BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BRETT A. HOWARD,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 892798
 
            TWEEDY EXCAVATING AND         :
 
            TRUCKING, INC.                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Defendant.               :       D E C I S I O N
 
                                          :
 
                                          :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on August 3, 1992, at Des 
 
            Moines, Iowa, wherein claimant seeks compensation for 
 
            temporary total disability benefits for an alleged November 
 
            22, 1988 injury for a period from November 23, 1988 through 
 
            January 17, 1989, amounting to eight weeks at the rate of 
 
            $345.82, which would amount to $2,766.56 and payment of 
 
            medical which would amount to $9,494.88, thereby, totaling 
 
            $11,038.73.  The parties put no sworn oral testimony on the 
 
            record and claimant offered into evidence claimant's 
 
            exhibits 1 through 10.  These exhibits are at least part of 
 
            the same exhibits that were admitted into evidence at a 
 
            hearing that was held on February 6, 1990.  An arbitration 
 
            decision concerning that hearing was issued on April 27, 
 
            1990.  The original cases had been filed against Tweedy 
 
            Excavating and Trucking, Inc., as defendant, and Merlin 
 
            Petersen, as defendant, but on the date of the hearing of 
 
            February 6, 1990, Linda Tweedy and Linda Tweedy doing 
 
            business as Tweedy Excavating and Trucking, Inc., filed for 
 
            bankruptcy, and on March 5, 1990, after the hearing but 
 
            before the decision had been rendered, the claimant 
 
            dismissed without prejudice his claim against Tweedy 
 
            Excavating and Trucking, Inc.  Defendant's exhibits are 
 
            A,B,C,D and E, which are new exhibits presented at the time 
 
            of this hearing and were not exhibits at the February 6, 
 
            1990 hearing.
 
            
 
                 The parties agreed that there was no need for a court 
 
            reporter and the waiver is on file.  There was no oral 
 
            testimony given anyway.
 
            
 
                 Defendant withdrew a confession of judgment that had 
 
            been filed February 6, 1990.  The undersigned allowed the 
 
            withdraw of that confession of judgment.  The defendant said 
 
            the confession of judgment was basically withdrawn upon the 
 
            dismissal from said action in March of 1990 anyway.  The 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            confession of judgement envelope was never opened.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant incurred an injury which arose out 
 
            of and in the course of his employment on November 22, 1988;
 
            
 
                 2.  Whether claimant's temporary total disability 
 
            period of January 23, 1988 through January 17, 1989, is 
 
            causally connected to claimant's alleged work injury;
 
            
 
                 3.  Whether claimant is entitled to 85.27 medical 
 
            benefits represented by exhibit 9 in the amount of 
 
            $7,728.32, the issue being causal connection and 
 
            authorization;
 
            
 
                 4.  Whether claimant timely filed his petition under 
 
            the provisions of Iowa Code section 85.26, statute of 
 
            limitations; and,
 
            
 
                 5.  Whether claimant was an employee of defendant on 
 
            November 22, 1988.
 
            The undersigned is taking official notice of the agency's 
 
            file in this matter.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having considered all the 
 
            evidence, there being no oral testimony, finds that:
 
            
 
                 Claimant originally filed his petition timely against 
 
            Tweedy Excavating and Trucking, Inc., as a corporation, and 
 
            also on that same date filed a petition against defendant 
 
            employer Merlin Peterson.   The separate petitions were 
 
            filed the same date and given the same file number.  On the 
 
            date of the hearing on the original petitions on February 6, 
 
            1990, the deputy hearing that case indicated that defendant 
 
            Tweedy Excavating and Trucking, Inc., did not contest the 
 
            stipulations of the claimant and further indicated that on 
 
            the date of the hearing Linda L. Tweedy doing business as 
 
            Tweedy Excavating and Trucking, Inc., filed bankruptcy and 
 
            that on March 5, 1990, the claimant dismissed without 
 
            prejudice his claim against Tweedy Excavating and Trucking.  
 
            It appeared that this Tweedy Excavating and Trucking's name 
 
            was being loosely tossed around.  One of claimant's original 
 
            petitions was filed against the corporation.  The original 
 
            petition did not have Linda Tweedy doing business as.  It is 
 
            therefore presumed that when the deputy referred to Tweedy 
 
            Excavating and Trucking or defendant Tweedy Excavating and 
 
            Trucking, Inc., it was referring to the corporate name.  
 
            Notwithstanding the above, the parties basically for 
 
            decision purposes proceeded on the basis that the only 
 
            defendant thereafter in that case heard on February 6, 1990, 
 
            and as reflected in the decision, was Merlin Peterson.
 
            
 
                 The fact is that at that time, even though it does not 
 
            appear that the parties knew or were fully aware of it, the 
 
            Tweedy Excavating and Trucking, Inc., had its authority to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            operate and its certificate of incorporation cancelled on 
 
            November 25, 1987, as represented by defendant's exhibit A.
 
            
 
                 Although one can argue correctly that if one is 
 
            operating a corporation whose charter has been cancelled, 
 
            then there is personal liability on behalf of those 
 
            operating the cancelled corporation and that they would have 
 
            the status of "doing business as" and would have personal 
 
            liability.
 
            
 
                 One would then ask why the claimant, if he seeks 
 
            additional compensation, wouldn't file against Linda L. 
 
            Tweedy doing business as Tweedy Excavating and Trucking.  
 
            The answer to that is simply that, and as represented by 
 
            defendant's exhibit D, Linda L. Tweedy was discharged in 
 
            bankruptcy as reflected on said exhibit on May 9, 1990, and 
 
            as represented by page 2 of that exhibit which is creditor's 
 
            schedule A of the bankruptcy filing.  Brett A. Howard was 
 
            listed as a creditor with a contingent or disputed debt of 
 
            $11,000 that might be owed.  Page 3 of said exhibit D also 
 
            refers to Linda L. Tweedy doing business as Tweedy 
 
            Excavating and Trucking, Inc.
 
            
 
                 Claimant takes the position that Linda Tweedy perjured 
 
            herself in her deposition taken on May 31, 1989, in which 
 
            she indicated Tweedy Excavating and Trucking was a viable 
 
            corporation or at least she was doing acts through checks 
 
            and a stamp on the back of checks that had the corporate 
 
            name thereon.  Through statements of claimant's counsel at 
 
            the hearing, it appears that they are proceeding on this 
 
            perjury basis as to undoing or being able to reach Linda 
 
            Tweedy personally because of her perjury.  As shown on 
 
            defendant's exhibit D, page 1, paragraphs 2A and 2B, there 
 
            is reference to debts that may be nondischargeable under 
 
            certain sections of the bankruptcy code which sections deal 
 
            with an area of fraud, etc.  It was at the bankruptcy level 
 
            that the claimant should have raised the point in Linda 
 
            Tweedy's individual bankruptcy so as to have the amount 
 
            claimant feels he is owed not discharged and therefore if 
 
            not discharged, he would have the right to proceed assuming 
 
            he proceeded in accordance with the law.
 
            
 
                 Keep in mind, the bankruptcy proceeding did not have 
 
            the corporation as a debtor.  This is not uncommon in that 
 
            often you have a corporation that is "too poor" to file 
 
            bankruptcy and the necessity of proceeding through that 
 
            expensive procedure is not necessary or usually warranted 
 
            which is different as to one's personal liability if they 
 
            are doing business as or under a trade name in a 
 
            non-corporate status.
 
            
 
                 The case at bar has been brought against the 
 
            corporation.  As indicated before, it is not an existing 
 
            entity and the claimant is not able to resurrect a non-
 
            entity to get at the personal liability of a person who may 
 
            have wrongfully been doing business under the guise of a 
 
            corporation and after that person has been solely relieved 
 
            of any liabilities (debts), use the corporate procedure and 
 
            workers' compensation hearing to reopen and get at someone 
 
            on a personal level.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned is not contending that Linda Tweedy was 
 
            doing anything fraudulently and it is not the place of this 
 
            agency to unravel items that possibly should have been taken 
 
            care of in the bankruptcy court.  The claimant had his 
 
            remedy there but did not timely choose to exercise it, if he 
 
            thought a fraud or perjury was being perpetrated.
 
            
 
                 The undersigned will first discuss the statute of 
 
            limitations question as it may dispose of the other issues.  
 
            Claimant dismissed the corporation in March of 1990.  The 
 
            original petition against Tweedy Excavating and Trucking, 
 
            Inc., was timely filed.  Claimant then brought an action 
 
            against Linda Tweedy doing business as Tweedy Excavating and 
 
            Trucking on a petition filed November 13, 1990.  It is 
 
            obvious from said petition that the corporation wasn't 
 
            named.  Said petition alleges an injury date of November 22, 
 
            1988.  A motion to dismiss was filed indicating that Linda 
 
            Tweedy had been discharged in bankruptcy and the motion was 
 
            ultimately overruled by a deputy's order because Tweedy 
 
            Excavating and Trucking, Inc., the corporate name, was then 
 
            inserted by an amendment filed on December 10, 1990, which 
 
            amendment named and substituted Tweedy Excavating and 
 
            Trucking, Inc., for Linda Tweedy doing business as Tweedy 
 
            Excavating and Trucking.  This new entity was substituted 
 
            more than two years after the alleged injury.  Therefore, 
 
            the two year statute of limitations would be applicable 
 
            unless workers' compensation benefits would have been paid 
 
            by the defendant, thereby, enlarging the period to three 
 
            years.  Keep in mind that the corporation was still a 
 
            nonexistent creature and the mere filing of an action or 
 
            serving an individual that may have at one time been 
 
            connected with the corporation does not reinstitute a 
 
            corporation or make it a viable entity.  There is no way a 
 
            person could have gotten under the Iowa law jurisdiction 
 
            over the corporation by the certified mail served on Linda 
 
            Tweedy personally which was claimant's evidence of service.  
 
            The amended petition was sent to Tweedy Excavating and 
 
            Trucking.
 
            
 
                 Claimant's exhibits 7 and 8 are copies of various 
 
            checks and stubs showing that the checks and pay stub 
 
            records of Tweedy Excavating and Trucking, Inc., were still 
 
            being used into 1988.  On claimant's exhibit 8, page 2, is a 
 
            December 9, 1988 check payable to Brett Howard which refers 
 
            to partial payment and on page 1 of said exhibit there is a 
 
            check for $200 to Brett Howard dated December 6, 1988, and 
 
            refers to workers' compensation payments November 23 through 
 
            November 25.  Linda Tweedy signed the checks but there is no 
 
            indication of the capacity in which she signed them.  As 
 
            mentioned earlier, Linda Tweedy cannot resurrect a 
 
            nonexisting former corporation by signing a check and using 
 
            a former corporation's check.  As covered earlier, she may 
 
            be incurring personal liability or additionally, as claimant 
 
            contends, trying to defraud someone but since she took 
 
            personal bankruptcy, the fraud or perjury element should 
 
            have been dealt with at that time and wasn't.  The 
 
            undersigned is not in a position to solve a bankruptcy 
 
            problem.  The undersigned is not contending that Linda 
 
            Tweedy was engaged in a fraud or trying to trick anyone. It 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            would seem to appear, taking everything into consideration 
 
            and having read defendant's exhibit C, the arbitration 
 
            decision, that claimant had been divorced from her husband 
 
            along with whom she ran the trucking business, and she may 
 
            have been using old supplies notwithstanding the possibility 
 
            of incurring personal liability.  Again, she solved her 
 
            personal liability problem by her bankruptcy actions.  
 
            Claimant is trying to get at Linda Tweedy personally knowing 
 
            the corporation has nothing and isn't existing.
 
            
 
                 The undersigned therefore finds that the claimant's 
 
            amendment to her original petition filed on December 10, 
 
            1990, substituting Tweedy Excavating and Trucking, Inc., for 
 
            Linda Tweedy doing business as Tweedy Excavating and 
 
            Trucking was filed after the two year period and after the 
 
            statute of limitations had run and, therefore, not timely 
 
            filed.  The undersigned further finds that the checks 
 
            written by Linda Tweedy on Tweedy Excavating and Trucking, 
 
            Inc., did not extend or allow a petition to be filed within 
 
            three years rather than two years.
 
            
 
                 Although the above issue actually in and of itself 
 
            disposes of this matter, the undersigned will address 
 
            certain other issues but not necessarily all the remaining 
 
            issues that the parties set out at the beginning of the 
 
            hearing.
 
            
 
                 The arbitration decision by Deputy Helenjean Walleser 
 
            filed April 27, 1990, found that Merlin M. Peterson was the 
 
            employer of claimant and not Tweedy Excavating and Trucking 
 
            or some other entity.  In looking at the decision and other 
 
            applicable evidence and taking official notice, the 
 
            undersigned can see how said deputy arrived at her decision 
 
            and would agree with it.  The claimant takes the position 
 
            that the decision is not of any importance or a determining 
 
            factor as this case was appealed and after appeal there was 
 
            a special case settlement.  The undersigned is not 
 
            disagreeing with the claimant's position on this point.
 
            
 
                 Neither the arbitration case heard February 6, 1990 nor 
 
            the case at bar involved an issue of permanent partial 
 
            disability.  The same issue regarding the amounts involved 
 
            is identical except that in the arbitration decision 
 
            defendant Merlin Peterson was ordered to pay medical costs 
 
            of $7,658.24 and the parties in the case at bar contend the 
 
            medical involved $7,728.32, a difference of $70.08.  Other 
 
            than that, the only other same request for compensation was 
 
            for temporary total disability from November 23, 1988 
 
            through January 17, 1989, a total of eight weeks.
 
            
 
                 In the application for approval of a compromised 
 
            special case settlement, pursuant to Iowa Code section 
 
            85.35, filed on June 10, 1991 and approved by this agency on 
 
            July 23, 1991, claimant received $11,038.73.  The maximum 
 
            total amount in either the February 6, 1990 or the case at 
 
            bar is no more than $9,494.88.  It is true in this special 
 
            case settlement claimant ended without any future rights of 
 
            permanency or medical benefits but that never seemed to have 
 
            been an issue in any other proceedings prior to this special 
 
            case settlement.  Because of the statute of limitations 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            problem in the case at bar, claimant would surely have asked 
 
            for permanency if permanency did exist.  Claimant basically 
 
            wants another $9,494.88 on top of his $11,038.73.  The 
 
            claimant basically is trying to collect twice as far as the 
 
            undersigned is concerned.
 
            
 
                 Taking into consideration all other evidence, the 
 
            undersigned finds that claimant did not receive an injury 
 
            that arose out of and in the course of his employment as an 
 
            employee of Tweedy Excavating and Trucking, Inc., but that 
 
            claimant was, in fact, employed by another employer.  The 
 
            undersigned finds that claimant takes nothing from these 
 
            proceedings.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 22, 
 
            1988, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            22, 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 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 An original proceeding for benefits must be commenced 
 
            within two years from the date of the occurrence of the 
 
            injury for which benefits are claimed or within three years 
 
            from the date of the last payment of weekly compensation 
 
            benefits if weekly compensation benefits have been paid 
 
            under section 86.13.  Section 85.26(1).  A proceeding in 
 
            review-reopening must be commenced within three years from 
 
            the date of the last payment of weekly benefits under either 
 
            an award for payments or an agreement for settlement.
 
            
 
                 Section 85.61(11) provides in part:
 
            
 
                 "Worker" or "employee" means a person who has 
 
                 entered into employment of, or works under 
 
                 contract of service, express or implied, or 
 
                 apprenticeship, for an employer. . . .
 
            
 
                 It is claimant's duty to prove, by a preponderance of 
 
            the evidence, that claimant was an employee within the 
 
            meaning of the law.  Where claimant establishes a prima 
 
            facie case, defendants then have the burden of going forward 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            with the evidence which rebuts claimant's case.  The 
 
            employer must establish, by a preponderance of the evidence, 
 
            any pleaded affirmative defense or bar to compensation.  
 
            Nelson v. Cities Serv. Oil Co., 259 Iowa 1209, 146 N.W.2d 
 
            261 (1967).
 
            
 
                 Factors to be considered in determining whether an 
 
            employer-employee relationship exists are:  (1) the right of 
 
            selection, or to employ at will, (2) responsibility for 
 
            payment of wages by the employer, (3) the right to discharge 
 
            or terminate the relationship, (4) the right to control the 
 
            work, and (5) identity of the employer as the authority in 
 
            charge of the work or for whose benefit it is performed.  
 
            The overriding issue is the intention of the parties.  Where 
 
            both parties by agreement state they intend to form an 
 
            independent contractor relationship, their stated intent is 
 
            ignored if the agreement exists to avoid the workers' 
 
            compensation laws, however.  Likewise, the test of control 
 
            is not the actual exercise of the power of control over the 
 
            details and methods to be followed in the performance of the 
 
            work, but the right to exercise such control.  Also, the 
 
            general belief or custom of the community that a particular 
 
            kind of work is performed by employees can be considered in 
 
            determining whether an employer-employee relationship 
 
            exists.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 
 
            (Iowa 1981); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
            1971); Nelson v. Cities Serv. Oil Co., 259 Iowa 1209, 146 
 
            N.W.2d 261 (1966); Lembke v. Fritz, 223 Iowa 261, 272 N.W. 
 
            300 (1937); Funk v. Bekins Van Lines Co., I Iowa Industrial 
 
            Commissioner Report 82 (App. 1980).
 
            
 
            Glidden v. German, 360 N.W.2d 716 (Iowa 1984) - Pro Tanto 
 
            rule.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant was not an employee of Tweedy Excavating and 
 
            Trucking, Inc.
 
            
 
                 Claimant did not incur an injury that arose out of and 
 
            in the course of his employment as he did not have 
 
            employment with defendant Tweedy Excavating and Trucking, 
 
            Inc.
 
            
 
                 Claimant did not file his petition timely under the 
 
            provisions of Iowa Code section 85.26 and that said petition 
 
            was filed more than two years after his injury.
 
            
 
                 Claimant did not receive workers' compensation benefits 
 
            by law from Tweedy Excavating and Trucking, Inc., as that 
 
            corporation had its corporate charter cancelled by a 
 
            certificate of cancellation dated November 25, 1987.
 
            
 
                 An individual, even if they were formerly connected 
 
            with the corporation, cannot cause a corporation to be 
 
            resurrected or to have the ability to operate as a 
 
            corporation by individual acts.
 
            
 
                 Linda Tweedy, individually, or Linda Tweedy, doing 
 
            business as Tweedy Excavating and Trucking, Inc., was not 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            able by her actions to withdraw the Iowa Secretary of 
 
            State's certificate of cancellation of a corporate charter 
 
            but through her actions can make herself personally liable 
 
            for improperly operating contrary to laws of the state.
 
            
 
                 Linda Tweedy and Linda Tweedy doing business as Tweedy 
 
            Excavating and Trucking, Inc., was discharged in bankruptcy 
 
            on May 9, 1990, which discharged her of any debt that may be 
 
            owing to Brett Howard including any debt that might have at 
 
            the time been nondischargeable if claimant had taken action 
 
            in the bankruptcy case regarding debts that may be 
 
            nondischargeable pursuant to certain sections of the 
 
            bankruptcy code.
 
            
 
                 Claimant cannot avoid the provisions of 85.26 (statute 
 
            of limitations) by timely filing a petition against an 
 
            improper defendant and then later untimely filing an 
 
            amendment naming a new corporation and serving an individual 
 
            who is not an authorized corporate official pursuant to the 
 
            Secretary of State's corporate charter cancellation.  
 
            Claimant cannot use the timely filed petition against 
 
            another as the foundation to amend and timely incorporate 
 
            another defendant notwithstanding the fact that the 
 
            corporation they are attempting to now file against is a 
 
            nonexistent entity.
 
            
 
                 Claimant takes nothing from this proceeding.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That claimant pays the cost of this action.
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Dennis L Hanssen
 
            Attorney at Law
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Mr James L Spellman
 
            Attorney at Law
 
            1300 Locust St
 
            Des Moines IA 50309
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRETT A. HOWARD,
 
         
 
              Claimant,
 
         VS.
 
                                         File No. 892798 
 
         MERLIN PETERSON,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N 
 
         and
 
         
 
         MARYLAND CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Brett A. Howard, against his alleged employers, Tweedy Excavating 
 
         and Trucking, Inc., and Merlin Peterson, to recover benefits 
 
         under the Iowa Workers' Compensation Act as the result of an 
 
         injury allegedly sustained on November 22, 1988.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner at Des Moines, Iowa on February 6, 1990.  A first 
 
         report of injury was filed on February 13, 1989.  No benefits 
 
         have been paid claimant.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant as well as of Merlin Peterson and of joint exhibits 1 
 
         through 10 and defendants, exhibits A and B.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and the oral stipulations 
 
         of claimant and defendant Merlin Peterson at hearing, claimant 
 
         and defendant Peterson stipulated to the following:
 
         
 
              1. Claimant's medical bills were,.fair and reasonable and 
 
         that the treatment was reasonable and necessary;
 
         
 
              2. Claimant's temporary total disability entitlement, if 
 
         liability is found, is from November 23, 1988 through January 17, 
 
         1989;
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3. No permanent partial disability is claimed; and,
 
         
 
              4. Claimant's rate of weekly compensation is $345.82.
 
         
 
              Defendant Tweedy Excavating and Trucking did not join in the 
 
         prehearing report.  Defendant Tweedy Excavating and Trucking did 
 
         not contest the stipulations of claimant and defendant Merlin 
 
         Peterson, but for indicating that defendant Tweedy did not accept 
 
         the stipulated rate.  On February 6, 1990, Linda L. Tweedy, d/b/a 
 
         Tweedy Excavating and Trucking, Inc., filed bankruptcy.  On March 
 
         5, 1990, claimant dismissed without prejudice his claim against 
 
         Tweedy Excavating.
 
         
 
              Issues remaining to be decided are:
 
         
 
              1. Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              2. Whether a causal relationship exists between the alleged 
 
         injury and the claimed disability;
 
         
 
              3. Whether claimant is entitled to the stipulated period of 
 
         temporary total disability as a result of the alleged injury;
 
         
 
              4. Whether claimant is entitled to payment of certain 
 
         medical costs pursuant to section 85.27;
 
         
 
              5. Whether an employer-employee relationship exists between 
 
         claimant and defendant Peterson; and,
 
         
 
              6. Whether claimant is entitled to a penalty for 
 
         unreasonable delay or denial of benefits pursuant to Iowa Code 
 
         section 86.13, unnumbered paragraph 4.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is a high school graduate who attended 
 
         approximately one year of college.  Prior to November 22, 1988, 
 
         claimant had had right knee surgery; left ankle surgery; left 
 
         broken toes; and, bursitis from a blow to the right knee.  
 
         Claimant testified that he began work with Tweedy Excavating in 
 
         June, 1988 driving a 1988 Mack automatic with attached trailer.  
 
         The truck claimant drove was registered in Merlin Peterson's 
 
         name, housed, maintained and fueled at Peterson's place of 
 
         business for both A-1 Ready Mix and Peterson Construction, that 
 
         is, 4000 Delaware, Des Moines, Iowa.  Claimant thought Peterson 
 
         also owned the trailer attached to the truck.  Claimant testified 
 
         that 90 percent of the hauling he did with the 1988 Mack 
 
         automatic was either hauling gravel and sand into Peterson's 
 
         plant or
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON 
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         hauling other items from the plant.  The 1988 Mack automatic was 
 
         disabled in summer, 1988.  Housby Mack issued a loaner truck for 
 
         the period of disablement.  The loaner truck permit was issued to 
 
         Merlin Peterson.
 
         
 
              Claimant testified that he checked with Lester Craig, 
 
         variously described as the Peterson dispatcher or plant manager, 
 
         each day as to whether and for what purpose his truck would be 
 
         needed at the Peterson plant the following day.  Claimant agreed 
 
         that Mr. Craig did not otherwise supervise claimant's work.  
 
         Claimant later stated that Linda Tweedy could give instructions, 
 
         but that she was not at the Peterson premises each day to know 
 
         what was needed.  Claimant, in his deposition, reported that in a 
 
         way he was just trying to help out (when he asked Lester Craig) 
 
         in that he was trying to find out whether the Peterson plant 
 
         would need the trucks.
 
         
 
              Claimant turned in tickets for loads hauled each day to the 
 
         Peterson plant.   Claimant did not turn in a time slip to the 
 
         Peterson plant.   Claimant was paid on a commission basis of 25 
 
         percent of the load returned.  Linda Tweedy issued claimant 
 
         checks from the Tweedy Excavating account.  Claimant testified 
 
         that at times Tweedy Excavating account checks bounced and that 
 
         if he could not reach Linda Tweedy, he went to Merlin Peterson 
 
         who made good on the checks.  Claimant received no actual 
 
         paychecks on Peterson Company forms.  Merlin Peterson stated that 
 
         Linda Tweedy later reimbursed Merlin Peterson for checks on which 
 
         Peterson had made good.
 
         
 
              Claimant testified that a written [apparently wage labor] 
 
         contract had been drawn up between claimant and Linda Tweedy, but 
 
         the contract was misplaced and never executed.  Claimant had no 
 
         written contract with Merlin Peterson.
 
         
 
              Claimant testified that on November 22, 1988 he arrived at 
 
         work at about 6:00 a.m., did a standard pre-work maintenance 
 
         check on the truck, and then climbed into the truck cab to start 
 
         and warm the truck.  Claimant then attempted to climb out of the 
 
         truck to wait in his car until the truck was warm.  The truck had 
 
         a high step.  Claimant testified he felt pain in his left foot as 
 
         soon as he stepped to the ground.  He had not hit or struck 
 
         anything.  As the day progressed, claimant's leg became 
 
         increasingly cold and numb.  Claimant notified the Peterson tower 
 
         of his leg incident on the morning of November 22, 1988.  He did 
 
         not otherwise notify Peterson or Peterson supervisors that he had 
 
         been injured.  Claimant called Linda Tweedy in the afternoon of 
 
         November 22, 1988 and asked where he should go for medical 
 
         treatment of a workers, compensation injury.
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 4
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         Tweedy advised claimant that she had no workers, compensation.
 
         
 
              Claimant went to the Mercy Hospital Emergency Room where 
 
         Kirk Green, D.O., an orthopaedic surgeon, diagnosed posterior 
 
         compartment syndrome, left calf, and performed an immediate 
 
         posterior compartment fasciotomy.  A second surgical procedure 
 
         was later performed to close the wound.  Dr. Green subsequently 
 
         referred claimant to Pamela A. Duffy & Associates for physical 
 
         rehabilitation.  Claimant testified that exhibit 9, including 
 
         costs with Pam Duffy, represented bills related to his injury.  
 
         Defendants offered no contrary evidence.  Claimant has paid the 
 
         Harder Pharmacy bill.
 
         
 
              In his deposition, claimant stated he assumed Linda Tweedy 
 
         had workers' compensation coverage for him and stated that in an 
 
         accident he would first call Linda Tweedy and then call Merlin 
 
         Peterson since he was driving Peterson's equipment.
 
         
 
              In his deposition, claimant reported that doctors had stated 
 
         his muscle was probably cold and tight and that it was just so 
 
         tight that when he stepped down, it snapped.
 
         
 
              Merlin (Pete) Peterson testified that he is owner of A-1 
 
         Ready Mix, and Peterson Construction, and part-owner of Ready Mix 
 
         West.  Peterson reported that prior to June, 1988, Tweedy 
 
         Excavating and Trucking had hauled loads for his businesses in 
 
         Tweedy trucks.  In 1988, financiers repossessed Tweedy Excavating 
 
         and Trucking's equipment.  Peterson testified Linda Tweedy then 
 
         sought his help.  In June, 1988, Merlin Peterson as lessor and 
 
         Tweedy Excavating and Trucking as lessee entered into a written 
 
         motor truck lease agreement.  Under the agreement, Peterson 
 
         leased two trucks to Tweedy Excavating and Trucking.  Peterson 
 
         licensed, taxed, serviced and maintained the vehicles.  Peterson 
 
         required that they be kept at his place of business.  Peterson 
 
         testified he required these trucks and other equipment on which 
 
         he was the lessor to be kept at his plant if the lessee had no 
 
         other safe place at which to keep the equipment.  Linda Tweedy 
 
         lives in Urbandale.  The Tweedy Excavating and Trucking, Inc., 
 
         address is 5132 Northwest Beaver, Johnston, Iowa., Tweedy 
 
         Excavating and Trucking purchased fuel for the trucks from 
 
         Peterson.  Peterson testified that fuel purchases through his 
 
         business were necessary as Tweedy lacked credit to purchase fuel 
 
         elsewhere.  He reported that fuel purchases were invoiced and 
 
         billed to Tweedy.  Tweedy sent billing statements for hauling.  
 
         Peterson paid for hauling with checks issued through M. Peterson 
 
         Construction Company.  The lease agreement between Tweedy 
 
         Excavating and Trucking and Merlin
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 5
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Peterson remains in effect.  The trucks remain at Peterson's 
 
         place of business.
 
         
 
              Peterson testified that in lease agreement discussions with 
 
         Linda Tweedy, whether her business had workers, compensation 
 
         insurance coverage was not discussed.  Peterson stated that he 
 
         assumed Tweedy had workers' compensation insurance as such is a 
 
         minor business expense.  Peterson stated he was unaware of who 
 
         had DOT permits on the two leased trucks or if DOT permits had 
 
         been issued on the trucks.  He denied knowing that Tweedy could 
 
         not get Interstate Commerce Commission permits on the trucks as 
 
         the truck insurance was in Peterson's name and the Interstate 
 
         Commerce Commission required that the permit and the insurance 
 
         both be under the same name.
 
         
 
              Peterson denied that he received a benefit to his business 
 
         in that Tweedy Excavating and Trucking qualified as a minority 
 
         contractor.  He stated that his benefit under the lease agreement 
 
         was that he was "just a good guy." Peterson agreed that no other 
 
         minority contractor has trucks serviced at his place of business, 
 
         but stated that W-T Asphalt, a minority contractor, has trucks 
 
         maintained at his place of business.
 
         
 
              Peterson denied that claimant was ever on his payroll or 
 
         that state or federal taxes were withheld on claimant as an 
 
         employee.
 
         
 
              Linda Tweedy testified by way of her deposition taken May 
 
         30, 1989.  Tweedy was divorced in February, 1985.  She is the 
 
         sole corporate officer in Tweedy Excavating and Trucking, a 
 
         business she had previously operated with her spouse.  Prior to 
 
         1988, Tweedy did Tweedy Excavating and Trucking's bookkeeping, 
 
         customer liaison work, work scheduling and ran parts for the 
 
         company.  Tweedy Excavating and Trucking's had done hauling for 
 
         Merlin Peterson's businesses prior to 1988.  Linda Tweedy 
 
         testified that some of the work for Peterson "may have been" 
 
         federal highway projects, but it was mostly city work.  Tweedy 
 
         testified that 75 percent of the company's 1988 work related to 
 
         its minority contractor status and that 50 percent of its work 
 
         with Peterson's businesses related to the company's minority 
 
         contractor status.  Tweedy reported that her company has had 
 
         workers' compensation insurance in the past and that she is 
 
         familiar with workers' compensation insurance.  She reported that 
 
         she had discussed her lack of workers' compensation insurance 
 
         with her insurance agent, but she assumed that workers' 
 
         compensation insurance was not required for fewer than three 
 
         employees and, therefore, she had not purchased it.
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 6
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Tweedy estimated that 50 percent of Tweedy Excavating and 
 
         Trucking's work is for Merlin Peterson's businesses.  She 
 
         characterized claimant's estimate of 90 percent of his truck's 
 
         work being for Tweedy Excavating and Trucking as inaccurate.  She 
 
         testified that Tweedy Excavating and Trucking brokers out quite a 
 
         bit of work in non-Tweedy trucks.   She stated claimant works 
 
         primarily for Peterson since claimant drives the "pup" and 
 
         therefore is able to get in and dump at that site and generate 
 
         more income.  She still stated that claimant's estimate of 90 
 
         percent "might still be a little high for that truck."  She 
 
         denied that priority was given to work for Peterson's businesses 
 
         as regards claimant's truck, but stated that the Tweedy company 
 
         tried to service Peterson's business.
 
         
 
              Tweedy reported that Tweedy Excavating and Trucking paid for 
 
         fuel and truck repairs on the leased trucks and that contrary to 
 
         the lease agreement, Tweedy Excavating and Trucking ultimately 
 
         paid licenses and taxes on the trucks.  She agreed that Peterson 
 
         purchased liability insurance on the trucks.  Tweedy testified 
 
         that she has had Tweedy trucks parked in a number of places and 
 
         that she has had problems with vandals.  Tweedy testified that, 
 
         per her requirement, Merlin Peterson employees verified the hours 
 
         during which Tweedy Excavating and Trucking truckers were at the 
 
         work site.  Tweedy testified that as between herself and Merlin 
 
         Peterson, she supervised claimant's work.  Tweedy stated she was 
 
         at the Peterson work site five out of five days and that she 
 
         always had final say on what her employees did.  She "resented" 
 
         anyone saying anyone else did her job.
 
         
 
              In a medical report of January 18, 1989, Dr. Green opined 
 
         that claimant's posterior compartment syndrome on November 22, 
 
         1988 was consistent with the history given of a work-related 
 
         injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether an employer-employee 
 
         relationship existed between the claimant and defendant Merlin 
 
         Peterson.
 
         
 
              Iowa Code section 85.61(l) provides in part:
 
         
 
              2. "Worker" or "employee" means a person who.has entered 
 
              into employment of, or works under contract of service, 
 
              express or implied, or apprenticeship, for an employer. . . 
 
              .
 
         
 
              The Iowa Supreme Court stated in Nelson v. Cities Service 
 
         Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1967):
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 7
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                 This court has consistently held it is a claimant's duty 
 
              to prove by a preponderance of the evidence he or his 
 
              decedent was a workman or employee within the meaning of the 
 
              law. . . .
 
              
 
              And, if a compensation claimant establishes a prima facie 
 
              case the burden is then upon defendant to go forward with 
 
              the evidence and overcome or rebut the case made by 
 
              claimant.  He must also establish by a preponderance of the 
 
              evidence any pleaded affirmative defense or bar to 
 
              compensation. [Citations omitted.]
 
         
 
              Given the above, the court set forth its latest standard for 
 
         determining an employer-employee relationship in Caterpillar 
 
         Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981).  The court 
 
         stated in part:
 
         
 
              I. The employer-employee relationship.  As defined in 
 
              section 85.61(2), The Code, an "employee" is a "person who 
 
              has entered into the employment of, or works under contract 
 
              of service . . . for an employer."  Factors to be considered 
 
              in determining whether this relationship exists are: (1) the 
 
              right of selection, or to employ at will, (2) responsibility 
 
              for payment of wages by the employer, (3) the right to 
 
              discharge or terminate the relationship, (4) the right to 
 
              control the work, and (5) identity of the employer as the 
 
              authority in charge of the work or for whose benefit it is 
 
              performed.  The overriding issue is the intention of the 
 
              parties.  McClure v. Union, et al., Counties, 188 N.W.2d 285 
 
              (Iowa 1971). [Emphasis added.]
 
         
 
              The test of control is not the actual exercise of the power 
 
         of control over the details and methods to be followed in the 
 
         performance of the work, but the right to exercise such control.  
 
         Lembke v. Fritz, 223 Iowa 261, 266, 272 N.W. 300, 303 (1937).
 
         
 
              In cases of doubt, the workers, compensation statute is to 
 
         be liberally construed to extend its beneficent purpose to every 
 
         employee who can fairly be brought within it.  Usgaard v. Silver 
 
         Crest Golf Club, 256 Iowa 453, 459, 129 N.W.2d 636, 639 (1964).
 
         
 
              Linda Tweedy, who has done business as Tweedy Excavating and 
 
         Trucking, Inc., and Merlin Peterson both testified that claimant 
 
         was an employee of Ms. Tweedy doing business as Tweedy Excavating 
 
         and Trucking, Inc.  Claimant apparently believed he was an 
 
         employee of Tweedy Excavating
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON 
 
         Page 8
 
         
 
         
 
         and Trucking, Inc.  While the express beliefs of the parties are 
 
         of some importance in determining the actual intentions of the 
 
         parties, they are not controlling.  The actual intention of the 
 
         parties must be gleaned from the overall circumstances.  Those 
 
         overall circumstances can be determined only by examining the 
 
         factors relevant to whether the employer-employee relationship 
 
         existed.  When those factors are thoroughly examined, it appears 
 
         clear that despite the overt arrangement between claimant and Ms. 
 
         Tweedy, Merlin.Peterson was claimant's actual employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Initially, we find claimant's factual statement of his 
 
         relationship with both Tweedy and Peterson more credible than the 
 
         factual statements of either Ms. Tweedy or Mr. Peterson.  As 
 
         noted, the overriding issue is the intention of the parties.  To 
 
         achieve an understanding of the intention of the parties in this 
 
         case, it is necessary to look at the purposes underlying the 
 
         lease agreement and the benefit of that agreement to the parties.
 
         
 
              Mr. Peterson testified that his reason for entering the 
 
         lease agreement was that he was "just a good guy." That statement 
 
         does not comport with our understanding of the business world.  
 
         Few, if any, business arrangements are entered for such a reason.  
 
         Mr. Peterson owns several businesses.  We do not believe that 
 
         those businesses would have thrived had he commonly entered 
 
         contractual arrangements in which his only benefit was to be "a 
 
         good guy."  We believe then that the purpose underlying the lease 
 
         agreement was that the trucks be available to perform work for 
 
         Peterson's benefit.  Indeed, claimant testified 90 percent of his 
 
         work load consisted of hauling for Peterson.  It would logically 
 
         follow then that workers who drove the trucks would also be 
 
         performing their services for Mr. Peterson's benefit.  Other 
 
         factors also support that conclusion.  While Ms. Tweedy testified 
 
         that she supervised the lease truck drivers, it appeared that 
 
         direct supervision was more often through the plant manager or 
 
         dispatcher at the Peterson work site.  Ms. Tweedy's supervision, 
 
         if at all, appears to have been that as merely a conduit giving 
 
         the workers directions she herself had received through Peterson 
 
         or his operators.  Indeed, work could not be performed unless 
 
         Peterson or his manager or dispatcher permitted such to be done.  
 
         Hence, Mr. Peterson or his plant manager or dispatcher could 
 
         properly be identified as the authority in charge of the work and 
 
         as the authority having the right to control the work.
 
         
 
              Likewise, while Tweedy reserved the formal right to issue 
 
         wage payments to claimant, Peterson apparently reasonably was 
 
         perceived as an individual responsible for payment of wages to 
 
         claimant.  Claimant testified and
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 9
 
         
 
         
 
         Peterson corroborated that when Tweedy's checks to claimant 
 
         bounced, Peterson made good on those checks.  Peterson testified 
 
         that he did so only when claimant needed money immediately and 
 
         that Tweedy subsequently reimbursed him for the made good checks.  
 
         Even if such is accepted as true, it does not appear reasonable 
 
         that a contractor would assume responsibility for paying the 
 
         wages of a nominal employee of a subcontractor unless the actual 
 
         benefit from the services performed flowed primarily to the 
 
         contractor or unless the subcontractor arrangement was a mere 
 
         subterfuge to avoid detrimental consequences to the contractor or 
 
         to achieve a significant benefit to the contractor by way of 
 
         nominally receiving benefits from the specified subcontractor.  
 
         In the instant case, Peterson received the benefit of having work 
 
         performed in his operation by a designated minority 
 
         subcontractor, Tweedy, and also avoided the detriment of 
 
         requiring workers, compensation insurance for those workers in 
 
         Tweedy's employ.  Under those circumstances and given Peterson's 
 
         own act of assuming responsibility for payment of wages to 
 
         claimant on occasion, it can be said that Peterson could 
 
         correctly be identified as the party responsible for payment of 
 
         wages.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the instant case, also, the right of selection or to 
 
         employ at will and the right to discharge or terminate the 
 
         relationship are less clear relative to Peterson.  The totality 
 
         of circumstances support an inference that in  a dispute between 
 
         Tweedy and Peterson as to selection or discharge of an employee 
 
         that Peterson would have the deciding vote, however.  Peterson 
 
         was the legal owner of the trucks.  Peterson maintained insurance 
 
         coverage on the trucks; Peterson required the trucks to be kept 
 
         maintained and serviced at his facility.  Peterson derived no 
 
         benefit from the lease agreement but for Tweedy's work for his 
 
         operation.  Claimant performed approximately 90 percent of his 
 
         work in the nominally Tweedy leased truck for Peterson's 
 
         operation.  Given the above, it can properly be said that 
 
         claimant had entered into the employment of Peterson.  Hence, an 
 
         employer-employee relationship is found as between claimant and 
 
         defendant Merlin Peterson.
 
         
 
              Our next concern is whether claimant received an injury 
 
         which arose out of and in the course of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 22, 1988 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 10
 
         
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol Sch. Dist., 246 Iowa 402, 
 
         68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa 
 
         Report.  See also Sister Mary Benedict v. St. Mary's Corp., 255 
 
         Iowa 847, 124 N.W.2d 548 (1963) 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. Sch. 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. 
 
         Sch. 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 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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              Injuries arising out of risks or conditions personal to the 
 
         claimant do not arise out of the employment unless the employment 
 
         contributes to the risk or aggravates the injury.  When the 
 
         employee has a preexisting physical weakness or disease, this 
 
         employment,contribution may be found either in placing the 
 
         employee in a position which aggravates the effects of a fall due 
 
         to the idiopathic condition, or in precipitating the effects of 
 
         the condition by strain or trauma.  Larson Workmen's Compensation 
 
         Law, section 12.00.
 
         
 
              The facts of claimant's work incident are not disputed.  On 
 
         November 22, 1988, claimant arrived at work at approximately 6:00 
 
         a.m., climbed into his truck cab and started the truck to warm 
 
         it.  He then attempted to climb from the truck into his car to 
 
         keep himself warm until the truck was warm.  The truck had a high 
 
         stop.  Claimant's leg muscle was probably cold and tight.  As 
 
         claimant stepped from the truck, the muscle snapped.  Claimant 
 
         sustained a posterior compartment syndrome, left calf, with 
 
         subsequent posterior compartment fasciotomy.  Defendants argue 
 
         that claimant's left calf posterior compartment syndrome was an
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON 
 
         Page 11
 
         
 
         
 
         idiopathic condition in which claimant's employment played no 
 
         part but to provide the situs for its development.  We disagree.  
 
         Claimant's posterior compartment syndrome apparently developed on 
 
         account of a combination of a cold and tight muscle and the need 
 
         to step a high step at which time the muscle snapped.  Claimant's 
 
         work required him to be in a cold and not a warm environment at 
 
         6:00 a.m. on November 22, 1988.  Claimant's work also required 
 
         him to step from a high step.  Both such were a strain for the 
 
         cold, tight muscle which strain precipitated the effects of the 
 
         cold, tight muscle, those effects being the snapping and 
 
         consequent development of posterior compartment syndrome, left 
 
         calf.  Hence, claimant has shown an injury which arose out of and 
 
         in the course of his employment and not merely an idiopathic 
 
         condition.
 
         
 
              We consider the causation question.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 22, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v.
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 12
 
         
 
         
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962).
 
         
 
              In a January 18, 1989 medical report, Dr. Green, who 
 
         performed claimant's posterior compartment fasciotomy, opined 
 
         that claimant's posterior compartment syndrome was consistent 
 
         with the history given of a work-related injury.  Dr. Green's 
 
         opinion is not disputed and the opinion is sufficient to 
 
         establish the requisite causal connection.
 
         
 
              Likewise, section 85.33(l) provides for payment of temporary 
 
         total disability benefits as set forth in that section for injury 
 
         producing temporary total disability.  The parties have 
 
         stipulated that, if liability is found, claimant is entitled to 
 
         temporary total disability from November 23, 1988 through January 
 
         17, 1989.  As claimant has received an injury arising out of and 
 
         in the course of his employment and as a causal relationship 
 
         exists between the injury and the claimed temporary total 
 
         disability, claimant is entitled to temporary total disability 
 
         benefits from November 23, 1988 through January 17, 1989.  
 
         Pursuant to the parties' stipulation, no permanent partial 
 
         disability is claimed or found.
 
         
 
              Similarly, section 85.27 provides that the employer is 
 
         liable for medical costs related to a compensable injury.  
 
         Claimant testified that exhibit 9, including costs with Pam 
 
         Duffy, represented bills related to his injury.  Defendants have 
 
         offered no contrary evidence.  Claimant is entitled to payment of 
 
         all costs for medical services as evidenced by exhibit 9 and is 
 
         entitled for reimbursement for costs with Harder Pharmacy which 
 
         claimant himself has paid.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Mr. Peterson and Ms. Tweedy had entered a formal lease 
 
         agreement under which Peterson leased two Mack trucks to Ms. 
 
         Tweedy.
 
         
 
              Peterson was  the legal owner of the truck.
 
         
 
              Peterson maintained insurance coverage on the trucks.
 
         
 
              Peterson required the trucks to be kept, maintained and 
 
         serviced at his facility.
 
         
 
              Ninety percent of claimant's work load consisted of hauling 
 
         for Mr. Peterson's business.
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 13
 
         
 
         
 
              Claimant at times received direction as to the work to be 
 
         performed from the plant manager/dispatcher at the Peterson work 
 
         site; at times claimant received direction from Ms. Tweedy.
 
         
 
              Claimant could not perform work at the Peterson work site 
 
         unless Mr. Peterson or an agent of Mr. Peterson permitted work to 
 
         be done.
 
         
 
              Ms. Tweedy served as a conduit for Peterson or his agent in 
 
         directing claimant to work at the Peterson work site.
 
         
 
              Mr. Peterson received no overt business benefit from the 
 
         lease agreement.
 
         
 
              Mr. Peterson owns several businesses.
 
         
 
              Business persons do not generally enter contractual 
 
         arrangements under which they receive no overt benefit.
 
         
 
              Ms. Tweedy qualified as a minority contractor.
 
         
 
              At least 50 percent of the Tweedy Excavating and Trucking, 
 
         Inc., work at the Peterson work site related to Tweedy 
 
         Excavating's minority contractor status.
 
         
 
              Mr. Peterson received a benefit from the lease agreement in 
 
         that he could report work contracted for his business with a 
 
         minority contractor.
 
         
 
              The lease agreement and the Tweedy subcontract with Peterson 
 
         was a subterfuge undertaken to achieve the benefit to Peterson of 
 
         having work performed in his business. by a minority 
 
         subcontractor.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Peterson was the authority in charge of the work and the 
 
         authority having the right to control the work.
 
         
 
              Ms. Tweedy's corporation issued wage payments to claimant in 
 
         the normal course.
 
         
 
              The Tweedy wage payment checks bounced on occasion.
 
         
 
              Peterson "made good" on the bounced checks.
 
         
 
              Peterson was responsible for payment of wages to claimant.
 
         
 
              Peterson had the ultimate right to select employees to drive 
 
         the leased trucks and the ultimate right to discharge those 
 
         employees.
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 14
 
         
 
         
 
              Claimant arrived at work at 6:00 a.m. on November 22, 1988.
 
         
 
              The truck was not warm.
 
         
 
              Claimant climbed into his truck cab and started the truck to 
 
         warm it.
 
         
 
              The truck had a high step.
 
         
 
              Claimant attempted to return to his car and wait there until 
 
         the truck was warm.
 
         
 
              Claimant's leg muscle snapped as he stepped from the truck.
 
         
 
              Claimant sustained a posterior compartment syndrome, left 
 
         calf, with subsequent posterior compartment fasciotomy.
 
         
 
              Claimant's posterior compartment syndrome developed on 
 
         account of a combination of a cold tight muscle and the.need to 
 
         step a high step.
 
         
 
              Claimant's work required him to be in a cold environment and 
 
         to.step from a high step.
 
         
 
              Claimant's posterior compartment syndrome was not an 
 
         idiopathic condition.
 
         
 
              Dr. Green was claimant's treating orthopaedic surgeon.
 
         
 
              Dr. Green's causative testimony is not disputed.
 
         
 
              Claimant's posterior compartment syndrome results from 
 
         claimant's work injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was temporarily totally disabled on account of his 
 
         work injury from November 23, 1988 through January 17, 1989.
 
         
 
              Claimant had medical costs totalling $7,658.24 on account of 
 
         his work injury as further delineated in the order below.
 
         
 
              Claimant had medical mileage costs of $10.08 representing 
 
         $.21 per mile for 48 miles of travel related to medical treatment 
 
         of his work injury.
 
         
 
         
 
         
 
         HOWARD v. MERLIN,PETERSON
 
         Page 15
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that an employer-employee 
 
         relationship exists between claimant and defendant Merlin 
 
         Peterson.
 
         
 
              Claimant has established an injury which arose out of and in 
 
         the course of claimant's employment on November 22, 1988.
 
         
 
              Claimant has established a causal relationship between his 
 
         November 22, 1988 injury and claimed temporary total disability.
 
         
 
              Claimant is entitled to temporary total disability 
 
         benefits.from November 23, 1988 through January 17, 1989.
 
         
 
              Claimant has established entitlement to payment of medical 
 
         costs evidenced in exhibit 9 and enumerated in the order below.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant temporary total disability benefits 
 
         at the rate of three hundred forty-five and 82/100 dollars 
 
         ($345.82) per week from November 23, 1988 through .January 17, 
 
         1989.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 85.30, 
 
         as amended.
 
         
 
              Defendants pay the following medical costs:
 
         
 
               Orthopaedic Associates, P.C.                $1,105.00
 
               Medical Center Anesthesiologists               512.00
 

 
         
 
 
 
 
 
 
 
 
 
 
 
               Harder Pharmacy                            40.77
 
               Mercy Hospital                          6,060.47
 
               Total                                  $7,658.24
 
          
 
              Defendants pay claimant mileage         expenses totalling 
 
         forty-eight (48) miles at twenty-one cents ($.21.) per mile for a 
 
         total of ten and 08/100 dollars ($10.08).
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
         
 
         HOWARD v. MERLIN PETERSON
 
         Page 16
 
         
 
         
 
              Defendants file a final report when this award is paid 
 
         pursuant to Division of Industrial Service Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of April, 1990.
 
         
 
         
 
         
 
         
 
                                         HELENJEAN WALLESER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Dick Jensen
 
         Attorney at Law
 
         1200 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa  50309
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1100; 1108; 2402
 
                                             1801; 2500
 
                                             Filed September 15, 1992
 
                                             Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BRETT A. HOWARD,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 892798
 
            TWEEDY EXCAVATING AND         :
 
            TRUCKING, INC.                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Defendant.               :       D E C I S I O N
 
                                          :
 
                                          :
 
                                          :
 
            ___________________________________________________________
 
            
 
            1100; 1108; 1801; 2500
 
            Claimant filed action against an individual, Linda Tweedy, 
 
            who was discharged in bankruptcy May 1990.  Claimant amended 
 
            his petition to substitute a corporation which Linda Tweedy 
 
            originally ran with her husband from whom she is divorced.  
 
            The corporation had its charger cancelled by the Secretary 
 
            of State in 1987.  The alleged injury was November 22, 1988.  
 
            Deputy Walleser in a prior decision April 27, 1990, found 
 
            that another corporation was in fact the employer of 
 
            claimant.
 
            Claimant's action was obviously intended to get at defendant 
 
            Linda Tweedy personally notwithstanding her discharge in 
 
            bankruptcy.  Claimant contended Linda Tweedy perjured 
 
            herself in a deposition in 1989 indicating the corporation 
 
            was in existence.  Claimant never raised point in bankruptcy 
 
            proceeding in 1990 involving "nondischargeability" of 
 
            defendants for fraud, etc.
 
            
 
            2402
 
            Deputy found claimant's amended petition of December 10, 
 
            1990, not timely filed as to Tweedy Excavating & Trucking, 
 
            Inc., the alleged corporation notwithstanding other problems 
 
            claimant had.  Claimant took nothing.
 
            No oral testimony presented.  A court reporter was waived.  
 
            Only evidence was exhibits.  Deputy cited Glidden v. German, 
 
            360 N.W.2d 716, Pro Tanto rule, which would have been 
 
            applicable if claimant recovered.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1106, 2001
 
                                         Filed April 27, 1990
 
                                         HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRETT A. HOWARD,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 892798
 
         MERLIN PETERSON,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         MARYLAND CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2001
 
         
 
              Claimant found to be an employee of the contractor where 
 
         contractor who owned the Mack truck which claimant drove had 
 
         entered a formal lease agreement with the subcontractor.  Under 
 
         the lease agreement, the contractor received no overt benefit, 
 
         but did receive a covert benefit in that the subcontractor 
 
         qualified for minority contractor status.
 
         
 
         1106
 
         
 
              Claimant's injury not found to be an idiopathic condition 
 
         where claimant who developed posterior compartment syndrome, left 
 
         calf did so where work required claimant to step from a high step 
 
         in a cold environment when his left calf muscle was cold and 
 
         tight.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTOPHER B. TAUBER,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 893081
 
            CITY OF FONDA,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            __
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            Christopher B. Tauber, claimant, against City of Fonda, 
 
            employer and Allied Group, insurance carrier, to recover 
 
            benefits under the Iowa Workers' Compensation Act as the 
 
            result of an injury sustained on August 2, 1988.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on February 6, 1992, in Storm Lake, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            testimony from claimant, Mike Stumpf and David R. Miller; 
 
            and joint exhibits 1 through 19.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            February 6, 1992, the parties have presented the following 
 
            issues for resolution:
 
            
 
                 .  Whether claimant sustained an injury on August 2, 
 
            1988, which arose out of and in the course of employment 
 
            with employer; and
 
            
 
                 .  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all of the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant is a 23-year-old Dana College student.  In the 
 
            summer of 1988 after finishing his first year of college at 
 
            Upper Iowa University, he was employed part-time by the city 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of Fonda Maintenance Department.  On August 2, 1988, he 
 
            arrived at work at 7:30 a.m. and reported to the maintenance 
 
            shed to receive his daily assignments.  His first assignment 
 
            was to clean the lavatory facilities in three city parks and 
 
            to mow the driveway at the city disposal site.  At 8:30 a.m. 
 
            he was assigned to painting the city pump house.  He painted 
 
            until 9 a.m. and took a 20-minute break.  He resumed 
 
            painting around 9:35 a.m. and continued until around 11 a.m.  
 
            At that time, he noted numbness and tingling in the fingers 
 
            of his left hand, arm and shoulder.  The whole left side of 
 
            his body became stiff.  He reported the incident to his 
 
            supervisor and he was examined by three city emergency 
 
            medical technicians (EMT).  His vital signs were taken and 
 
            he was found to have a weak pulse and abnormal respiration.  
 
            He was taken by ambulance to Buena Vista County Hospital 
 
            emergency room and was admitted to the hospital for tests 
 
            and evaluation.  
 
            
 
                 Claimant and two witnesses described the weather 
 
            conditions that day as sunny, hot and muggy.  Claimant was 
 
            assigned to paint the east side of the pump house which was 
 
            in full exposure to the morning sun.  
 
            
 
                 The medical evidence of record indicates that claimant 
 
            was admitted to the emergency room on August 2, 1988.  He 
 
            was attended by Timothy K. Daniels, M.D.  In order to 
 
            determine the etiology of claimant's symptoms, he was 
 
            admitted as an in-patient for observation, testing and 
 
            treatment.  An EEG and CAT scan was normal.  Within three 
 
            and one-half hours his symptoms had spontaneously resolved.  
 
            He was observed and no further episodes occurred.  He was 
 
            discharged on August 3, 1988, in good condition with normal 
 
            neurological testing (exhibits 5-10).
 
            
 
                 The discharge summary was prepared by Mark Schultz, 
 
            D.O., claimant's treating physician.  On September 13, 1988, 
 
            Dr. Schultz reported, "This patient had an episode of 
 
            paresthesia.  The cause of this was never determined.  This 
 
            occurred while doing manual labor and was assumed to be 
 
            related to his owrk activity at the time."  (ex. 3).  
 
            
 
                 At the request of defendants, Leonard E. Weber, M.D., 
 
            neurologist, reviewed the record in this case.  On July 10, 
 
            1989, he reported that claimant suffered a focal motor 
 
            seizure which, in his opinion was unrelated to claimant's 
 
            job activities (ex. 1).
 
            
 
                                conclusions of law
 
            
 
                 Defendants deny that claimant suffered an injury 
 
            arising out of and in the course of employment with employer 
 
            on August 2, 1988.  Therefore, they deny liability for all 
 
            medical expenses incurred by claimant pursuant to his 
 
            alleged injury.  They argue that there is no causal 
 
            connection between claimant's medical condition and his 
 
            employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 2, 
 
            1988, which arose out of and in the course of his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  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 the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 Defendants' argument is without merit.  Claimant was 
 
            asymptomatic prior to incident on August 2, 1988.  His 
 
            symptoms occurred while performing work for employer.  It is 
 
            evident that claimant had an episode of paresthesia while 
 
            performing manual labor on a hot, muggy, sunny day.  There 
 
            is no dispute that he worked under these conditions for at 
 
            least two hours.  Therefore, claimant has met his burden of 
 
            proof that he sustained an injury arising out of and in the 
 
            course of employment with employer.
 
            
 
                 Expert medical opinion rendered at the time that 
 
            claimant experienced his symptoms causally connect the 
 
            medical treatment he received with his work injury.  
 
            Claimant was taken to Buena Vista County Hospital for 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            observation and testing because highly qualified, trained 
 
            EMT's determined that claimant needed to be examined by 
 
            medical professionals.  Claimant was hospitalized overnight 
 
            for observation and appropriate tests were undertaken.  
 
            Although claimant's condition resolved within three and 
 
            one-half hours, and the etiology of his symptoms could not 
 
            definitely be diagnosed, the symptoms in fact arose while 
 
            working for employer and under less than favorable 
 
            conditions.  
 
            
 
                 The undersigned concludes that claimant's medical 
 
            treatment is causally connected to his work-related injury 
 
            and is compensable.  The disputed medical expenses are as 
 
            follows:
 
                                         
 
                           OUTSTANDING MEDICAL EXPENSES
 
            
 
            1.  Buena Vista County Hospital                   $  981.75
 
            2.  Family Health Center                             145.00
 
            3.  Dr. Rice, Radiologist                             80.00
 
            4.  Omaha Neurological Clinic                         45.00
 
            
 
                                          Total               $1,251.75
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay the following medical expenses:
 
            
 
            1.  Buena Vista County Hospital                   $  981.75
 
            2.  Family Health Center                             145.00
 
            3.  Dr. Rice, Radiologist                             80.00
 
            4.  Omaha Neurological Clinic                         45.00
 
            
 
                                          Total               $1,251.75
 
            
 
            
 
                 Defendants shall pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            required by this agency.
 
            
 
                 
 
            
 
                 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. John Duffy 
 
            Attorney at Law
 
            205 E 6th
 
            PO Box 1336
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51402.30; 52500
 
                                          Filed February 7, 1992
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTOPHER B. TAUBER,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 893081
 
            CITY OF FONDA,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            __
 
            
 
            51402.30
 
            Claimant proved by a preponderance of the evidence that he 
 
            sustained an injury on August 2, 1988, which arose out of 
 
            and in the course of employment with employer.  While 
 
            painting the pump house at the water tower on city property, 
 
            claimant experienced numbness in his left hand, arm and 
 
            side.  The temperature was in the high 90's and it was hot 
 
            and muggy.  Claimant was working outdoors in direct 
 
            sunlight.  He was taken to Buena Vista County Hospital by 
 
            medical technicians for observation and treatment.  Claimant 
 
            had never experienced these symptoms before this incident 
 
            nor anytime afterwards.  His treating physician determined 
 
            that he suffered an episode of paresthesia which occurred 
 
            while he was performing manual labor and assumed to be 
 
            related to his work activity.
 
            
 
            52500
 
            Defendants contend that claimant's injury did not arise out 
 
            of and in the course of his employment with employer, and 
 
            therefore, refused to pay claimant's medical bills.  A 
 
            determination was made that claimant's medical expenses were 
 
            causally related to his work-related injury and therefore, 
 
            compensable.  Defendants were ordered to pay $1,251.75 in 
 
            medical bills sustained by claimant for observation, 
 
            treatment and testing of his work-related injury.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOYCE ROMIG,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 893347
 
            vs.                           :
 
                                          :
 
            IMI CORNELIUS CO.,            :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN MUTUAL LIABILITY,    :
 
            INSURANCE COMPANY by IOWA     :
 
            INSURANCE GUARANTY            :
 
            ASSOCIATION,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            and certain mileage and medical expenses as a result of an 
 
            alleged injury occurring on July 24, 1987.  This case was 
 
            heard in Des Moines, Iowa, on July 16, 1990.  The record in 
 
            the proceeding consists of the testimony of claimant, 
 
            claimant's husband, Larry Romig, Teresa Catlett, and 
 
            Clifford Tesdahl; and Joint Exhibits 1 through 5.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged disability is causally 
 
            connected to her July 24, 1987 injury;
 
            
 
                 2.  The nature and extent of claimant's disability;
 
            
 
                 3.  Whether claimant's Lutheran Hospital bill in the 
 
            amount of $831.70 was authorized under the provisions of 
 
            Iowa Code section 85.27; and,
 
            
 
                 4.  Whether claimant is entitled to reimbursement for 
 
            mileage expenses, as represented by Exhibit 4 in the amount 
 
            of 2,715 miles.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                   FINDINGS OF FACTS
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence finds that:
 
            
 
                 Claimant was injured at work on July 24, 1987 when she 
 
            was carrying a compressor to install in a machine she was 
 
            assembling.  Claimant's foot caught the edge of a pallet 
 
            causing her to drop the compressor and fall against some 
 
            metal shelving, hitting her head on the shelving and her 
 
            right shoulder and hip on the pallet.  Claimant did not miss 
 
            any work initially and indicated her shoulder did not bother 
 
            her until she returned to work January 25, 1988 after an 
 
            extended company layoff in October 1987.  Claimant applied 
 
            for unemployment benefits and indicated to Job Service that 
 
            she was willing and able to work.  Claimant acknowledged she 
 
            would have continued working with defendant employer or 
 
            would have taken another manufacturing job during the 
 
            layoff, if offered, or if other work was available.  This 
 
            layoff was not unusual as claimant was used to this type of 
 
            layoff at this time of year and usually through the winter.
 
            
 
                 The undersigned is taking official notice of the 
 
            contents of the file, which clearly indicates this claimant 
 
            originally filed a petition alleging an injury on an 
 
            undetermined date in March 1988, and further indicating that 
 
            this injury occurred through the use of heavy vibrating 
 
            tools while employed with defendant employer resulting in a 
 
            shoulder injury, and names the Iowa Insurance Guaranty 
 
            Association as defendant insurance carrier.
 
            
 
                 On December 1, 1989, claimant was ordered by Deputy 
 
            David Rasey to be more specific as to the injury date.
 
            
 
                 The defendants answered that this action should be 
 
            dismissed and alleged in their answer that the defendant 
 
            insurance carrier at the time of the alleged injury in March 
 
            1988 was not American Mutual Liability Insurance Company, 
 
            for which the Iowa Insurance Guaranty Association assumes 
 
            responsibility, but was, in fact, another insurance carrier.  
 
            That answer further stated that the named defendant 
 
            guarantor was not involved regarding any insurance or 
 
            liability for the period after July 31, 1987.
 
            
 
                 Claimant filed another petition on November 22, 1989, 
 
            alleging a July 24, 1987 injury date, said injury allegedly 
 
            resulting from claimant using heavy vibrating tools while 
 
            employed with defendant employer.  Although it appeared that 
 
            the industrial commissioner's office took this as a new 
 
            injury petition, it was ultimately resolved through a letter 
 
            sent by claimant's attorney that this new original notice 
 
            and petition was, in fact, to be considered an amendment to 
 
            the original petition amending the injury date from March 
 
            1988 to July 24, 1987.  This date then, on its face, covered 
 
            a period of time in which defendant insurance carrier was 
 
            involved as to covering any liability that may exist.
 
            
 
                 There has been considerable testimony from claimant and 
 
            other witnesses on her behalf as to her medical problems and 
 
            things she can't do now that she could do prior to July 24, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            1987.  The claimant, herself, testified that she missed no 
 
            work from her July 24, 1987 injury and her testimony and the 
 
            medical testimony leaves no doubt in the undersigned's mind 
 
            that claimant was not having trouble with her shoulder, and 
 
            especially her right shoulder, until she returned from her 
 
            layoff on January 25, 1988, approximately three months 
 
            later, and, in fact, did not appear to seek medical help for 
 
            her right shoulder until March 4, 1988, at which time she 
 
            saw K. B. Washburn, M.D.  Other than possibly three days in 
 
            March 1988, the only time claimant lost time from work due 
 
            to her right shoulder problems was after her surgery in July 
 
            1988 by Dr. Scott B. Neff, D.O.  At that time in July 1988, 
 
            Dr. Neff also performed a right hand carpal tunnel surgery.  
 
            Claimant had first consulted Dr. Neff for a second opinion 
 
            concerning her right shoulder in June or July 1988.
 
            
 
                 It appears when claimant sought treatment with Dr. 
 
            Neff, and when he wrote his initial letters or reports, he 
 
            did not have a complete or correct history of claimant.  On 
 
            October 9, 1989, (Joint Exhibit 3-A), Dr. Neff wrote a 
 
            letter correcting or clarifying what he had previously 
 
            written.  It is obvious on page 2 of said report and 
 
            exhibit, that claimant had told Dr. Washburn in March 1988 
 
            that she had had a gradual onset of pain in her right 
 
            shoulder over the last couple of weeks.  Dr. Neff indicated 
 
            that this would be inconsistent with an injury which would 
 
            have occurred the previous July.
 
            
 
                 There is no medical evidence, particularly based on the 
 
            correct medical history of this claimant, that causally 
 
            connects claimant's condition and alleged disability to her 
 
            injury of July 24, 1987.  Dr. Neff was a claimant chosen 
 
            doctor.  Claimant then went to Jerome Bashara, M.D., on 
 
            March 31, 1989 for an evaluation which also lacks any causal 
 
            connection conclusion but also it is obvious Dr. Bashara did 
 
            not have the correct and full medical history of this 
 
            claimant.  In Dr. Bashara's deposition (Jt. Ex. 2, p. 23), 
 
            he agreed that he was not saying that claimant's July 24, 
 
            1987 injury caused her right shoulder problems that he 
 
            diagnosed and that his history also indicated claimant first 
 
            experienced problems with her right shoulder in February 
 
            1988.
 
            
 
                 It would also appear in Dr. Bashara's deposition that 
 
            any injury causing claimant's problem would seem to indicate 
 
            a repetitive type of injury accumulating over a period of 
 
            time.
 
            
 
                 Claimant has alleged a specific injury on July 24, 
 
            1987.  In March 1988, she was originally alleging in her 
 
            original petition a cumulative type injury.
 
            
 
                 The parties stipulated that claimant received an injury 
 
            that arose out of and in the course of her employment on 
 
            July 24, 1987.  It is also obvious from the medical records, 
 
            history and evidence presented that that injury was 
 
            temporary in nature and did not result in any residual 
 
            permanent partial disability or impairment, and it appears 
 
            defendants paid for any obligation or liability resulting 
 
            from that injury.  The undersigned will not further address 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            whether a repetitive type injury occurred to claimant's 
 
            right shoulder in March 1988.
 
            
 
                 There were three cases recently featured in the 
 
            workers' compensation symposium held June 7 and 8, 1990, in 
 
            which the theory of injury was not controlling and that the 
 
            deputy had discretion to pick an injury date different than 
 
            that stipulated or set out by the parties.  The case of 
 
            Deheer v. Clarklift of Des Moines, File No. 804325 (May 12, 
 
            1989), held that the hearing deputy "was not precluded from 
 
            finding a cumulative injury even though the pleadings 
 
            alleged only a traumatic injury.  Similarly, the deputy was 
 
            free to find a healing period that differed from the 
 
            stipulation of the parties where the record supported the 
 
            deputy's determination.  In the case of Shank v. Mercy 
 
            Hospital Medical Center, File No. 719627 (August 28, 1989), 
 
            it was held on appeal:
 
            
 
                 that the deputy was not precluded from finding 
 
                 that claimant's congenital eye defect was a prior 
 
                 loss for purposes of the Second Injury Fund, even 
 
                 though claimant had relied on a different prior 
 
                 injury in his pleadings and at the hearing.  A 
 
                 deputy is entitled to determine the nature of 
 
                 claimant's injury and entitlement to compensation 
 
                 from the evidence presented, regardless of 
 
                 particular theories pled.  The strict rules of 
 
                 pleading do not apply to a workers' compensation 
 
                 case.
 
            
 
                 In the case of McCoy v. Donaldson Company, Inc. File 
 
            Nos. 805200/752670 (April 28, 1989), it was held "that the 
 
            deputy was free to find a cumulative injury even though two 
 
            traumatic injury dates, and rates, were pled."  It would 
 
            appear from these cases that the undersigned is at liberty 
 
            to determine that possibly claimant incurred an injury in a 
 
            cumulative nature in March 1988.
 
            
 
                 The undersigned believes this current case can be 
 
            distinguished from the previously cited cases by the fact 
 
            that it is very obvious from the file, the evidence, and the 
 
            arguments of counsel that it was important that the injury 
 
            date be specifically pled, because the defendant insurance 
 
            company named in all petitions filed by claimant was only 
 
            involved if there was, in fact, a July 24, 1987 injury.  It 
 
            was obvious that claimant's attorney was made well aware of 
 
            the fact that defendant insurance carrier was not involved 
 
            if there was an injury for a period of August 1, 1987 and 
 
            thereafter.  Defendant insurance carrier should not be 
 
            burdened with the expense of defending a case and paying 
 
            attorney fees for an injury for which it is obviously not 
 
            responsible.  Claimant could have considered its second 
 
            petition filed in November 1989 as a new petition and paid a 
 
            filing fee, at which time the cases would most likely have 
 
            been consolidated upon a proper motion and the matter before 
 
            this deputy would have involved or could have involved 
 
            allegations of both injuries, in which case the claimant 
 
            would have had to name another insurance company concerning 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            any March 1988 alleged injury.  Specifically, claimant wrote 
 
            the industrial commissioner's office and emphasized that its 
 
            additional petition and original notice was an amendment and 
 
            was not alleging an additional injury date.   Also, see Jt. 
 
            Ex. 1, pp. 9-10 in which claimant's attorney emphasized the 
 
            date is July 1987.  Because of all of the above, it is not 
 
            necessary to set out any further findings, testimony, or 
 
            restrictions claimant may be having.  The undersigned finds 
 
            that claimant has not proven that she has any permanent 
 
            impairment or disability resulting from her July 24, 1987 
 
            injury and that any liability of the defendants that may 
 
            have occurred from said July 24, 1987 injury has, in fact, 
 
            been totally paid by defendant employer.  It is further 
 
            found that any disability or impairment for which claimant 
 
            complains or alleges has resulted from an injury other than 
 
            July 24, 1987.  Any further issue is moot in light of the 
 
            above findings.  Therefore, claimant is responsible for the 
 
            Iowa Lutheran medical bill in dispute and, also, he is not 
 
            entitled to any reimbursement for mileage connected with his 
 
            medical treatment since all the mileage as represented by 
 
            Joint Exhibit 4, is in reference to mileage incurred 
 
            regarding an originally alleged March 1988 injury.
 
            
 
                 Claimant has failed to carry her burden of proof as to 
 
            causal connection.  Therefore, claimant further fails to 
 
            recover on any other issues herein.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 24, 
 
            1987 is causally related to the disability on which she now 
 
            bases her 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). 
 
            
 
                 It is further concluded that claimant did not incur any 
 
            permanent injuries, permanent impairment or permanent 
 
            partial disability as a result of her July 24, 1987 injury.
 
            
 
                 Claimant lost no work as a result of her July 24, 1987 
 
            injury.
 
            
 
                 Claimant is entitled to no healing period, temporary 
 
            partial disability, temporary total disability or permanent 
 
            partial disability benefits as a result of her July 24, 1987 
 
            injury.  Although the parties have stipulated as to credit 
 
            for such benefits that have been paid, they were paid for an 
 
            alleged injury other than the July 24, 1987 injury.  
 
            Therefore, no credit is allowed against the July 24, 1987 
 
            injury.
 
            
 
                 Claimant is not entitled to any reimbursement for 
 
            mileage as reflected in Joint Exhibit 4.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Claimant is not entitled to reimbursement for her Iowa 
 
            Lutheran Hospital bill.
 
            
 
                                          ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            That claimant shall pay the costs of this action, pursuant 
 
            to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this _____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Mark Pennington
 
            Attorney at Law
 
            620 Fleming Bldg
 
            218 Sixth Ave
 
            Des Moines IA 50309
 
            
 
            Mr Cecil L Goettsch
 
            Attorney at Law
 
            1100 Des Moines Bldg
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                                          1108.50; 5-1100; 5-1108.50
 
                                          Filed August 2, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOYCE ROMIG,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 893347
 
            vs.                           :
 
                                          :
 
            IMI CORNELIUS CO.,            :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN MUTUAL LIABILITY,    :
 
            INSURANCE COMPANY by IOWA     :
 
            INSURANCE GUARANTY            :
 
            ASSOCIATION,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108.50
 
            Claimant failed to prove her alleged disability was causally 
 
            connected to her injury of July 24, 1987.
 
            Claimant originally filed a petition alleging March 1988 
 
            cumulative injury.  After "specific date" order was sent by 
 
            industrial commissioner's office, claimant filed another 
 
            petition without filing fee alleging July 24, 1987 date and 
 
            per a follow-up letter, instructed the commissioner's office 
 
            that the new petition was to be considered an amendment.  
 
            Same defendant insurance company was on both petitions.  In 
 
            fact, depending on the date of injury, a different insurance 
 
            company was potentially liable.  Claimant knew this or 
 
            should have known this.
 
            Deputy found the Deheer case, File No. 804325 (May 12, 
 
            1989); Shank case, File No. 719627 (August 28, 1989); and 
 
            McCoy case, File Nos. 805200/752670 (April 28, 1989), 
 
            allowing deputy to find a date contra to date pled 
 
            inapplicable under the particular circumstances of this 
 
            instant case.  See Workers' Compensation Symposium June 7 
 
            and 8, 1990, pp. 65-66.  Claimant was held to the July 24, 
 
            1987 date pled in amendment.
 
            Claimant took nothing from this proceeding.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHARYL A. GOYER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 893372
 
            CITY OF CEDAR RAPIDS,    :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            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 April 12, 1991 is affirmed and is adopted as 
 
            the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 Preponderance of the evidence means greater weight of 
 
            evidence; that is, the evidence of superior influence or 
 
            efficacy.  Bauer v. Reavell, 219 Iowa 1212, 216 N.W. 39 
 
            (1935).
 
            
 
                 A party's burden as to proof is not discharged by 
 
            creating an equipoise.  Volk v. International Harvester Co.,  
 
            252 Iowa 298, 106 N.W.2d 649 (1960).
 
            
 
                 A factor is substantial when reasonable persons 
 
            considering that factor would regard it as a cause, that is, 
 
            as being in some pertinent part responsible for the result 
 
            produced.  See, Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 
 
            1972).  
 
            
 
                 A factor is substantial when it is material in 
 
            producing a result.  A factor may be substantial without 
 
            being either exclusively or even predominantly the 
 
            determinant of the result, however.  See Jones v. City of 
 
            Des Moines, 355 N.W.2d 49 (Iowa 1984); Montgomery Properties 
 
            v. Economy Forms, 305 N.W.2d 470 (Iowa 1981).  
 
            
 
                 Defendant correctly states that a factor may be 
 
            substantial without being the exclusive or predominant 
 
            determinant of an outcome.  Nonetheless, that clarification 
 
            of the legal standard does not change the result in this 
 
            matter.  As the deputy stated, the intoxication must have 
 
            been established not just as possible [substantial] factor 
 
            but as a probable substantial factor in the injury arising 
 
            out of and in the course of the employment for defendant to 
 
            prevail under Iowa Code section 85.16(2).  Again as the 
 
            deputy stated, decedent's marijuana ingestation and 
 
            marijuana intoxication may have played some role in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            decedent's fatal accident.  "May" is language of possibility 
 
            not probability, however.  The record reflects and the 
 
            deputy set forth a variety of other factors that are at 
 
            least as possible and perhaps more probable explanations for 
 
            decedent's behavior at and about the time of the fatal 
 
            incident.  Under the record presented, reasonable persons 
 
            could well disagree as to whether decedent's marijuana 
 
            intoxication bore some responsibility for, that is, was a 
 
            substantial factor in causing, decedent's fatal injury.  The 
 
            evidence, at best, creates an equipoise.  An equipoise is 
 
            insufficient to carry defendant's burden under section 
 
            85.16(2).
 
            
 
                 Defendant shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Boulevard, S.E.
 
            P.O. Box 998
 
            Cedar Rapids, IA  52406-0998
 
            
 
            Mr. Walter J. Steggall, Jr.
 
            Attorney at Law
 
            First Trust & Savings Bank Bldg.
 
            1203 Third St. SE, Suite 7
 
            Cedar Rapids, IA  52401
 
            
 
            Mr. James H. Flitz
 
            Attorney at Law
 
            City Hall - Seventh Floor
 
            Cedar Rapids, IA  52401
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1601, 1403.30 
 
                      Filed January 22,1993
 
                      Byron K. Orton
 
                      JMI
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHARYL A. GOYER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 893372
 
            CITY OF CEDAR RAPIDS,    :
 
                      :       A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            SELF-INSURED,  :
 
                      :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            1601, 1403.30
 
            Summary affirmance of deputy's decision filed April 12, 
 
            1991, with short additional analysis including discussion of 
 
            meaning to be given term "substantial factor" in section 
 
            85.16(2).
 
            
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         SHARYL A. GOYER,              :
 
                                       :         File No. 893372
 
              Claimant,                :
 
                                       :      A R B I T R A T I O N
 
         vs.                           :
 
                                       :         D E C I S I O N
 
         CITY OF CEDAR RAPIDS,         :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding for death benefits upon the petition of 
 
         Sharyl A. Goyer, filed on January 18, 1990.  Charles R. Goyer, 
 
         Jr., is the deceased husband of Sharyl A. Goyer and father of 
 
         minor children, Charles Goyer, 8 years old, and Eric Goyer, 4 
 
         years old.  Claimant's petition alleges that his death arose out 
 
         of and in the course of his employment with defendant, City of 
 
         Cedar Rapids, on August 5, 1988 and seeks benefits under the Iowa 
 
         Workers' Compensation Act from that employer who is self-insured.
 
         
 
              A hearing was held in this case in Cedar Rapids, Iowa on 
 
         March 21, 1991.  The record consists of claimant's exhibits 1-11 
 
         and defendant's exhibits A, B, C, E-4, H, D (pages 6-17).  
 
         Claimant objected to defendant's exhibit D (pages 1-5 & 12) which 
 
         was sustained.  Defendant made an offer of proof in regard to 
 
         this exhibit.  The record also consists of the testimony of the 
 
         following witnesses:  Sharyl A. Goyer, Dennis Lee Cram, Peter 
 
         Hoy, Lonnie Ray McDonald, Richard F. Fiester, M.D., John Lalla, 
 
         Richard White, and William Lockhart.  The case was considered 
 
         fully submitted at the close of the hearing, however, the parties 
 
         requested permission to file briefs.
 
         
 
                                      issues
 
         
 
              Pursuant to the prehearing report and order dated March 21, 
 
         1991, the parties have stipulated that Charles Goyer (decedent) 
 
         was employed by the City of Cedar Rapids on the date of his 
 
         death, August 5, 1988; and that the proper rate of compensation 
 
         is $275.52.
 
         
 
     
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         The issues presented for resolution include:
 
         
 
              Whether decedent sustained an injury causing death on August 
 
         5, 1988, arising out of and in the course of his employment with 
 
         the City of Cedar Rapids.
 
         
 
              Defendant asserts an affirmative defense of intoxication 
 
         under Iowa Code section 85.16(2).
 
         
 
                                 findings of fact
 
         
 
              The undersigned has carefully considered all the testimony 
 
         at the hearing, the arguments made and the evidence identified in 
 
         the exhibits herein, and makes the following findings:
 
         
 
              On August 5, 1988, Charles Raymond Goyer, Jr., a 33 year old 
 
         married man with two minor children, reported for work at the 
 
         City of Cedar Rapids Street Department at approximately 6:45 a.m.  
 
         At that time Mr. Goyer was approximately 5 feet 9 inches tall and 
 
         weighed 140 pounds.  He had worked at the street department for 
 
         more than 10 years.
 
         
 
              At approximately 7:00 a.m. on that day, Mr. Goyer began his 
 
         workday, which involved the operation of a catepillar-style motor 
 
         grader.  Later, at about 8:30 a.m. on that same day, Mr. Goyer 
 
         took a break from work for approximately a half an hour, during 
 
         which time he ate some food at the Safari Lounge with other city 
 
         heavy equipment operators.
 
         
 
              Later, at approximately 9:30 or 9:40 a.m. on that same day, 
 
         Mr. Goyer was again operating his motor grader and he stopped 
 
         work to have a discussion with Daniel Jones, a co-worker, regard
 
         ing a motorcycle accident which had occurred the night before on 
 
         21st Street.  He climbed out of the cab and down from the motor 
 
         grader and stood about 15 feet away and talked with Mr. Jones.  
 
         At no time before or during this conversation was the blade of 
 
         the motor grader lowered to the ground.  The emergency brake was 
 
         not used to secure the grader because it was not operative unless 
 
         held onto by the operator.
 
         
 
              In any event, the unattended motor grader began rolling down 
 
         the road and Mr. Goyer began running after it.  Mr. Goyer caught 
 
         up with the grader and as it went off into the roadside ditch, he 
 
         slipped and it ran over him, which resulted in his death.
 
         
 
              Later that day, an autopsy was performed on Mr. Goyer by a 
 
         pathologist in Cedar Rapids, Iowa.  During the examination of the 
 
         decedent's clothing, a flattened brass case was found.  Within 
 
         this case were paper-covered cigarette-like objects which were 
 
         later determined to contain marijuana.
 
         
 
              Also, during the autopsy, toxicological samples of blood and 
 
         urine were obtained.  Urine sample was tested by Medtox 
 
         Laboratories, Inc., and it was determined that the decedent's 
 
         urine had 295 NG/ML of NOR-ll-Delta-9-Carboxy-THC.
 
         
 
              Toxicological sample of the autopsy blood was sent to Smith 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Kline Bio-Science Laboratory and thereafter two specific toxicol
 
         ogy laboratories in Los Angeles, California, for testing.  
 
         Testing was done by Gaschromatograph Mass Spectrometry and it was 
 
         determined that the decedent's autopsy blood contained 19 NG/ML 
 
         of Delta-9-THC and 60 NG/ML of carboxy-Delta-9-THC.
 
         
 
              Claimant's wife, Sharyl A. Goyer, testified at the hearing 
 
         and stated that her husband occasionally smoked marijuana in the 
 
         evenings but to the best of her knowledge, never used it before 
 
         work.  She stated that she did not observe him using marijuana 
 
         the evening of August 4, 1988, between 11:30 and 12:30 p.m. and 
 
         was not up with him the morning of August 5, 1988 and did not see 
 
         him before he went to work that day.  She described her husband 
 
         as a level headed person with good common sense who was a good 
 
         husband and father.  She doubted whether he would do something so 
 
         foolish and ill-advised as to smoke marijuana on the job.  She 
 
         stated that she did not know where Charlie got the marijuana.
 
         
 
              Dennis Lee Cram, a heavy equipment operator with the City of 
 
         Cedar Rapids, also testified at the hearing.  He stated that he 
 
         had operated Mr. Goyer's grader #191 for about three years from 
 
         1984-1986 and knew that the emergency brake on the machine was 
 
         inoperable.  He reported it to the shop foreman on at least four 
 
         occasions but it was never fixed.  He stated that it was not 
 
         uncommon for grader operators not to lower the blade on the 
 
         grader when working on an oiled street or new construction 
 
         because it would ruin the street.  Daniel D. Jones corroborated 
 
         this testimony in his deposition testimony taken on June 19, 1990 
 
         (Claimant's Exhibit 1, page 20, lines 4-25).
 
         
 
              Peter Hoy, a heavy equipment operator with the Cedar Rapids 
 
         Street Department, also testified at the hearing.  He stated he 
 
         worked in the southwest part of Cedar Rapids on August 5, 1988 
 
         one mile from decedent's work site.  He testified that Mr. Lonnie 
 
         McDonald picked him and decedent up the morning of August 5, 1988 
 
         and drove them to the Safari Lounge where they all had breakfast.  
 
         He stated that decedent did not smoke marijuana during coffee 
 
         break and he did not notice anything unusual about his behavior 
 
         during their time they spent together.  He stated that he was 
 
         also told never to lower the blade on the grader on an oiled 
 
         street because it tore the street up.  He also testified that it 
 
         is not a normal procedure to shut the grader off every time you 
 
         get out of it.
 
         
 
              Lonnie Ray McDonald testified that he had coffee break with 
 
         Peter Hoy and decedent the morning of August 5, 1988.  He was 
 
         assigned to work on the southwest side of Cedar Rapids and work 
 
         with decedent every day.  He testified that Mr. Goyer never 
 
         smoked marijuana on the job.  However, he admitted that he saw 
 
         decedent use marijuana on other occasions.  He indicated that he 
 
         witnessed the accident on August 5, 1988 and he saw claimant run
 
         ning after the grader and slipping and falling under the machine 
 
         which rolled over him.
 
         
 
              William Lockhart, Cedar Rapids streets program director, 
 
         testified that he arrived at the accident scene shortly after he 
 
         heard the report over the radio.  He stated that the grader had 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         run up against the bank and was still running when he approached 
 
         it.  He stated he got inside the cab and shut it off.  He noted 
 
         that the parking brake was released and it was evident that the 
 
         machine had not been secured.  He stated that it is common prac
 
         tice not to lower the blade on an oiled road but that drivers are 
 
         taught either to shut the machine off and secure the grader in 
 
         some way before leaving it unattended.  He stated that it is a 
 
         natural reaction for a driver to run after a rolling road grader.
 
         
 
              William J. George, Ph.D., professor and director of toxicol
 
         ogy at Tulane University School of Medicine, testified by tele
 
         phonic deposition on June 5, 1990.  Dr. George has a doctor of 
 
         philosophy degree in pharmacology and is director of the Tulane 
 
         Drug Analysis Laboratory.  He testified to numerous experiences 
 
         in testing for illicit drugs and interpretation of tests results.  
 
         In commenting on the results of the autopsy and subsequent labo
 
         ratory med tox urinalysis and Smith Kline report, Dr. George 
 
         stated that:
 
         
 
              On the basis of the urine test; once again, the urinary 
 
              level of marijuana or of the 11-nor-delta 9-THC car
 
              boxylic acid indicates the presence of an illicit drug 
 
              which could be related to some state of intoxication, 
 
              which does not by itself prove such intoxication.
 
         
 
                  ...
 
         
 
              ...One is that there is a specific quantity of delta 
 
              9-THC present in the blood of this victim.  That concen
 
              tration is a significant quantity in that it exceeds 
 
              the levels that I had discussed with you earlier.
 
         
 
                  ...
 
         
 
              Secondly, this particular document shows that the 
 
              metabolite exists in a concentration of 60 nanograms 
 
              per mill which is about 3 to 3.2 times the concentra
 
              tion of the parent compound.  To me that indicates that 
 
              the usage of marijuana in this individual was less than 
 
              about three hours or so....
 
         
 
         (Ex. B, p. 58, ll. 19-24; p. 61, ll. 20-24; p. 62, ll. 4-10)
 
         
 
              Based on a reasonable degree of toxicologic certainty, Dr. 
 
         George opined that "Mr. Goyer had used marijuana within two to 
 
         three hours of the accident and that his ability to operate a 
 
         motor vehicle was impaired at the time of the accident." (Ex. B, 
 
         p. 89, ll. 16-19).
 
         
 
              In response to the question as to whether based on a reason
 
         able degree of toxicologic certainty, the decedent's intoxication 
 
         or impairment was a substantial factor in causing his death, Dr. 
 
         George responded as follows:
 
         
 
              Well, my interpretation comes straight from the litera
 
              ture.  When one is -- When one has a significant plasma 
 
              or blood level of the parent compound, it's a true 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              indicator of use of this compound....
 
         
 
                  ...
 
         
 
              That is a very important finding because that indicates 
 
              the blood compartment, which is in direct contact with 
 
              the brain, and, therefore, I feel from a professional 
 
              or from a toxicologic point of view, that there was a 
 
              causal relationship as based on the literature that 
 
              this man -- the level of marijuana in the blood of this 
 
              man was sufficient to have caused him to be in a state 
 
              of intoxication.
 
         
 
         (Ex. B, p. 94, ll. 6-10 & ll. 15-23)
 
         
 
              As to the behavioral manifestations of marijuana intoxica
 
         tion, Dr. George stated that a person under the influence may get 
 
         totally out of control of a situation and not know what to do; 
 
         demonstrate reduced motor skills; and have a distorted time/space 
 
         relationship.
 
         
 
              Ronald K. Siegel, Ph.D., a psychopharmacologist, testified 
 
         by deposition on January 29, 1991.  In this capacity, Dr. Siegel 
 
         has been involved in drug research, problems of drug abuse in 
 
         society and the diagnosis and treatment of drug-related problems.  
 
         He has been working with marijuana since the late 1960's.  He 
 
         described this drug as a hallucinogen which distorts the electri
 
         cal activity in the brain and confuses behavior.  Some psycholog
 
         ical effects of marijuana include mood elevation, a feeling of 
 
         inebriation/intoxication, memory problems and, most signifi
 
         cantly, state of "attentional dysfunction."  In addition, there 
 
         may be impairment and motor coordination, judgment, driving 
 
         skills, reaction time, social withdrawal, profound lethargy or 
 
         fatigue and distractibility (Ex. A, pp. 17-18).  After reviewing 
 
         the autopsy report and blood and urine toxicology reports, as 
 
         well as other reports pertaining to decedent's accident, Dr. 
 
         Siegel stated that the urine report indicates decedent had been 
 
         exposed recently to marijuana and the blood toxicology indicates 
 
         that he was under the influence of marijuana at the time of his 
 
         death.  He opined that "[t]he nature of the accident itself is 
 
         consistent [sic] with someone who is experiencing attentional 
 
         dysfunction as a result of marijuana intoxication..." (Ex. A-1).
 
         
 
              Another telephonic deposition was taken of Dr. George on 
 
         February 25, 1991.  Dr. George reiterated his prior opinion that, 
 
         based on the laboratory results, "Mr. Goyer was intoxicated at 
 
         the time of the accident."  (Ex. C, p. 16, ll. 23-24).  He stated 
 
         that his opinion is based on the plasma level of marijuana 
 
         reported to be 19 nanograms per milliliter in decedent's plasma.  
 
         He indicated that 9 nanograms per milliliter is the average 
 
         plasma concentration considered to be associated with intoxica
 
         tion (Ex. C, p. 4, ll. 22-23).  Dr. George stated that "there was 
 
         a significant or a substantial effect of the marijuana leading to 
 
         a state of intoxication which -- which in turn caused this acci
 
         dent."  (Ex. C, pp. 18-19, ll. 24-25 & 1-2).  Dr. George further 
 
         stated that "the delta 9-tetrahydrocannabinol in the plasma at 
 
         the level that it was present is an indication of relatively 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         recent use; the concentration at that particular time is an indi
 
         cation, again, of a level of marijuana which is associated 
 
         with...average high." (Ex. C, p. 19, ll. 23-25 & p. 20, ll. 1-5).  
 
         Dr. George further stated that "it is still quite probable that 
 
         there was an effect in terms of judgment, reaction time, and 
 
         motivation that -- that likely resulted in Mr. Goyer's so-called 
 
         performance on that fateful morning."  (Ex. C, p. 21, ll. 11-15).
 
         
 
                                conclusions of law
 
         
 
              The first issue to be determined is whether or not dece
 
         dent's injury on August 5, 1988, arose out of and in the course 
 
         of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that decedent received an injury on August 5, 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. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967). 
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (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, 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 rea
 
         sonably be, and while he is doing his work or something inciden
 
         tal to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 
 
         298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 
 
         261 Iowa 352, 154 N.W.2d 128 (1967). 
 
         
 
              The evidence in this case clearly demonstrates that decedent 
 
         was in the course of his employment when the accident occurred.  
 
         There is no dispute that claimant was an employee of the City of 
 
         Cedar Rapids Public Works Department.  There is also no dispute 
 
         that he arrived at work at 7:00 a.m. the morning of August 5, 
 
         1988 and Charlie was assigned to run a grader on 21st Street, 
 
         just south of 37th Avenue in Cedar Rapids known as the southwest 
 
         quadrant.  There was also no dispute that decedent was involved 
 
         in a fatal accident on August 5, 1988, while in the course of his 
 
         employment with the City of Cedar Rapids.  He was located where 
 
         he reasonably might be in the performance of his duties as road 
 
         grader and was doing something incidental to those duties.
 
         
 
              Defendant has raised the affirmative defense of intoxication 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         by marijuana.  The Iowa Supreme Court in Reddick v. Grand Union 
 
         Tea Co., 230 Iowa 108, 296 N.W. 800 (1941) sets forth the rule 
 
         for dealing with affirmative defenses.  The opinion of the court 
 
         in Reddick is provided that once claimant sustains the burden of 
 
         showing that an injury arose out of and in the course of employ
 
         ment, claimant prevails unless defendant can prove by a prepon
 
         derance of the evidence an affirmative defense.
 
         
 
              Iowa Code section 85.16 states in pertinent part as follows:
 
         
 
              No compensation under this chapter shall be allowed for 
 
              an injury caused:
 
         
 
                  ...
 
         
 
              2.   By the employee's intoxication, which did not 
 
              arise out of and in the course of employment but which 
 
              was due to the effects of alcohol or another narcotic, 
 
              depressant, stimulant, hallucinogenic, or hypnotic drug 
 
              not prescribed by an authorized medical practitioner, 
 
              if the intoxication was a substantial factor in causing 
 
              the injury.
 
         
 
              The intoxication defense requires a showing not only that 
 
         claimant was intoxicated at the time of the injury, but also that 
 
         the intoxication was a substantial factor in bringing about the 
 
         injury.  Intoxication must be shown not just to be a possible 
 
         factor, but a probable substantial factor.  Stull v. Truesdale 
 
         Coop Elevator Company, (Appeal Decision, December 14, 1987).
 
         
 
              The evidence clearly demonstrates that decedent had a sig
 
         nificant amount of delta 9-THC in his blood plasma at the time of 
 
         his death indicating a recent and significant use of marijuana 
 
         (less than 3 hours or so) prior to the accident.  Testimony from 
 
         decedent's widow indicates that he was an active smoker of mari
 
         juana and habitual user.  Therefore, defendant has met the first 
 
         criteria of the intoxication defense.  However, they must also 
 
         show that the intoxication was a substantial factor in bringing 
 
         about the accident.  The intoxication defense is an affirmative 
 
         defense and defendant must prove that intoxication was a probable 
 
         substantial factor in the accident.
 
         
 
              The Iowa Supreme Court in Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348 (Iowa 1980) stated at 354:
 
         
 
              A cause is proximate if it is a substantial factor in 
 
              bringing about the result.  See Holmes v. Bruce Motor 
 
              Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974).  It 
 
              only needs to be one cause; it does not have to be the 
 
              only cause.  See  Langford v. Keller Excavating & 
 
              Grading, Inc., 191 N.W.2d at 670.
 
         
 
              For a cause to be proximate it must be substantial.  It must 
 
         exist to the degree that the event, in this case, the accident, 
 
         would not have occurred in its absence.  The cause, in order to 
 
         be proximate, cannot be insignificant or trivial.  The only opin
 
         ion evidence concerning the cause of the accident came from Dr. 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Ronald Siegel, a psychopharmacologist and Dr. William George, a 
 
         toxicologist.  In general, both doctors indicate that decedent 
 
         was "under the influence of marijuana" at the time of the acci
 
         dent.  Dr. Siegel opined that due to the high level of marijuana 
 
         in claimant's blood plasma "marijuana intoxication can't be ruled 
 
         out as a significant factor in causing the accident" (Ex. A, p. 
 
         33).  Dr. George concurred with this opinion and noted that it is 
 
         quite probable that decedent's judgment, reaction time, balance 
 
         and coordination were affected at the time of that accident due 
 
         to the quantity of delta 9-THC in his blood plasma.
 
         
 
     
 
         
 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         In contrast, decedent's co-workers observed nothing unusual about 
 
         his behavior the morning of the accident.  He clocked in at 7:00 
 
         a.m. and conversed with Daniel Jones.  Mr. Jones testified that 
 
         decedent displayed none of the characteristics of someone who is 
 
         under the influence of marijuana (Cl. Ex. 1, p. 11, ll. 11-25).  
 
         Peter Hoy, co-worker who was with decedent at a 30 minute coffee 
 
         break, testified that he did not notice anything unusual about 
 
         decedent's behavior or his work.  Mr. Jones saw claimant and 
 
         spoke with him immediately prior to the accident and again noted 
 
         nothing unusual about his behavior.
 
         
 
              Although decedent may have been negligent when he left his 
 
         grader running on a slight incline without securing it and chas
 
         ing it while it rolled down the hill, his actions were not the 
 
         result of his intoxication but only indicate that he used poor 
 
         judgment.  Other city machine operators testified that the brake 
 
         on grader 191 which decedent was using that day never worked and 
 
         it was understandable for him not to lower the blade to secure 
 
         the vehicle because he was working on an oiled street and it was 
 
         common knowledge that lowering the blade on a oil street would 
 
         tear it up.  No one who spent time with decedent a few hours 
 
         prior to the accident observed him to be uncoordinated, incoher
 
         ent, or otherwise impaired.  While marijuana may have played some 
 
         part in producing the accident which resulted in decedent's 
 
         death, it is also possible that the accident may have occurred 
 
         even if decedent had not smoked any marijuana.  The evidence does 
 
         not exclude other reasonable causes for the accident totally 
 
         unrelated to decedent's marijuana use.  The undersigned concludes 
 
         that defendant has failed to prove by a preponderance of the evi
 
         dence that decedent's intoxication was a substantial factor in 
 
         causing the accident which resulted in his death.
 
         
 
                                      order
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendant pay to decedent's surviving spouse, Sharyl A. 
 
         Goyer, workers' compensation benefits in accordance with the pro
 
         visions of Iowa Code section 85.31.  Any accrued but unpaid 
 
         amounts shall be paid in a lump sum together with interest pur
 
         suant to section 85.30.
 
         
 
              That pursuant to Iowa Code section 85.29, defendant shall 
 
         pay Charles A. Goyer's burial expenses, not to exceed one 
 
         thousand dollars ($1,000).
 
         
 
              Defendant is further ordered to pay to the treasurer of the 
 
         State of Iowa four thousand dollars ($4,000) for the Second 
 
         Injury Fund pursuant to Iowa Code section 85.65.
 
         
 
              The costs of this action are taxed against defendant 
 
         pursuant to industrial commissioner's rule 343 IAC 4.33.
 
         
 
              A final report shall be filed by defendant when this award 
 
         is paid as requested by the agency pursuant to rule 343 IAC 3.l.
 
         
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this ____ day of April, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas J. Currie
 
         Attorney at Law
 
         3401 Williams Blvd SW
 
         P O Box 998
 
         Cedar Rapids  IA  52406
 
         
 
         Mr. James H. Flitz
 
         Attorney at Law
 
         City Hall 7th Floor
 
         Cedar Rapids  IA  52401
 
         
 
         Mr. Walter J. Steggall, Jr.
 
         Attorney at Law
 
         1203 3rd St  SE
 
         ST #7
 
         Cedar Rapids  IA  52401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50; 1402.30;
 
                           1601; 1805
 
                           Filed April 12, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHARYL A. GOYER,              :
 
                                          :         File No. 893372
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            CITY OF CEDAR RAPIDS,         :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1108.50; 1402.30; 1601; 1805
 
            Claimant, widow of deceased wage earner, filed an 
 
            application for death benefits.  Decedent was killed in the 
 
            course of his employment with the City of Cedar Rapids when 
 
            he was run over by a runaway road grader.  Employer raised 
 
            affirmative defense of marijuana intoxication.  Expert 
 
            opinion demonstrated that decedent had a significant 
 
            marijuana level in blood plasma and significant use of the 
 
            substance three hours prior to the accident.  However, 
 
            co-workers observed nothing unusual or intoxicating about 
 
            decedent's behavior prior to the accident.  While marijuana 
 
            may have played some part in producing the accident which 
 
            resulted in death, it is also possible that the accident may 
 
            have occurred even if decedent had not smoked marijuana.  
 
            The evidence does not exclude other reasonable causes for 
 
            the accident totally unrelated to decedent's marijuana use.  
 
            Therefore, defendant has failed to prove by a preponderance 
 
            of the evidence that decedent's intoxication was a 
 
            substantial factor in causing the accident which resulted in 
 
            his death.