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                     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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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 
 

 
            
 
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            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.