression was of probable C5 disc. Claimant was eventually seen by Horst G. Blume, M.D. Dr. Blume's admission notes of November 22, 1988 include the following passage: The patient says this injury has to do with his working situation. He said on 10-19 is when he first experienced pain. He said that after work that night he went home, as usual, and went to sleep and the next day he woke up with this pain and that is when it first started. A myelogram showed that claimant had a ruptured cervical disc at C5-6. Claimant underwent surgery on November 28 described as removal of extruded ruptured disc C5/6 centrally and right (two extruded disc pieces on the right side) and partial hemicorpectomy C5 and C6 with unroofing of the cervical spinal canal and nerve roots bilaterally, decompression of the nerve roots and spinal cord. Pre- and post-operative diagnoses were of extruded ruptured disc C5-6, right and centrally with lower cervical nerve root irritation and compression signs; encroachment of cervical spinal canal and nerve root canal centrally and bilaterally with spinal cord impingement. On January 20, 1989, Dr. Blume wrote that claimant was injured at his place of employment on October 19, 1988. In a letter of October 12, 1989, Dr. Blume wrote claimant's attorney that "following work on October 19, he began to have the pain as described above . . ." It was Dr. Blume's opinion within a reasonable medical probability that the extruded disc at C5-6 was the result of "work related activities at John Morrell and Company." Dr. Blume assigned a permanent partial impairment rating to the body as a whole of 15 percent. Dr. Blume was apparently of the view that claimant had no preexisting neck problems. However, chart notes of claimant's family physician, Keith O. Garner, M.D., indicate that claimant suffered a "snapped neck" on October 9, 1980 and that on March 20, 1985, claimant complained of consistent back pain. "Neck sore -- upper thorax sore; not w/c" (presumably "workers' compensation"). Claimant was seen for evaluation on November 20, 1989, by Joel T. Cotton, M.D. Dr. Cotton opined that it was impossible to state with any reasonable degree of medical certainty that a causal relationship existed between any work-related injury and claimant's cervical disc problem and subsequent surgery. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on October 11, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d Page 4 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The claimant has the burden of proving by a preponderance of the evidence that the injury of October 11, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). This writer must conclude that claimant has failed to meet his burden of proof in establishing a work injury causally related to his ruptured cervical disc. He simply woke up one morning with neck and shoulder pain. While he worked the day before, claimant does not recall any specific incident or injury. Dr. Blume believes to a reasonable degree of medical certainty that a causal nexus exists between the cervical rupture and claimant's "work related activities at John Morrell and Company." However, it is extremely unclear what Dr. Blume means. There does not appear to have been any single traumatic incident giving rise to the disc rupture. In cases brought before this agency, a suddenly herniated or ruptured disc is very commonly described as accompanied by immediate sharp or stabbing pain. Dr. Blume does not indicate that he considers the ruptured disc to have been a cumulative injury and, in his October 12, 1989 letter, appears to misunderstand claimant's history in that he believes that claimant began having pain "following work on October 19." Rather, it appears that many hours and a full night's sleep lay between claimant's last work and the onset of symptoms. It might also be noted that Dr. Blume apparently was not aware that claimant had a preexisting Page 5 history of neck complaints, although apparently not sufficiently severe to cause lost work. Dr. Cotton looks at the same records (including claimant's deposition and Dr. Garner's chart notes) and concludes that claimant's disc herniation cannot with any reasonable degree of medical certainty be causally linked to the employment. There is without question a possibility that claimant's work activities may have caused his injury. However, claimant must prove not merely a possibility, but a probability. On this record, it cannot be said that this burden has been met. Accordingly, other issues are moot. Page 6 order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. The costs of this action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 1402.30 Filed January 9, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : DOUGLAS BROWN, : : Claimant, : : vs. : File No. 888774 : JOHN MORRELL & CO., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1402.30 Claimant woke up one morning with pain, later found to be a herniated cervical disc. He had worked the day before, but recalled no traumatic incident. Medical evidence was in conflict. Claimant showed only a possibility, not a probability, that injury was work related. No benefits were awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GEORGE KNAPP, Claimant, File No. 888775 vs. A P P E A L OSCAR MAYER FOODS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 30, 1990 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law P.O. Box 209 Waukee, Iowa 50263 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Ste 16 Des Moines, Iowa 50312 9998 Filed July 10, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GEORGE KNAPP, Claimant, File No. 888775 vs. A P P E A L OSCAR MAYER FOODS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed October 30, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : AMANDA WAREHIME and DAVID : WAREHIME by MINDY EDGERTON, : their Mother and Next Friend, : : Claimants, : : File No. 888783 vs. : : D E A T H PIRIE TRUCKING, : : B E N E F I T S Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding for death benefits upon the petition of Amanda and David Warehime by their Mother and Next Friend, Mindy Edgerton, filed November 22, 1988. Larry Warehime is the deceased father of Amanda and David. Their petition alleges that his death arose out of and in the course of his employment with defendant Pirie Trucking on August 20, 1988 and seeks benefits under the Iowa Workers' Compensation Act from that employer and its insurance carrier, Liberty Mutual Insurance Company. Hearing on the petition was had in Fort Dodge, Iowa, on February 28, 1990. The record consists of joint exhibits 1 through 14, claimants' exhibits 15 through 19, 22 and 23, defendants' exhibits 20 and 24, and the testimony of the following witnesses: Mindy Jordison (formerly Edgerton), Donald Pirie and Alvin Lowary, M.D. issues Pursuant to the prehearing report, the parties have stipulated: that Larry Warehime ("decedent") was employed by Pirie Trucking on the date of his death; that the proper rate of weekly compensation is $403.95. Issues presented for resolution include: whether decedent sustained an injury causing death on August 20, 1988, arising out of and in the course of his employment; taxation of costs. Defendants seek to assert an affirmative defense of intoxication under Iowa Code section 85.16(2). This defense was ruled out of order at hearing because it was not listed as an issue on the hearing assignment order filed in this matter August 16, 1989. A review of the prehearing deputy's Page 2 notes does not reflect that this issue was asserted at the prehearing conference held on August 12, 1989. The hearing assignment order sets forth that only identified issues shall be considered at the hearing; this deputy lacks jurisdiction to modify the order of any colleague. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Decedent married Mindy Jordison on October 30, 1981 (the date shown on the marriage certificate; Jordison's memory was of October 31). Two children were born of the marriage: Amanda (born February 17, 1982) and David (born October 9, 1984). The marriage was subsequently dissolved by decree of the Polk County District Court filed December 18, 1985. The decree awarded Mindy custody of the two children and ordered decedent to pay as weekly child support $37.50 per child per week through age 18. Donald Pirie is the president of Pirie Trucking. He testified not only at the trial of this matter, but by deposition on May 23, 1989. He indicated that Pirie Trucking operates approximately 20 trucks and employs sufficient drivers that one is assigned to each truck. Decedent was assigned his own truck and a refrigerated trailer, and only he operated the vehicle. Randy Cahill was a fellow driver and a good friend of decedent employed by Pirie Trucking to drive a flatbed truck. About 5:30 p.m. on August 19, 1988, Pirie saw decedent and Cahill drinking Pepsi-Cola at the shop and visiting with one another. Cahill had already accepted a load to be delivered in Bloomington, Minnesota the next morning. Cahill and decedent left Fort Dodge early the next morning, Cahill driving while decedent napped in the sleeper compartment, but did not get far. Heading east on U.S. Highway 20, Cahill apparently fell asleep or passed out and drove off the road into a median strip where the truck rolled over, coming to rest upside down. Graphic photographs and descriptions from several witnesses show that the truck cab and sleeper compartment were severely crushed, especially on the driver's side. Cahill managed to escape, but decedent was wedged into the wreckage where he died of asphyxiation despite his own efforts and the efforts of would-be rescuers to extricate him. First on the scene was Shannan Fay, who testified by deposition on June 2, 1989. Ms. Fay helped Cahill out of the truck and heard decedent kicking in an effort to free himself, but she was unable to get to Mr. Warehime through the wreckage of the cab. It was plain to her that decedent was trapped or pinned in the sleeper compartment due to the extensive damage. She indicated that Cahill had been driving while decedent napped and that Cahill indicated he had fallen asleep at the wheel, but she smelled no alcohol Page 3 on his breath. Frank Metzger is an Iowa State Highway Patrol trooper designated as a technical accident investigator. Metzger testified by deposition on November 7, 1989. He testified to extensive instruction and experience in accident investigation, including observation of individuals who have consumed alcohol. Decedent was still trapped in the sleeper compartment when he arrived and rescue personnel were attempting to extricate his body. Based on his observations, he believed that decedent would have been unable to extricate himself drunk or sober and that alcohol consumption was not a substantial factor in decedent's death. In fact, autopsy results show that decedent had a blood alcohol level of .188 grams per deciliter, an unlawful level had decedent been driving the vehicle in which he met his death. Paul Whitmore testified by deposition on October 16, 1989. He is a police officer in Webster City, Iowa, and is certified as a technical accident investigator. He was dispatched to the accident scene at 4:00 a.m. and after learning from Cahill that decedent was still in the vehicle, looked into the cab by flashlight. He was able to see decedent's feet and lower legs but was unable to extricate him, even though decedent was apparently still alive, since Officer Whitmore was able to hear breathing sounds. He saw no way decedent could be treated or removed from the vehicle, despite the use of a pry bar, so was forced to stand by and wait for heavy rescue equipment to arrive. He believed that no one of decedent's physical stature in the position he was in could have removed himself, intoxicated or otherwise. Mark Whaley testified by deposition on November 7, 1989. Mr. Whaley is employed with the Webster City Fire Department as senior fire fighter. He is trained as an emergency medical technician, ambulance, and as the more advanced EMT-1, which prepares him to administer more advanced care at emergency scenes. He testified to training and experience in extrication of victims from vehicles. Whaley was called to the accident scene at 4:12 a.m. and surveyed the wreckage, but was unable immediately to accomplish an extrication despite numerous hand tools and prying tools. Once access was eventually obtained through a "Jaws of Life" device and the removal of panels, he found that the cab and sleeper had been crushed down and compressed a mattress against decedent's body. The mattress prevented the cab from coming directly in contact with decedent's body, but pinned him in the upper torso or chest area. It took 42 minutes to extricate decedent from the wreckage. Whaley testified that a healthy, conscious and alert person would have been unable to extricate himself from the wreckage and that even the rescue team could not have extricated the body without raising the truck into the air with a wrecker. Mr. Whaley specified that decedent was inhibited or prevented from inhaling and exhaling normally because of the mattress and pressure from the crushed roof around the nipple area of his chest. Page 4 Alvin Lowary, M.D., is a family practitioner and has been the Hamilton County Medical Examiner for ten years. He was called to the accident scene about 4:15 a.m. and found decedent's body still in the wreckage of the sleeper compartment. He testified that decedent's head was wedged into the corner of the sleeper and, in his view, he was so entrapped in the wreckage that this alone explained his inability to extricate himself. Asked specifically if Mr. Warehime's state of sobriety played a role in his death, Dr. Lowary indicated that decedent was so entrapped that he would have suffocated regardless of his state of sobriety. Thomas L. Bennett, M.D., testified by deposition on May 3, 1989. Dr. Bennett is a forensic pathologist and was the Iowa State Medical Examiner at the time of his deposition. Based on claimant's blood alcohol content and the lack of other serious injuries, pressure marks or indentations on the body, Dr. Bennett concluded following his autopsy that alcohol played a very substantial role in decedent's death by "positional asphyxiation." Dr. Bennett specified that he found no evidence decedent had been trapped and held in a position based on his examination of the body itself, and it is clear that the various accident scene eyewitnesses did not pass this information on to him. With all due respect to Dr. Bennett's expertise, his opinion was based on a misunderstanding of the physical circumstances of Larry Warehime's death. It is found that decedent died of asphyxiation when a mattress was crushed against his chest by the sleeper compartment roof while he was resting in that compartment while Randy Cahill drove, and that he would have been unable to extricate himself regardless of his state of sobriety. Donald Pirie has shown himself to be inconsistent as to the question of whether decedent's presence in Cahill's truck was authorized. In a motor carrier accident report filed by Pirie Trucking with the United States Department of Transportation and signed by Pirie, decedent was referred to as a "relief driver" and as "authorized" to be in the vehicle. At his deposition, Mr. Pirie testified: Q What is your understanding or do you know why it is that Larry Warehime was with Randy Cahill on this particular run? A Oh, I think they was just going to go together and share the revenue. That's what they had in their head. They had been drinking enough, what they shouldn't have been. One would take a nap while the other one drove, and the other would take a nap when the one drove, I suppose. Q Is this practice of drivers doubling up, is that something that's done in the trucking industry from time to time? A Oh, yeah. Page 5 Q And was that something that was done from time to time with your drivers with Pirie Trucking? A Yeah. Q And I assume that when that practice was done, you really had no objection to that? A No. Q And you understood and realize that this was the practice amongst the drivers, and you accepted that and didn't object to it? A No. They-- A guy would bring in his load of stuff and get somebody to even take his own truck to deliver it or whatever, if it was close by. Within a radius, they was never out overnight. Like if they was going to Des Moines or Minneapolis, turn around and come back. Q My point being, when a driver would double up with another driver, you didn't object to that? A No, no. Q And when that would happen, you would consider the other driver, that being the relief driver, to be doing part of his job? A Right. Q And that would be the case here with Cahill and Warehime? A Yeah. They were awful good friends. (Donald L. Pirie deposition, page 19, line 13 through page 20, line 25) In his testimony at hearing, Pirie attempted to explain away these damaging admissions. He characterized "authorization" as used in the accident report as referring only to decedent's status as a certified driver. He insisted that drivers are not authorized to hire or solicit co-drivers and that co-drivers must be approved in advance. He further specified that training is the only reason why a co-driver might be approved and that Cahill and Warehime had not been approved in advance, that decedent was not authorized to be a co-driver, that Cahill was not authorized to take a co-driver with him, and that the fatal trip was not for training purposes. Pirie's testimony is utterly at variance with his deposition testimony. The version given at his deposition is more reliable. Larry Warehime was authorized by general practice to act as a co-driver with Randy Cahill at the time of his death. Pirie had specified to decedent that he should never go out on the road if intoxicated and that he should find a substitute if he had consumed alcohol before driving. Of Page 6 course, Warehime was not the driver at the time of the fatal accident. The close proximity of the accident to Fort Dodge, the point of departure, indicates that Cahill performed all the driving duties up to the point when he lost control of the vehicle. Since the round trip was of approximately nine hours' duration, including unloading, it is not unlikely that Cahill and Warehime intended that each drive one way. conclusions of law Claimants have the burden of proving by a preponderance of the evidence that decedent received an injury on August 20, 1988 which arose out of and in the course of decedent's employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). By company practice, Larry Warehime was authorized to act as a co-driver for Randy Cahill on the morning of his death. This was decided as a question of fact as opposed to a conclusion of law because the operative facts are in dispute and different inferences can be drawn from those facts. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). In Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979), the court noted that the injury must be a natural incident of the work to arise out of the same, meaning it must be a rational consequence of a hazard connected with the employment. Injuries caused by the negligent act of coemployees were held to arise out of the employment; specifically, an "employee who associates with Page 7 other employees is exposed to the risk of injury arising from their acts or omissions." Larry Warehime's death arose out of his employment. The "in the course of employment" requirement is related but separate from the "arising out of" requirement. Under Iowa Code section 85.61(6), injuries are compensable with respect to employees "whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business." An injury is in the course of employment when it is within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. Bulman v. Sanitary Farm Dairies, 73 N.W.2d 27 (Iowa 1955). "Required" as used in section 85.61(6) does not necessarily mean an act in response to a direct command, but one that is in response to the employer's bidding or in any manner dictated by the course of employment to further the employer's business. Lindeman v. Cownie Furs, 234 Iowa 708, 13 N.W.2d 677 (1944). Actual work activity at the time of injury is not a requirement. Bushing v. Iowa Ry. & Light Co., 208 Iowa 1010, 226 N.W. 719 (1929). At the time of his death, decedent was by stipulation employed by Pirie Trucking. He was located where he reasonably might be in the performance of his duties as co-driver, and was engaged in doing something incidental to those duties: resting or sleeping while Cahill took a turn driving. The trip itself had been properly assigned to Cahill and clearly furthered the employer's business. Motor vehicle accidents are certainly dangers incident to the business of freight hauling. Thus, decedent was within the course of his employment when he was killed unless the surrounding circumstances somehow remove him from coverage. In particular, be it noted that decedent had been drinking at the time of his death, and it is probable from the general record that Randy Cahill was also to some degree impaired by alcohol. After all, claimant had been specifically warned not to drive after drinking, and it is commonly known that driving while intoxicated is unlawful. This law must be particularly well known to professional drivers. Claimants quite properly point to the case of Hawk v. Jim Hawk Chevrolet-Buick, Inc., 282 N.W.2d 84 (Iowa 1979) as supportive. Overruling Christensen v. Hauff Bros., 193 Iowa 1084, 188 N.W. 851 (1922), the court abrogated the "unusual and rash act" doctrine which formerly barred recovery by injured workers who were so engaged. Hawk had been president, sole stock holder and an employee of Jim Hawk Chevrolet-Buick. He flew his private plane to Council Bluffs, Iowa on company business and was killed in a crash shortly after take-off on his attempted return. Hawk held a Page 8 student pilot's certificate, but was not authorized for solo cross-country flights without being "signed off" by his instructor. Of course, he had not been at the time of his attempted return. Hawk had engaged in business meetings and the consumption of alcohol while in Council Bluffs in violation of Federal Aviation Administration regulations prohibiting flight within eight hours following alcohol consumption. His blood alcohol content was .147, or beyond that sufficient to impose criminal sanctions on motor vehicle operators. Weather conditions were poor and apparently contributed to the crash. In concluding that Hawk's death arose out of and in the course of his employment, the court cited Larson 1A The Law of Workmen's Compensation, section 30.22: "The so-called 'added risk' or 'added peril' doctrine has been based almost entirely upon this type of case. In other words, it is very doubtful whether, except in a few jurisdictions, there ever was a rule of general applicability to the effect that an employee forfeited his coverage by doing his job in a needlessly dangerous way. The doctrine in practice was usually pressed into service only in the incidental-activity cases . . .. The 'added peril' doctrine--in the sense of a doctrine that a needlessly dangerous method of doing the employee's active work takes him outside the range of compensation protection--is of no current importance." (Emphasis by the court.) Claimants correctly point out that Hawk's conduct was in many respects more "rash" than was the conduct of Larry Warehime. Both Hawk and Warehime presumably knew that driving or flying after consuming alcoholic beverages was unlawful and improper. However, Warehime did not actually drive, but was merely a passenger at the time of the fatal crash. He may have been negligent to even ride with an arguably intoxicated driver, but performing his job in this needlessly dangerous manner does not forfeit his coverage under the Act. Weather conditions do not appear to be a factor in the instant case. Whereas Hawk was an inexperienced student pilot not authorized for solo cross-country flights, the individual to whom decedent foolishly entrusted his life was a licensed and experienced over-the-road truck driver described by Donald Pirie as one of his best. The Hawk case did not specifically discuss the concept that violation of a statute or an employer's rule may remove the employee from the course of employment, Enfield v. Certain-Teed Products Co., 211 Iowa 1004, 223 N.W. 141 (1930). It has been held that benefits may be denied when the employee is in a place where he would not reasonably be expected to be in the course of employment or willfully does some act which creates a new and added peril to which his employment cannot reasonably be said to have exposed him. Mere negligence is not enough. Griffith v. Norwood White Coal Co., 229 Iowa 496, 294 N.W. 741 (1940). However, in Page 9 this case, decedent did not himself violate injunctions against driving while intoxicated. Rather, he was peacefully resting in the sleeper compartment as an authorized co-driver. This may have been negligent, but negligence is insufficient to deny benefits. It is accordingly held that Larry Warehime was killed in an injury that arose out of and in the course of his employment with Pirie Trucking. Parenthetically, even if the affirmative defense under section 85.16(2) had been properly at issue, claimants still would have prevailed. By far the better evidence is that Larry Warehime would have suffocated regardless of his state of sobriety. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimants Amanda Warehime and David Warehime death benefits of four hundred three and 95/100 dollars ($403.95) per week commencing August 20, 1988 and continuing until terminated pursuant to Iowa Code section 85.31(1)(b). Defendants shall pay to the Treasurer of the State of Iowa for the benefit of the Second Injury Fund the sum of four thousand and 00/100 dollars ($4,000.00) pursuant to Iowa Code section 85.65. All accrued benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Defendants shall file a first report of injury with this office within thirty (30) days of the signing and filing of this decision. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Neven J. Mulholland Attorney at Law 600 Boston Centre Page 10 P.O. Box 1396 Fort Dodge, Iowa 50501-1396 Mr. Tito Trevino Attorney at Law 503 Snell Building P.O. Box 1680 Fort Dodge, Iowa 50501 1101; 1107; 1110; 1111 1601 Filed November 29, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : AMANDA WAREHIME and DAVID : WAREHIME by MINDY EDGERTON, : their Mother and Next Friend, : : Claimants, : : File No. 888783 vs. : : D E A T H PIRIE TRUCKING, : : B E N E F I T S Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1101; 1107; 1110; 1111; 1601 Claimants' decedent was killed by asphyxiation when truck turned over while he was sleeping in sleeping compartment. Decedent was not specifically authorized to act as co-driver for this trip, but (despite conflicting evidence) was found to be generally authorized by company practice. Decedent had been drinking, probably with driver. However, since he was not driving at the time, he was personally guilty only of simple negligence, which was insufficient to take him out of the course of employment. Hawk v. Jim Hawk Chevrolet-Buick. Death benefits were awarded.