BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         EUGENE WARNER,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                    File No. 936537
 
         SIVYER STEEL CORPORATION,       
 
                                                      A P P E A L
 
              Employer,   
 
                                                   D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE   
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         October 14, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of September, 1992.
 
         
 
         
 
         
 
         
 
                                        ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         505 Plaza Office Bldg.
 
         Rock Island, IL  61201
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 E. 3rd St.
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              9998
 
                                              Filed September 30, 1992
 
                                              Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            EUGENE WARNER,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                       File No. 936537
 
            SIVYER STEEL CORPORATION,       
 
                                                        A P P E A L
 
                 Employer,   
 
                                                       D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed October 
 
            14, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EUGENE WARNER,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936537
 
            SIVYER STEEL CORPORATION,     :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Eugene 
 
            Warner, claimant, against his employer, Sivyer Steel, and 
 
            the insurance carrier, Liberty Mutual Insurance Company.
 
            
 
                 The hearing was held on August 1, 1991 at Davenport, 
 
            Iowa.
 
            
 
                 The record in this case consists of the live testimony 
 
            of the claimant; defendants' exhibits A-I and K; claimant's 
 
            exhibits 1 and 2.  Defendants lodged an objection against 
 
            claimant's exhibits 3, 4 and 5, arguing that these exhibits 
 
            were not served fifteen days prior to the hearing.  This 
 
            objection was sustained.  Defendants attempted to offer 
 
            exhibit J.  Claimant objected, stating that the exhibit had 
 
            not been served within the fifteen days prior to the hearing 
 
            and, the information had been received after the date 
 
            discovery was to be completed.  This objection was 
 
            sustained, and defendants made an offer of proof of exhibit 
 
            J.  As a result, claimant attempted to offer exhibit 6, 
 
            defendants objected citing the fifteen day rule, and said 
 
            objection was sustained.  Claimant proceeded to make an 
 
            offer of proof of claimant exhibit 6.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on February 21, 1937.  At the time of 
 
            the hearing, we was 54 years of age.  Claimant is married, 
 
            and has no dependant children living at home.
 
            
 
                 Claimant has worked for defendant Sivyer Steel for 26 
 
            years, his last date of employment being September 23, 1988.  
 
            At the time of the hearing, workers had been on strike at 
 
            the plant for approximately two years.
 
            
 
                 Claimant's duties while working for defendant included 
 
            11 years in the molding department, where he was in constant 
 
            contact with silica sand.  Claimant spent the last 15 years 
 
            in the melting department.
 
            
 
                 Prior to leaving the molding department, in 
 
            approximately 1974, claimant had one episode of "spitting up 
 
            blood", or hemoptysis.
 
            
 
                 A labor strike started at the plant in September of 
 
            1988, and claimant stopped working for the defendant 
 
            employer on September 23, 1988.  He has not been recalled 
 
            back to the plant.
 
            
 
                 From September 23, 1988 through April 8, 1990, claimant 
 
            did not seek medical treatment, yet stated that he suffered 
 
            from shortness of breath, coughing spells and fatigue.  On 
 
            April 9, 1990, claimant stated that as he was driving home, 
 
            he endured a coughing spell that caused him to "almost 
 
            blackout."  He sought treatment from Dr. Pritchard, and 
 
            underwent a chest x-ray.  (Defendant Exhibit F, page 1).  
 
            Claimant stated that he went to see Dr. Pritchard to see if 
 
            he was, "developing anything", yet also stated that he had 
 
            had breathing problems while working in the molding 
 
            department during his first 11 years with the company.  
 
            (Transcript, pp. 36-37).  Since the age of 16, claimant has 
 
            smoked one pack of cigarettes per day.
 
            
 
                 Dr. Pritchard was no longer taking new patients, and on 
 
            April 14, 1990, claimant proceeded to David Nebbling, D.O., 
 
            a general practitioner who specializes in osteopathic 
 
            manipulative therapy.  (Def. Ex. E, p. 19).  Dr. Nebbling 
 
            referred claimant to Akshay Mahadevia, M.D., a specialist in 
 
            internal medicine and pulmonary medicine, who examined 
 
            claimant on June 19, 1990.  Claimant underwent a battery of 
 
            pulmonary function tests "which revealed a moderate degree 
 
            of airway obstruction with moderate hyperinflation and a 
 
            decrease in the defusion capacity."  A chest x-ray obtained 
 
            from the Davenport Medical Center showed changes indicative 
 
            of chronic obstructive pulmonary disease, which Dr. 
 
            Mahadevia described as, "moderate."  He also noted that 
 
            claimant's history of exposure to silica explained the 
 
            presence of the restrictive defect.  (Def. Ex. D, pp. 1-3).
 
            
 
                 In October of 1990, defendants sent claimant to Peter 
 
            S. Jerome, M.D., a specialist in the field of pulmonary 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            medicine.  Aware of claimant's employment history and 
 
            smoking habits, he diagnosed claimant's condition as that of 
 
            "moderately severe chronic obstructive pulmonary disease 
 
            with components of emphysema and chronic bronchitis."  (Def. 
 
            Ex. C, pp. 1-3).  Furthermore, Dr. Jerome opined:
 
            
 
                 Noted increased interstitial markings in the mid 
 
                 and lower lung zones [are] mostly due to pulmonary 
 
                 siderosis which is a benign radiographic 
 
                 abnormality which comes as a consequence of 
 
                 inhalation of iron oxide containing fumes.  This 
 
                 particular pulmonary entity is benign and does not 
 
                 lead to progressive fibrosis or decrement in lung 
 
                 function or ability.  Siderosis is common amongst 
 
                 welders and furnace operators in a foundry 
 
                 setting.  He does have about a 10 year history of 
 
                 silica exposure.  The silica exposure that this 
 
                 patient had was not of the severity enough to 
 
                 cause a significant pulmonary silicosis which 
 
                 implies possible progressive pulmonary fibrosis.  
 
                 With the absence of any further silica exposures, 
 
                 it is unlikely that this patient would develop 
 
                 complications of pulmonary silicosis.
 
            
 
            (Def. Ex. C, pp. 3-4).
 
            
 
                 Dr. Jerome recommended a serum antinuclear antibody 
 
            tests to further explore the possible positive findings for 
 
            silicosis, and a baseline cardiopulmonary stress test to 
 
            determine claimant's functional impairment.  The stress test 
 
            was performed in March of 1991, and revealed a minimal 
 
            amount of functional impairment.  During the test, claimant 
 
            did not demonstrate arterial oxygen desaturation with 
 
            exercise, as would be seen with significant pulmonary 
 
            silicosis or other significant pulmonary interstitial lung 
 
            diseases.
 
            
 
                 Dr. Jerome was of the opinion that claimant's health 
 
            problems were not work-related, but instead were related to 
 
            his tobacco abuse.  (Def. Ex. C, p. 5).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury which arose out of and in the course of 
 
            his employment.  Claimant alleged an injury date of 
 
            September 23, 1988, which is the last date he worked for the 
 
            employer.
 
            
 
                 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).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 23, 
 
            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). 
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 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. 
 
            
 
                 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.
 
            
 
                 "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, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. 
 
            
 
                 Sivyer Steel manufacturers steel castings, and uses 
 
            silica sand to make the molds.  The silica sand is 
 
            transported by conveyor belt within the plant.
 
            
 
                 There is no question that workers at the Sivyer plant 
 
            are exposed to silica sand and silica dust.  Respirators are 
 
            provided, and employees undergo chest x-rays every other 
 
            year.
 
            
 
                 Claimant suffers from two distinct diseases:  chronic 
 
            obstructive lung disease, and restrictive lung disease.  
 
            Obstructive lung disease is the narrowing of air passages, 
 
            and is associated with tobacco abuse.  Restrictive lung 
 
            disease is the inability of the lungs to expand, and can be 
 
            caused by a history of silica exposure.
 
            
 
                 A diagnosis of silicosis can be based on one of three 
 
            factors:  1.  Exposure to silica dust; 2.  X-rays evidence 
 
            of silica nodules in the lungs; and, 3.  Pulmonary function 
 
            tests.  Drs. Jerome, Nebbling and Mahadevia have all 
 
            concurred that claimant suffers from a degree of restrictive 
 
            lung disease.  Claimant was able to describe his position at 
 
            the Sivyer plant, and stated that he was in contact with 
 
            silica dust on daily basis.  As a result, claimant has 
 
            sustained an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 Defendants raise the affirmative defense of lack of 
 
            timely notice of the injury.
 
            
 
                 Iowa Code section 85.23 governs timely notice:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 The ninety day time period for giving notice to the 
 
            employer does not begin to run until the worker should know 
 
            that his injury is "both serious and work connected."  
 
            Robinson v. Department of Transportation, 296 N.W.2d 809, 
 
            812 (Iowa 1980).
 
            
 
                 Recognizing the "seriousness" requirement of the notice 
 
            of the injury provides the worker appropriate relief from 
 
            the rigid ninety day rule in the case where a worker thinks 
 
            the injury is minor and will heal in a few days, but later 
 
            becomes compensable.
 
            
 
                 The burden of proof rests with the employer to show 
 
            that the employee failed to give sufficient notice of a 
 
            possible injury.
 
            
 
                 Although claimant had some breathing difficulties 
 
            throughout his long-term employment with defendant, even he 
 
            did not recognize the seriousness, or the possibility that 
 
            the problems were work-related until April 1990.  Chest 
 
            x-rays performed at the plant every two years did not 
 
            indicate a problem, and it was not until claimant sought 
 
            help from Dr. Pritchard that he knew, or should have known, 
 
            that his problem was serous and potentially work-related.  
 
            The employer knew of claimant's allegations on or about 
 
            April 26, 1990, well within the 90-day period.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury and his 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            23, 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). 
 
            
 
                 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Dr. Jerome is of the following opinion:
 
            
 
                 He did not demonstrate arterial oxygen 
 
                 desaturation with exercise as would be seen with 
 
                 significant pulmonary silicosis or other 
 
                 significant pulmonary interstitial lung diseases.  
 
                 He also had a normal cardiac response to exercise.  
 
                 It is my feeling that the patient's health 
 
                 problems were not work related, but secondary to 
 
                 his past history of tobacco abuse.  Chest x-ray 
 
                 obtained on 3/1/91 demonstrated hyperinflated lung 
 
                 fields without significant pulmonary infiltrates 
 
                 consistent with his chronic obstructive pulmonary 
 
                 disease.  Laboratory data including:  CBC, 
 
                 sedimentation rate and antinuclear antibody as 
 
                 enclosed were normal.
 
            
 
            (Jt. Ex. C, p. 5).
 
            
 
                 Dr. Mahadevia was of the following opinion:
 
            
 
                    Q.  During the course of your professional 
 
                 practice, did you ever have occasion to see a man 
 
                 named Eugene Warner?
 
            
 
                    A.  Yes, I did.
 
            
 
                    ....
 
            
 
                    Q.  Okay.  And would you tell us what your 
 
                 findings were?
 
            
 
                    A.  When I saw him after reviewing his history 
 
                 and examining him, I thought that he had two 
 
                 problems.  One was chronic obstructive lung 
 
                 disease.  And, No. 2, history of silica exposure 
 
                 with restrictive lung disease.
 
            
 
                    ....
 
            
 
                    Q.  Okay.  Did you feel that the exposure to 
 
                 silica dust was a significant factor in his 
 
                 problems?
 
            
 
                    A.  It was one of the factors.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                    ....
 
            
 
                    Q.  Okay.  Would you say without quantifying it 
 
                 any further that the restrictive lung disease, the 
 
                 silicosis is a significant factor in his problems?
 
            
 
                    A.  Not as significant as chronic obstructive 
 
                 lung disease.
 
            
 
                    Q.  Maybe not as significant, but would you say 
 
                 it is significant?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Okay.  That's the word I'm after.
 
            
 
            (Cl. Ex. 2, pp. 5, 6, 7, 14)
 
            
 
                 Dr. Nebbling made the following evaluation:
 
            
 
                    Mr. Warner has Chronic Obstructive Pulmonary 
 
                 Disease with silicosis of the lung.
 
            
 
                    I find this condition to be permanent.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                    I find Mr. Warner to have a 25% impairment of 
 
                 the whole man due to his respiratory disease.
 
            
 
            (Def. Ex. E., p. 3)
 
            
 
                 Dr. Nebbling was also of the opinion that, "[d]ue to 
 
            Mr. Warner's chronic obstructive lung disease, he will be 
 
            unable to do prolonged physical labor for the rest of his 
 
            life."  (Jt. Ex. E, p. 12).
 
            
 
                 First of all, Dr. Nebbling's opinion is disregarded, as 
 
            he is a doctor of osteopathic medicine, with no particular 
 
            speciality.  In fact, due to the nature of claimant's injury 
 
            or disease, Dr. Nebbling referred him to Dr. Mahadevia for 
 
            treatment.  
 
            
 
                 Dr. Mahadevia provides interesting testimony to 
 
            establish a causal connection between claimant's injury and 
 
            his disability.  His evaluation, dated June 19, 1990, 
 
            concentrates on claimant's obstructive pulmonary disease, 
 
            which is caused by cigarette smoking.  His deposition 
 
            testimony of June 26, 1991, also focuses on the extent of 
 
            claimant's obstructive lung disease, yet he does attribute a 
 
            significant portion of claimant's problems to the 
 
            restrictive disease; however, Dr. Mahadevia expressly states 
 
            that the restrictive process is not as significant as the 
 
            obstructive process.
 
            
 
                 Proximate cause between the injury and the disability 
 
            is established when the injury is a substantial factor in 
 
            bringing about the result.  See, Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 In the instant case, claimant has shown that he 
 
            sustained a loss of his lung function from silicosis of 
 
            between 10 percent to 20 percent.  (Mahadevia Deposition, p. 
 
            9).  Major findings were attributed to chronic obstructive 
 
            lung disease.  (Mahadevia Dep., p. 12).
 
            
 
                 And, Dr. Mahadevia expressly stated that 90 percent of 
 
            the etiology of claimant's symptoms are from tobacco abuse 
 
            and resultant chronic obstructive lung disease, with 10 
 
            percent of his symptoms attributable to the restrictive lung 
 
            disease.  (Mahadevia Dep., p. 14).
 
            
 
                 As a result, it is concluded that claimant has failed 
 
            to show by a preponderance of the evidence that the 
 
            restrictive lung disease, which is the direct result of 
 
            exposure to silica, is a significant, substantial cause of 
 
            his disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That each party will bear their respective costs of 
 
            pursuing this action, as stipulated to at the hearing.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Peter M. Soble
 
            Attorney at Law
 
            505 Plaza Office Bldg.
 
            Rock Island, IL  61201
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. 3rd Street
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108
 
                      Filed October 14, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            EUGENE WARNER, 	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 936537
 
            SIVYER STEEL CORPORATION, :
 
		                      :    A R B I T R A T I O N
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                 		      :
 
            LIBERTY MUTUAL INSURANCE  :
 
            COMPANY,  		      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant failed to prove that there was a causal 
 
            relationship between his disability and a work-related 
 
            injury.
 
            Claimant suffered from emphesema, and although he had been 
 
            exposed to silica sand in the workplace, he had smoked for 
 
            more than 35 years.  The medical evidence supported a 
 
            finding that claimant's health problems stemmed from 
 
            obstructive lung disease (caused by smoking) rather than 
 
            restrictive lung disease (caused by silicosis).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CEDRIC BROWN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 936538
 
                                          :
 
            CMC,                          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Cedric Brown filed a petition in arbitration 
 
            seeking benefits under the Iowa Workers' Compensation Act as 
 
            the result of an alleged work injury on October 15, 1987.  
 
            Defendants are his employer, CMC, and its insurance carrier, 
 
            Cigna.
 
            
 
                 This cause came on for hearing in Burlington, Iowa, on 
 
            August 27, 1991.  By previous order entered September 5, 
 
            1990, the record was closed to further evidence or activity 
 
            on the part of defendants, although proceedings were 
 
            monitored by defendants.  The record consists of claimant's 
 
            testimony and exhibits 1 through 18, inclusive.  Many 
 
            exhibits consisted of multiple copies of the same documents.
 
            
 
                                      issues
 
            
 
                 Because defendants' evidence and activity was cut off, 
 
            the parties did not enter into a stipulation as to facts and 
 
            issues.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether an employment relationship existed between 
 
            Cedric Brown and CMC on October 15, 1987;
 
            
 
                 2.  Whether claimant sustained an injury on that date 
 
            arising out of and in the course of that employment;
 
            
 
                 3.  Whether the injury caused temporary or permanent 
 
            disability and the nature and extent thereof;
 
            
 
                 4.  The rate of compensation; and,
 
            
 
                 5.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant stipulated that defendants should be entitled 
 
            to credit for all benefits voluntarily paid prior to 
 
            hearing.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Cedric Brown, 28 years of age at hearing, is a high 
 
            school graduate.  His work history consists of manual labor 
 
            jobs, particularly in janitorial work and landscaping.
 
            
 
                 On October 15, 1987, claimant was employed by defendant 
 
            CMC, "Correct Maintenance Corporation," as a water blaster.  
 
            This work involved cleaning machinery, presumably on a 
 
            contract basis, at a manufacturing concern located in 
 
            Keokuk, Iowa.  Claimant, single and with one dependant, had 
 
            been so employed for approximately two months, earning a 
 
            gross weekly wage of $217.00.
 
            
 
                 Claimant's injury occurred when, while so engaged in 
 
            his work, he fell through a roof skylight, fortunately 
 
            saving himself from a more serious fall when he hit and 
 
            managed to hang onto some protruding pipes variously 
 
            described as 12-25 feet below the skylight.  Claimant 
 
            testified that he injured his head, back and right knee.
 
            
 
                 Emergency room notes of the Keokuk Area Hospital where 
 
            claimant was taken after being rescued from the pipe show 
 
            that he was alert and oriented and presented by ambulance 
 
            with a cervical collar in place, a splint on the right leg 
 
            and a laceration over the left eye.  Claimant denied loss of 
 
            consciousness, back or neck pain.  His main complaint was of 
 
            pain in the left tibia with a laceration noticed.  Claimant 
 
            had a laceration of the right fourth finger, left scapula 
 
            and a small scraped area on the right mid-trunk.  A 
 
            laceration on the back of the head was cleansed.  Claimant 
 
            was coherent and reported being hungry.  Emergency room 
 
            physician, Dr. Barrows, reported lacerations and abrasions, 
 
            especially of the scalp, tibial contusion and minor closed 
 
            head injury.  Radiographic studies performed by R. L. 
 
            Kimmel, M.D., showed unremarkable abdomen, normal left tibia 
 
            and fibula and increased radiodensities over both occipital 
 
            regions thought to represent foreign bodies on or within the 
 
            superficial soft tissues of the scalp, but no evidence of 
 
            skull fracture.  Claimant was discharged to his supervisor.
 
            
 
                 Claimant has since seen many physicians for treatment 
 
            and evaluation and underwent an arthroscopic procedure to 
 
            the left knee on January 18, 1988.  He complains that, while 
 
            he could do anything at all prior to the injury, he is now 
 
            unable to perform manual labor, cannot lift in excess of 25 
 
            pounds, and cannot push, pull or stoop.  He says that he 
 
            cannot stand long on his knee, cannot bend his back and 
 
            cannot concentrate due to severe headaches.
 
            
 
                 Mr. Brown now receives Social Security disability and 
 
            testified that he is still off work from the injury, having 
 
            worked only approximately five hours a few months prior to 
 
            hearing.  However, this testimony is inconsistent with his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            exhibit 15, a letter from Shirley Penz of Penz Sales & 
 
            Service, who indicated that claimant worked from June until 
 
            September 1990, and could not perform his duties because of 
 
            constant complaints about his knees aching and headaches 
 
            from stooping, bending and constant moving required on that 
 
            job.  The exhibit does not disclose the nature of that job.
 
            
 
                 Claimant was seen in 1987 and though his surgery by 
 
            various physicians at the Orthopaedic Centers in Gary, 
 
            Indiana.  Arthroscopy of the right knee with partial lateral 
 
            meniscectomy was performed by V. Egwu, M.D., on January 18, 
 
            1988.  By February 19, claimant was complaining of 
 
            occasional discomfort, although his main pain had resolved 
 
            significantly.  He had full range of motion.  By April 8, 
 
            the charting physician ("NL") thought that claimant's knee 
 
            was up to 90 percent of normal and he was doing well, but 
 
            "mentally" needed some more time before returning to work.
 
            
 
                 By May 27, 1988, claimant began complaining of pain in 
 
            the left knee, which he had apparently bumped while washing 
 
            his car.  Claimant had full range of motion of the right 
 
            knee and, at his request, "NL" rated impairment at four 
 
            percent of the lower extremity.  "NL" noted that, although 
 
            Mr. Brown claimed that he twisted the left knee because of 
 
            continued difficulty with the right, "[t]his is a new and 
 
            current injury and I didn't know that it was related to his 
 
            old injury."
 
            
 
                 Chart notes of the Orthopaedic Centers do not reveal 
 
            cervical or lumbar complaints.
 
            
 
                 The record contains several pages of chart notes by 
 
            Okechi N. Nwabara, M.D., of Chiola Medical Associates, P.C., 
 
            including notes of October 29 and November 5, 1987.  Dr. 
 
            Nwabara's handwritten notes are mostly illegible, although 
 
            it appears that claimant made complaint of headaches, left 
 
            leg, finger and shoulder soreness.  He was doing well by 
 
            November 5 and released to return to work.
 
            
 
                 Dr. Nwabara referred claimant to Mridula Prasad, M.D., 
 
            a neurologist.  Dr. Prasad reported seeing claimant on May 
 
            24, 1988 with complaints of pain behind the right ear and 
 
            headaches.  Claimant complained of mood and personality 
 
            disturbance and difficulty concentrating.  Impression was of 
 
            post-concussion syndrome and hypertension (of which claimant 
 
            had a preexisting history).  Dr. Prasad caused a CT scan and 
 
            EEG to be performed, but both were reported negative.  Dr. 
 
            Prasad thereupon referred claimant for a psychiatric 
 
            evaluation.
 
            
 
                 On September 19, 1988, Robert S. Martino, M.D., 
 
            reported seeing claimant on a return visit the day before.  
 
            Claimant had no effusion and a full range of motion, but 
 
            complained of symptomatic pain over the right knee.  Dr. 
 
            Martino reported that claimant had been discharged from care 
 
            with a permanent partial impairment of 20 percent of the 
 
            leg.
 
            
 
                 Claimant was seen by neurosurgeon M. Hytham Rifai, 
 
            M.D., on November 16, 1988.  He concluded that claimant was 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            neurologically stable except for his psychiatric problem and 
 
            recommended no further evaluation.  Dr. Rifai released 
 
            claimant from care on December 12, 1988 following another 
 
            office visit.  He noted again that claimant's CT scan had 
 
            shown no abnormality.
 
            
 
                 Dr. Prasad reported that claimant had been seen again 
 
            in March 1989 complaining of headaches and bad nerves, which 
 
            he self-medicated with Tylenol #3 (a medication containing 
 
            codeine) and alcohol.  Dr. Prasad noted that claimant was 
 
            continuing to show progression of symptomatology which was 
 
            highly suggestive of depression.  Progression of 
 
            symptomatology in the absence of objective neurological 
 
            dysfunction is highly suggestive of underlying psychiatric 
 
            illness.  Dr. Prasad concluded that claimant was still 
 
            disabled, but from psychiatric illness rather than 
 
            neurological disease.
 
            
 
                 Claimant was seen in February 1989 by Mahim Vora, M.D., 
 
            of the Gary Community Mental Health Center, Inc.  Diagnosis 
 
            was as follows:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
              Axis I:   ICD-9-CM    309.0    Brief Depressive Reaction
 
                        DSM-III-R  (309.00)  (Adjustment Disorder with
 
                                             Depressed Mood)
 
                        ICD-9-CM    305.01   Alcohol Abuse, Continuous
 
                        DSM-III-R  (305.01)  Moderate
 
                        ICD-9-CM    305.20   Cannabis Abuse, Unspecified
 
                        DSM-III-R  (305.20)  (Intoxication) Mild
 
                        ICD-9-CM    305.62   Cocaine Abuse, Episodic
 
                        DSM-III-R  (305.62)  Mild
 
              Axis II:  ICD-9-CM    799.9    Other Unknown and
 
                                             Unspecified Cause
 
                        DSM-III-R  (799.90)  (Diagnosis or condition
 
                                             Deferred)
 
              Axis III: High blood pressure
 
              Axis IV:  Severity of Psychosocial Stressors: Industrial
 
                        Accident, inability to work, loss of significant
 
                        social relationships.
 
                        4-Severe
 
              Axis V:   Current GAF:  50   Highest GAF Past Year:  45
 
            
 
            (Exhibit 1, page 4)
 
            
 
                 Treatment was discontinued per claimant's request on 
 
            March 15, 1989.
 
            
 
                 On March 29, 1989, claimant underwent another EEG read 
 
            by C. Supapodok, M.D., as normal.
 
            
 
                 Ending in June 1989, claimant saw clinical psychologist 
 
            William H. Nimmer, Ph.D., for psychological review.  Dr. 
 
            Nimmer wrote on August 5, 1989, of his belief that 
 
            claimant's work injuries indeed had some impact on his life, 
 
            and that claimant had undergone a shift from feeling more 
 
            potent and vital to a status of regarding himself as 
 
            somewhat more dependent and entrapped with increased 
 
            feelings of depression and some substance abuse.  Prognosis 
 
            at that point was fair.  Dr. Nimmer diagnosed an adjustment 
 
            disorder with mixed emotional features secondary to the 
 
            injury present not only in mixed anxious and depressive 
 
            symptomatology, but also in terms of substance abuse 
 
            patterns which were then emerging.  By October 20, 1989, Dr. 
 
            Nimmer reported that claimant expressed concern about an 
 
            upcoming court hearing related to a battery incident.  Dr. 
 
            Nimmer felt claimant had "real issues to address in terms of 
 
            coming to grips with his personality trait patterns and 
 
            substance abuse," and was recommended for in-patient 
 
            treatment.
 
            
 
                 Dr. Supapodok performed a neurological evaluation on 
 
            September 22, 1989.  Complaints included chronic occipital 
 
            headaches on a daily basis, dizziness, and neck pain 
 
            radiating to both shoulders, moreso on the right.  Dr. 
 
            Supapodok's impressions were of:
 
            
 
                 1.  Chronic headache and dizziness, postcerebral 
 
            concussion syndrome related to the work injury sustained on 
 
            10-15-87;
 
            
 
                 2.  Chronic occipital headache, probably related to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            chronic muscle spasms from the C6 cervical radiculopathy, 
 
            believed related to the above injury (patient denied neck 
 
            pain or headache prior to the accident); and,
 
            
 
                 3.  Changes in personality, probably related to the 
 
            head injury.
 
            
 
                 Dr. Supapodok assessed disability as follows:
 
            
 
                 1.  The patient has been taking a rather excessive 
 
                 amount of narcotic containing type of pain 
 
                 medication from the pain.  He has become very 
 
                 depressed because of the loss of his job, physical 
 
                 disability to perform any regular job.  He has not 
 
                 been employed since the injury.  The depression 
 
                 apparently has [ ] excessive alcoholic 
 
                 consumption, which only helps to compound the 
 
                 problem further.  The EMG study in the left arm 
 
                 and paracervical muscles today revealed an 
 
                 objective evidence of C6 cervical radiculopathy, 
 
                 mainly on the left side, and I believe that this 
 
                 was the cause of the chronic muscle spasm, muscle 
 
                 contraction, and chronic occipital headaches.  
 
                 Since the injury occurred almost two years ago, I 
 
                 believe that he has reached a plateau of healing, 
 
                 and the symptoms that remain with him now are 
 
                 going to be permanent.  It is my opinion that the 
 
                 patient suffers from a total permanent partial 
 
                 disability of his neck in combination with chronic 
 
                 headaches of 5% of his total body function.
 
            
 
            (Exhibit 2, page 15)
 
            
 
                 On December 28, 1990, Dr. Martino wrote that claimant's 
 
            right knee injury was causally related to the subject work 
 
            incident and that claimant had sustained a permanent partial 
 
            impairment of 20 percent of that leg as a result.
 
            
 
                 Claimant intermittently has seen Darrell M. Hay, M.D.  
 
            Dr. Hay wrote on June 3, 1991, that when last seen, on that 
 
            date, claimant complained of intermittent tingling in the 
 
            arms and tightness between the shoulder blades along with 
 
            headaches when he played basketball.  Examination was 
 
            essentially normal, with good range of motion of the neck 
 
            and shoulders; strength and sensation was normal.  Dr. Hay 
 
            concurred with the opinion of Frederick Yuhas, neurologist, 
 
            that claimant was capable of working and in fact should 
 
            work.
 
            
 
                 The record does not otherwise contain evidence as to 
 
            Dr. Yuhas' findings and opinion.  Dr. Yuhas also referred 
 
            claimant to Percy N. Karanjia, M.D., for left arm numbness.  
 
            Dr. Karanjia noted on June 14, 1991, that claimant had 
 
            noticed sharp shooting pains as well as numbness in the 
 
            hands and arms bilaterally, left greater than right, since 
 
            the birth of his child on November 6, 1990.  His impression 
 
            was of:
 
            
 
                 1.  Probably left C6 nerve root stretch injury or 
 
            possibly stretch injury to the brachial plexus without 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            evidence of nerve root compression;
 
            
 
                 2.  Myofascial pain syndrome associated with the 1987 
 
            injury; and,
 
            
 
                 3.  Post-concussion syndrome associated with the 1987 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 The claimant must prove by a preponderance of the 
 
            evidence that his injury arose out of and in the course of 
 
            his employment.  Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 In the course of employment means that the claimant 
 
            must prove his injury occurred at a place where he 
 
            reasonably may be performing his duties.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Arising out of suggests a causal relationship between 
 
            the employment and the injury.  Crowe v. DeSoto Consol. 
 
            School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 Claimant's testimony establishes that he was employed 
 
            by defendant CMC on October 15, 1987.  He suffered a fall 
 
            through a skylight while performing regularly assigned work 
 
            performed where he had been assigned.  Claimant has met his 
 
            burden of proof in establishing an employment relationship 
 
            and that he sustained an injury arising out of and in the 
 
            course of that employment.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 According to Shirley Penz, claimant worked from June 
 
            (specific date unknown) until September 1990.  While 
 
            claimant recalls working only a few hours, the record also 
 
            discloses a substantial history of alcohol and other 
 
            substance abuse and mental disturbance.  The statement by a 
 
            former employer, obviously intended to assist him in this 
 
            litigation, is more reliable as to the extent of his 
 
            post-injury work history.  Based on an evaluation of 
 
            September 22, 1989, Dr. Supapodok concluded that claimant 
 
            had reached a plateau of healing.  While Dr. Prasad 
 
            indicated in March 1989 that claimant was disabled from 
 
            psychiatric illness rather than neurological disease, Dr. 
 
            Supapodok indicated that depression due to the loss of job 
 
            and physical disability was a causative factor with respect 
 
            to claimant's mental condition.  He concluded that chronic 
 
            headache, dizziness, post-cerebral concussion syndrome and 
 
            changes in personality were probably related to the work 
 
            injury.  Similarly, Dr. Nimmer wrote that the work injury 
 
            indeed had some impact on claimant's life.  It is held that 
 
            claimant's healing period ended when significant improvement 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            from the injury was no longer anticipated pursuant to Dr. 
 
            Supapodok's opinion based on the neurological evaluation of 
 
            September 22, 1989.  Accordingly, claimant is entitled to 
 
            healing period benefits until that date, totalling 101 
 
            weeks, 2 days.
 
            
 
                 Next, claimant's permanent disability must be 
 
            considered.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
            N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 
 
            110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Christensen v. Hagen, Inc., File No. 643434 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., 
 
            File No. 420539 (App. February 28, 1985).
 
            
 
                 Claimant asserts that he is an odd-lot employee under 
 
            the rule pronounced in Guyton v. Irving Jensen Co., 373 
 
            N.W.2d 101 (Iowa 1985).  A worker is an odd-lot employee 
 
            when a work injury makes him incapable of work in any 
 
            well-known branch of employment and when the only services 
 
            he can perform are so limited in quality, dependability or 
 
            quantity that a reasonably stable market for them does not 
 
            exist.  The only two physicians to express an opinion as to 
 
            whether claimant was totally incapacitated are Dr. Hay and 
 
            Dr. Yuhas, each of whom believed claimant capable of working 
 
            and thought that he in fact should work.  While claimant 
 
            asserts that he is unable to work due to headaches, an 
 
            inability to lift more than 25 pounds, or to push, pull or 
 
            stoop, it should be noted that these restrictions are 
 
            self-imposed.  The record fails to disclose a single 
 
            medically-imposed physical restriction.
 
            
 
                 Claimant's injury is to the body as a whole in that 
 
            some portion of claimant's psychological status is caused by 
 
            the work injury (although, obviously, much should also be 
 
            attributed to his long history of alcohol and substance 
 
            abuse) and because his continuing headaches, mood and 
 
            personality disturbance and cervical radiculopathy (which 
 
            Dr. Supapodok relates to the work injury) affect the body as 
 
            a whole, rather than scheduled members.
 
            
 
                 It will be recalled that Dr. Martino assigned a 20 
 
            percent impairment rating to the right leg by reason of 
 
            claimant's knee injury.  Although the record does not 
 
            contain medical restrictions that would directly diminish 
 
            claimant's earning capacity (in essence, the definition of 
 
            industrial disability), it would be unreasonable to assess 
 
            industrial disability in this case as less than the 
 
            scheduled member impairment (which is clearly causally 
 
            related to the work injury).  That is, the extension of an 
 
            injury into the body as a whole--a more pervasive injury-- 
 
            should not operate to diminish benefits to which claimant 
 
            would otherwise be entitled by reason of the scheduled 
 
            member impairment.  Workers' compensation is for the benefit 
 
            of the working (person) and, within reason, should be 
 
            liberally construed in favor of the worker.  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
            Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 
 
            1981).
 
            
 
                 In conjunction with claimant's other problems, 
 
            particularly his history of alcohol and substance abuse, it 
 
            seems clear that this work injury has impaired his earning 
 
            capacity.  He suffers residual cervical pain, headaches and 
 
            dizziness and has undergone a personality and mood 
 
            disturbance.  However, the lack of medically-imposed 
 
            restrictions is of great significance, in that claimant may 
 
            not reliably be trusted to prescribe his own medical 
 
            restrictions.  First, he is not a physician.  Second, his 
 
            self-interest is obvious.
 
            
 
                 Based then on these factors in particular and the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            record otherwise in general, it is held that claimant has 
 
            sustained an industrial disability equivalent to 20 percent 
 
            of the body as a whole, or 100 weeks.
 
            
 
                 At the time of his injury, claimant earned a gross 
 
            average weekly wage of $217.00, was single and entitled to 
 
            two exemptions.  A review of the Guide to Iowa Workers' 
 
            Compensation Claim Handling effective July 1, 1987 shows 
 
            that the appropriate compensation rate is $141.96.
 
            
 
                 Medical billings of The Orthopaedic Centers (exhibit 
 
            12, page 78) for right knee arthroscopy total $1,790.00, of 
 
            which $95.00 has been paid.  The record does not disclose 
 
            what party made this payment.  In any event, this is clearly 
 
            causally related to the work injury and compensable.  
 
            Defendants shall pay medical providers directly, except to 
 
            the extent paid personally by claimant.
 
            
 
                 Medical billings of Neuro Center, P.C., include two 
 
            office visits at $40.00 each and a neurological evaluation 
 
            of $90.00.  A copy fee of $25.00 is not a medical cost, 
 
            although assessable as court costs.  To the extent not 
 
            already paid by defendants, that billing is compensable.
 
            
 
                 Medical billings of the Family Medicine Center (exhibit 
 
            9, page 55) total $175.00, all for services rendered.  
 
            Defendants shall pay that billing.
 
            
 
                 Dr. Prasad's billing (exhibit 4, page 22) includes a 
 
            charge of $100.00 subsequently paid by defendants.  The 
 
            December 31, 1990 charge to claimant's attorney appears to 
 
            be for a report, not medical services under Iowa Code 
 
            section 85.27.
 
            
 
                 Charges of Neurological-Neurodiagnostic Associates 
 
            (exhibit 3, page 21) shows no balance.  However, a medical 
 
            report was billed at $25.00 and is compensable as costs.  
 
            The same is true of Associated Physicians of Fond du Lac, 
 
            Ltd., (exhibit 18, page 110) and Orthopaedics, Inc. of 
 
            Indiana (page 35).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant one hundred one 
 
            point two eight six (101.286) weeks of healing period 
 
            benefits commencing October 15, 1987 at the weekly rate of 
 
            one hundred forty-one and 96/100 dollars ($141.96), 
 
            totalling fourteen thousand three hundred seventy-eight and 
 
            56/100 dollars ($14,378.56).
 
            
 
                 Defendants shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability benefits commencing 
 
            September 23, 1989 at the weekly rate of one hundred 
 
            forty-one and 96/100 dollars ($141.96), totalling fourteen 
 
            thousand one hundred ninety-six and 00/100 dollars 
 
            ($14,196.00).
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall pay medical bills as set forth above.
 
            
 
                 The costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Craig A. Levien
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 1803.1
 
                           Filed October 23, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CEDRIC BROWN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 936538
 
                                          :
 
            CMC,                          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803; 1803.1
 
            Industrial disability was assessed (cervical radiculopathy, 
 
            depression, personality disturbance, headaches, etc.) even 
 
            in the absence of medically-imposed restrictions.
 
            In same injury, a fall, claimant suffered a leg impairment 
 
            of 20 percent.  It was held to be an impermissibly illiberal 
 
            construction of the workers' compensation law to find 
 
            industrial disability less than a concurrent scheduled 
 
            member impairment.  Extension of an injury into the body as 
 
            a whole -- a more pervasive injury  -- should not operate to 
 
            diminish the benefits to which claimant would otherwise be 
 
            entitled.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DON SANTEE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936549
 
            MAYTAG COMPANY,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Don 
 
            Santee, claimant, against Maytag Company, employer, and 
 
            Employers' Mutual Companies, insurance carrier, as 
 
            defendants.  Claimant has alleged a work-related injury 
 
            occurring on February 23, 1990.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy on February 25, 1992, at Des Moines, Iowa.
 
            
 
                 The record in this case consists of the live testimony 
 
            of Lorin Rickabaugh, Pete Owens, and Diana Rader; and, joint 
 
            exhibits A through V.  The claimant chose not to attend the 
 
            hearing.
 
            
 
                                      issues
 
            
 
                 In accordance with the prehearing report, the parties 
 
            submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on February 
 
            23, 1990, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between 
 
            claimant's injury and his current disability;
 
            
 
                 3.  Whether claimant is entitled to permanent partial 
 
            disability benefits; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            provided for under Iowa Code section 85.27.
 
            
 
                 It is noted that defendants raised the affirmative 
 
            defense that claimant's medical expenses were not 
 
            authorized.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant is 56 years of age, and graduated from high 
 
            school in 1954.  He began working as a machine operator for 
 
            defendant employer in Hampton, Iowa, from 1959 until the 
 
            plant closed in 1983.  He was transferred to the Newton, 
 
            Iowa, plant where he operated a press until he injured his 
 
            back on July 26, 1985.
 
            
 
                 After time off from work due to injury or layoff, 
 
            claimant returned to work in April of 1986 and was placed in 
 
            an inspector position in the Newton plant.  This position 
 
            required the claimant to inspect various machines by 
 
            measuring certain parts to insure proper length and width.  
 
            Parts inspected ranged from one inch to one foot in length.  
 
            He inspected up to eighteen machines per day, and each 
 
            machine contained four to eight parts which were required to 
 
            be measured and inspected.
 
            
 
                 The medical evidence reveals that claimant first 
 
            reported symptoms and sought treatment for elbow complaints 
 
            at the Maytag Company medical department on June 7, 1988 
 
            (Joint Exhibit G, page 13).  He was referred to the company 
 
            physician, Richard Moe, M.D.
 
            
 
                 The Maytag medical department notes indicate that 
 
            claimant next mentioned problems with his elbows in October 
 
            of 1988.  A diagnosis of left elbow epicondylitis was made.
 
            
 
                 During the next six months, claimant sought treatment 
 
            for a back condition, and was treated by several orthopedic 
 
            surgeons and specialists.  The next complaint regarding his 
 
            elbows appears in the company medical notes dated June 6, 
 
            1989.  Michael Makowsky, M.D., recorded that claimant stated 
 
            he was assigned to light duty work and was unable to think 
 
            of repetitive movements on the job which aggravated his 
 
            symptoms (Jt. Ex. G, p. 21).  Subsequently, claimant was 
 
            given elbow braces, which he did not find beneficial.  
 
            Claimant was not given any work restrictions specifically 
 
            related to the elbows (Jt. Ex. G, p. 22; Jt. Ex. S, pp. 12-
 
            15).
 
            
 
                 In October of 1989, claimant was put on medical leave 
 
            due to back problems.  On October 6, 1989, claimant returned 
 
            to Dr. Moe with pain in both elbows.  On November 3, 1989, 
 
            claimant returned to Dr. Moe for a re-evaluation of his back 
 
            condition, and once again voiced continuing problems with 
 
            his right elbow.  After this visit, Dr. Moe visited the 
 
            plant to observe claimant's position as an inspector, and 
 
            based upon the visit was of the opinion that claimant's job 
 
            duties would not result in epicondylar irritation (Jt. Ex. 
 
            I, p. 6).
 
            
 
                 In February of 1990, while claimant was receiving 
 
            treatment from Mark Brodersen, M.D., for his back condition, 
 
            he mentioned elbow pain.  Dr. Brodersen prescribed 
 
            phonophoresis treatment, although claimant did not receive 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            these treatments (Jt. Ex. H, p. 12); Jt. Ex. S, p. 21).
 
            
 
                 In March of 1990, claimant did receive ultrasound 
 
            treatments at the Marshalltown Medical and Surgical Center 
 
            but chose to stop the treatments due to increased pain (Jt. 
 
            Ex. J, p. 102; Jt. Ex. K, p. 1).
 
            
 
                 In April of 1990, claimant returned to Dr. Brodersen 
 
            who again recommended ultrasound treatment but was of the 
 
            opinion that claimant's epicondylitis was not work related 
 
            (Jt. Ex. H, p. 15).
 
            
 
                 In May of 1990, claimant sought treatment from the Mayo 
 
            Clinic of Rochester, Minnesota.  Upon examination, claimant 
 
            showed a full range of motion of both elbows and wrists.  
 
            The physician noted tenderness at both the lateral 
 
            epicondyle on the right side, and medial epicondyle 
 
            tenderness at the left elbow.  The physician recommended an 
 
            EMG (which showed no evidence of median or radial nerve 
 
            compression), and evaluation.  The evaluation, dated August 
 
            13, 1990, stated that claimant had seen an improvement in 
 
            his symptoms since he had stopped working four months ago 
 
            (Jt. Ex. K, p. 8).  The examination revealed tenderness at 
 
            the right lateral epicondyle, and over the left medial 
 
            epicondyle.  Results from x-rays were normal, and claimant 
 
            was placed in a splint and supplied with Feldene.  It was 
 
            recommended that claimant continue with normal activities 
 
            within the limits of his pain, and if his condition worsened 
 
            he was to consider cortisone injections.  Claimant was given 
 
            a 2 percent  permanent partial impairment of the body for 
 
            each elbow (Jt. Ex. K, p. 9-12).
 
            
 
                 In June of 1991, claimant returned to his family 
 
            physician, Michael F. Miriovsky, M.D., who provided claimant 
 
            with his first cortisone injection (Jt. Ex. L, p. 2).
 
            
 
                 In January of 1992, claimant received another injection 
 
            from Jitu D. Kothari, M.D.
 
            
 
                 In February of 1992, Dr. Moe summarized claimant's care 
 
            and treatment with respect to his elbows, and concluded that 
 
            claimant's condition was not work related (Jt. Ex. I, pp. 5-
 
            6).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on February 23, 1990, which arose out of 
 
            and in the course of his employment.
 
            
 
                 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).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 23, 
 
            1990, 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). 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 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.
 
            
 
                 "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, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Prior to February 20, 1990, claimant had held a 
 
            position as inspector of various parts for approximately six 
 
            years.  According to Pete Owens, claimant's supervisor for 
 
            the past six years, claimant never asked for relief from 
 
            duties due to arm and/or elbow problems.  Owens admitted 
 
            that claimant voiced complaints to him of arm and elbow 
 
            pain.
 
            
 
                 Lorin Rickabaugh, another supervisor, indicated that he 
 
            saw claimant wearing arm braces but did not have any 
 
            conversations with claimant concerning the braces.  
 
            Rickabaugh indicated that claimant's job required him to use 
 
            his hands and arms constantly but that claimant was afforded 
 
            some breaks while on the job.
 
            
 
                 Claimant failed to appear for the hearing, and it is 
 
            difficult to obtain a complete understanding of the job 
 
            requirements.  The evidence suggests that claimant was at 
 
            the time and place required by his job assignment.  Claimant 
 
            held his position as inspector for approximately six years 
 
            and apparently performed his job duties as required by the 
 
            company.
 
            
 
                 However, claimant has failed to prove by a 
 
            preponderance of the evidence that his condition was caused 
 
            by work activities.
 
            
 
                 Most notably, Dr. Moe, once a company physician but who 
 
            currently practices in Scottsdale, Arizona, visited the 
 
            plant to observe claimant's assigned duties.  Dr. Moe's 
 
            opinion was that "this set of duties should not result in 
 
            epichondylar irritation." (Jt. Ex. I, p. 6).
 
            
 
                 Additionally, the evidence supports a finding that 
 
            claimant left work due to his plans for retirement as 
 
            opposed to an inability to complete his job duties due to 
 
            arm and elbow pain and impairment.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 As a result, claimant takes nothing from these 
 
            proceedings.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
                 That each party shall be assessed its own costs, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr David L Jenkins
 
            Mr Cecil L Goettsch
 
            Attorneys at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309-2727
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1100
 
                                               Filed April 23, 1992
 
                                               Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DON SANTEE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 936549
 
            MAYTAG COMPANY,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to appear for the hearing, and failed to 
 
            establish by a preponderance of the evidence that his 
 
            epicondylitis was caused by work activities.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD J. WARD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 936555
 
            SOUTHERN IOWA ECONOMIC        :
 
            DEVELOPMENT ASSOCIATION and   :      A R B I T R A T I O N
 
            AREA XV MULTI-COUNTY HOUSING  :
 
            AGENCY,                       :         D E C I S I O N
 
                                          :
 
                 Employers,               :
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            CO., and ALLIED MUTUAL        :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Donald J. Ward seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            asserting a work injury on June 19, 1989.  He asserts that 
 
            Southern Iowa Economic Development Association (insured by 
 
            Aetna Casualty & Surety Company) and/or Area XV Multi-County 
 
            Housing Agency (insured by Allied Mutual Insurance Company) 
 
            were employers, either jointly or in the alternative.  
 
            Southern Iowa Economic Development Association (SIEDA) 
 
            administered a "Workfare" Program in which Mr. Ward was 
 
            allegedly participating at the time of his injury.  Area XV 
 
            Multi-County Housing Agency (Area XV) is claimant's landlord 
 
            and provided the work site where claimant performed services 
 
            under the Workfare Program.
 
            
 
                 This cause came on for hearing in Ottumwa, Iowa, on 
 
            December 16, 1991.  Received into evidence were joint 
 
            exhibits 1 through 36, claimant's exhibit 37 and defendants' 
 
            exhibits A through U, inclusive.  Claimant and his wife, 
 
            Suzy Mae Ward, testified at hearing.  Deposition testimony 
 
            was received from claimant, Phyllis Runnels, Larry Shepard, 
 
            Larry Harvey, Kenny Reynolds, Matthew A. Manning, D.O., and 
 
            Donald D. Berg, M.D.
 
            
 
                                      issues
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether an employment relationship existed between 
 
            claimant and either alleged employer at the time of the 
 
            claimed injury;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 2.  Whether claimant sustained an injury on June 19, 
 
            1989, arising out of and in the course of employment;
 
            
 
                 3.  Whether the alleged injury caused either temporary 
 
            or permanent disability;
 
            
 
                 4.  The extent of temporary and total disability;
 
            
 
                 5.  The rate of compensation; and,
 
            
 
                 6.  Whether either defendant is entitled to credit 
 
            under Iowa Code section 85.38(2) for continuing welfare 
 
            benefits paid to claimant's family.
 
            
 
                 In its post-hearing brief, SIEDA conceded that it no 
 
            longer posed as a defense that no employment relationship 
 
            existed, thus resolving the first issue in claimant's favor 
 
            with respect to that defendant.
 
            
 
                 Even though claimant does not seek compensation for 
 
            medical benefits, the parties request that the agency 
 
            determine whether those medical costs set forth in exhibit 
 
            37 are causally related to the claimed injury, apparently 
 
            for the purpose of determining certain subrogation rights.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Donald J. Ward, 37 years of age at hearing, completed 
 
            the eighth grade but left school to "bum around" while in 
 
            ninth grade.  His only further education was a course of 
 
            instruction in automotive mechanics completed in the Arizona 
 
            State Prison during a period of incarceration in 
 
            approximately 1976 to 1978.
 
            
 
                 Mr. Ward has by history not been a productive citizen.  
 
            He has worked intermittently as a maintenance worker, cotton 
 
            picker, coal miner and flagman in road construction.  The 
 
            only steady job he has ever held was that of maintenance 
 
            worker for the City of Weir, Kansas, in the year following 
 
            his release from prison (on a burglary conviction).  Holding 
 
            that job was a condition of parole.  From approximately 1978 
 
            to 1982, claimant concedes he had no steady work, but 
 
            asserts that he did odd jobs and a little farming (none of 
 
            which were disclosed in his answers to interrogatories).  
 
            Occasionally, he helped his brother work on cars as a shade 
 
            tree mechanic, perhaps earning $15 or $20.  How claimant 
 
            supported himself during this time is unclear.  It seems not 
 
            unreasonable to wonder whether all of his income was 
 
            legitimately earned by sweat of brow.
 
            
 
                 In any event, in 1982 claimant became eligible through 
 
            marriage to share the Aid for Dependent Children (AFDC) 
 
            grant in the name of his wife Suzy.  The family has 
 
            continued to claim benefits from that date to this, although 
 
            Suzy is now working and only draws AFDC benefits in months 
 
            in which her wages fail to equal benefit entitlement.  From 
 
            1982 through 1989, Mr. Ward was required to make eight job 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            seeking contacts a month, but has only been able to obtain 
 
            work briefly in hotel maintenance and road construction.  
 
            Claimant also worked for five days in August 1989 as a car 
 
            washer for an automobile dealership, but was discharged when 
 
            the dealership learned he was ineligible to drive because of 
 
            multiple drunken driving convictions.  While those 
 
            convictions do not directly pertain to credibility, neither 
 
            are they indicia of good citizenship.
 
            
 
                 Beginning in 1983, claimant was required by the Iowa 
 
            Department of Human Services to participate in a "Workfare" 
 
            Program as a condition of family eligibility for AFDC 
 
            benefits.  Under this program, certain able-bodied AFDC 
 
            recipients ("unemployed fathers" and others with no 
 
            preschool children at home) were required to work at 
 
            assigned work sites to "work off" welfare benefits.  
 
            Participants were paid no wage and were required to work as 
 
            a benefit condition only when a willing job site was 
 
            available.  The amount of a family's AFDC grant bore no 
 
            relationship to the hours worked, except that no participant 
 
            could be required to work hours in excess of the monthly 
 
            benefit amount divided by the minimum wage.  Participants 
 
            were required to continue making job search contacts at all 
 
            times.  The work site was required by contract to treat 
 
            Workfare participants under the same conditions as regular 
 
            employees and paid a nominal fee (approximately $.50 per 
 
            hour) to SIEDA to help cover administrative expenses.
 
            
 
                 SIEDA made extensive efforts (every job site in Van 
 
            Buren County) to place claimant in a willing work site, but 
 
            eventually concluded that he was unplaceable due to his poor 
 
            reputation in the area.  However, one work site provider was 
 
            Area XV, an operator of low-rent housing projects, including 
 
            a group of six duplexes in which the Ward family resided.  
 
            Area XV agreed to accept claimant on the basis of a few 
 
            hours per week to be spent mowing, cleaning and painting 
 
            vacant units and some simple repair and carpentry work.  
 
            Claimant did not work regular hours, but was assigned 
 
            specific jobs upon the initiation of Kenny Reynolds, Area XV 
 
            maintenance supervisor.  Mr. Ward continued his Workfare 
 
            Program participation through and beyond the alleged date of 
 
            injury, June 19, 1989.
 
            
 
                 Claimant's emotional condition in the months prior to 
 
            June 19 were charted by family doctor Stephen Sparks, M.D., 
 
            as "malaise" on January 21, 1989:
 
            
 
                 Pt reports due to sleeping all the time, lacks 
 
                 motivation for anything except to win the lottery 
 
                 -- wants more money but doesn't want to go through 
 
                 the trouble of job hunting, . . .
 
            
 
            (Defendants' exhibit 1, page 14)
 
            
 
                 At 9:20 p.m. (recorded "2120"), claimant presented to 
 
            the emergency room of the Van Buren County Memorial Hospital 
 
            with complaints of low back pain with some earlier radiation 
 
            to the legs following a reported fall down stairs.  Claimant 
 
            was seen in the emergency room by Matthew Manning, D.O., a 
 
            practitioner in internal medicine and family practice.  Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Manning noted tenderness over lower back muscles and spinous 
 
            processes with diminished range of motion.  Plain film 
 
            x-rays of the lumbar spine were normal.  Dr. Manning further 
 
            noted that single leg raising was "equivocal" at 90 degrees.  
 
            The doctor testified that by "equivocal," he meant that the 
 
            potential of herniated disc with nerve root impingement was 
 
            less significant at 90 degrees as opposed to, for example, 
 
            60 degrees, because 90 degrees is normal.  A pain medication 
 
            was prescribed and claimant was released.
 
            
 
                 Mr. Ward did not seek further medical attention until 
 
            September 1989, when he again saw Dr. Manning.  Dr. Manning, 
 
            incidentally, had seen him on several occasions in 1988.  
 
            One of his nurses noted on June 25, 1988, that claimant 
 
            telephoned with complaints of a backache, characterized as a 
 
            "chronic problem," and requesting a narcotic pain killer 
 
            (without success).  Claimant now denies a history of chronic 
 
            back complaints but concedes he was seen on May 3, 1988, by 
 
            Dr. Sparks for complaints of low back pain.  Dr. Sparks' 
 
            chart notes indicate claimant had been seen in an 
 
            unidentified emergency room Sunday (by a standard calendar, 
 
            presumably May 1) and been treated with anti-inflammatories 
 
            and heat.
 
            
 
                 According to claimant, he suffered his fall after 
 
            shampooing the carpet in apartment 3-B, the other half of 
 
            his own duplex unit.  He says that he was trying to maneuver 
 
            his own shampooer down a flight of stairs when he fell at 
 
            approximately 2:30 p.m.  Suzy Ward, age 33, testified that 
 
            she heard a loud noise while claimant was shampooing 
 
            apartment 3-B, and that she immediately ran over and found 
 
            claimant on the floor at the bottom of the stairs.  She 
 
            indicated that Mr. Ward was taken to the hospital almost 
 
            immediately and alleges that the hospital records of 
 
            admission time are incorrect.
 
            
 
                 At the time of his deposition testimony on May 29, 
 
            1991, claimant testified as follows relative his assigned 
 
            Workfare duties through the summer:
 
            
 
                 Q.  Did you continue to work through that summer, 
 
                 July and August, either doing work for Area XV or 
 
                 anyone else?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Did you have any problems in doing your work, 
 
                 physical problems?
 
            
 
                 A.  Oh, yeah.  I mean, I can't -- I couldn't bend 
 
                 over like I did, but I did the work.
 
            
 
            (Donald Ward deposition, page 40, lines 8 through 15)
 
            
 
                 However, in his trial testimony, claimant testified 
 
            that Suzy actually did the work (and his daughter did the 
 
            mowing) for the next three months.  According to Suzy, he 
 
            tried to do work during those months, but she helped.  For 
 
            example, when painting a wall, he would paint the lower part 
 
            while she would paint the higher portion.  However, claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            testified to the contrary in his deposition:
 
            
 
                 Q.  Did you continue with painting and cleaning 
 
                 projects?
 
            
 
                 A.  I never painted again up there.  After I had 
 
                 my injury, I never painted again.  I know that.
 
            
 
            (Donald Ward deposition, page 71, lines 11 through 14)
 
            
 
                 Claimant normally spoke to Kenny Reynolds by telephone 
 
            almost every day, and in person perhaps once a week.  Within 
 
            a day or so of his fall, he so advised Reynolds, but neither 
 
            man appeared to treat the incident as significant.  Reynolds 
 
            was never advised that Suzy and claimant's daughter were 
 
            supposedly doing his work for him as symptoms allegedly 
 
            increased gradually over the next months.  It does not 
 
            strike this observer as consistent with claimant's past 
 
            history to hide a work-related disability out of a presumed 
 
            zeal to perform Workfare duties for which he was not 
 
            compensated (if he were unable to work, there would be no 
 
            impact whatsoever on AFDC benefits).
 
            
 
                 It was Reynolds' responsibility to initiate work 
 
            assignments by directly ordering claimant to perform 
 
            specific duties.  Normal procedure, which claimant maintains 
 
            was not followed in this instance, would be to specifically 
 
            order claimant to shampoo the carpet in a vacant unit and 
 
            deliver to him the Rug Doctor carpet machine owned by SIEDA 
 
            and used for that purpose.  Why claimant would have taken it 
 
            upon himself in this one instance to shampoo a carpet with 
 
            his own machine remains unclear.
 
            
 
                 Reynolds was also responsible for recording claimant's 
 
            reported hours, which he normally did immediately after 
 
            being informed.  Claimant did not report having worked any 
 
            hours on Monday, June 19, and none were recorded.  Claimant 
 
            did report working 3.5 hours on June 20 and 2 hours on June 
 
            23.  Reynolds recorded 5.5 hours in each of the next two 
 
            weeks, 7 hours in each of the two weeks thereafter, 5 hours 
 
            in the week ending August 5, 7 hours the next week, 4 hours 
 
            the next week and 5 hours during the week ending September 
 
            2.  During all this time, Reynolds was never advised that 
 
            claimant's wife and daughter were "covering" for him.
 
            
 
                 On August 14, 1989, claimant made a job search contact 
 
            at Bloomfield Ford Mercury and was hired to start the 
 
            following day.  A question on the preemployment 
 
            questionnaire inquiring whether he had any physical or 
 
            mental impairments which would interfere with his ability to 
 
            perform the job, was answered in the negative.  Similarly, 
 
            it is inconsistent with claimant's past history of 
 
            motivation to disguise physical impairment out of driving 
 
            ambition to work.
 
            
 
                 As previously noted, claimant was terminated on August 
 
            22 when Bloomfield Ford discovered that he would be unable 
 
            to obtain an operator's license.  In his deposition 
 
            testimony, claimant indicated that work at the car 
 
            dealership basically did not exacerbate symptoms, although 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            he still had trouble bending.  He did not believe his 
 
            condition was worse at the time he was discharged.  However, 
 
            Suzy testified that during only five days of employment, she 
 
            had to pick him up at noon on two days because of back pain.  
 
            The discrepancy remains unexplained.
 
            
 
                 After claimant's job with Bloomfield Ford Mercury 
 
            ended, there came a dramatic change in his condition:
 
            
 
                 A.  September 11 is when I went to the hospital.  
 
                 It happened a couple of days before that, but I 
 
                 just thought -- I didn't know what it was.  It got 
 
                 to the point of the pain, so then I went to the 
 
                 hospital.
 
            
 
            (Donald Ward deposition, page 39, lines 20 through 24)
 
            
 
                 Claimant was seen again by Dr. Manning at Van Buren 
 
            County Memorial Hospital on September 11 with complaints of 
 
            severe low back pain and right leg pain.  Straight leg 
 
            raising was now positive at 30 degrees on the right and 
 
            contralateral (raising one leg causes pain in the other) on 
 
            the left at 60 degrees.  A CT scan was ordered and showed a 
 
            herniated disc at L4-5.
 
            
 
                 Since then, claimant's two treating physicians have 
 
            been Dr. Manning and Donald D. Berg, M.D.  Dr. Berg is a 
 
            board-certified orthopaedic surgeon.  Both physicians have 
 
            continued to recommend surgery for relief of symptoms, but 
 
            have been refused due to claimant's anxiety about undergoing 
 
            back surgery.  Surgery was in fact twice scheduled and twice 
 
            cancelled, once at very nearly the literal last minute.  As 
 
            a result, claimant remains under rather extensive medical 
 
            restrictions.  Both physicians causally relate claimant's 
 
            disability to the fall on June 19.  Both opinions assume 
 
            symptoms commencing on that date with gradual or 
 
            intermittent worsening for three months prior to the 
 
            September hospitalization.  This history is not supported by 
 
            the evidence, though.
 
            
 
                 It is noted that there exists a direct conflict between 
 
            the testimony of claimant and that of Kenny Reynolds.   
 
            Claimant testified:
 
            
 
                 Q.  How would you report the amount of time that 
 
                 you --
 
            
 
                 A.  Kenny --
 
            
 
                 Q.  -- spent on a job?
 
            
 
                 A.  Kenny would call me and I would tell him.
 
            
 
                 Q.  Would you tell him specifically the day that 
 
                 your worked?
 
            
 
                 A.  He would call -- Before I did anything up 
 
                 there at the apartments -- I got the approval from 
 
                 Kenny before I done anything, other than mowing.  
 
                 Cause you just mowed every other week, so I mowed.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 But anything else I would get the prior approval 
 
                 -- I would get approval from him before I would do 
 
                 it.
 
            
 
                 Q.  Let's say Kenny called you one night and said 
 
                 mow tomorrow.
 
            
 
                 A.  I would go mow.
 
            
 
                 Q.  And after you mowed, would you talk to Kenny 
 
                 and say it took me three hours to mow or would you 
 
                 tell him I mowed from nine to noon?
 
            
 
                 A.  He would just write down what he thought it 
 
                 would take me to do it.
 
            
 
                 Q.  Did you ever report back your actual hours 
 
                 worked?
 
            
 
                 A.  No.  He would -- Kenny took care of it.  I 
 
                 never had nothing to do with my hours.
 
            
 
            (Donald Ward deposition, page 69, line 6 through page 70, 
 
            line 6)
 
            
 
                 Reynolds, on the other hand, reported:
 
            
 
                 Q.  It's my understanding that Mr. Ward would call 
 
                 back to you on a set day, either a Friday or a 
 
                 Monday, to report the hours that he worked in a 
 
                 week?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Did you take any steps to confirm the number 
 
                 of hours that he was reporting to you?
 
            
 
                 A.  No.  That would have been almost impossible to 
 
                 do.
 
            
 
                 Q.  And I understand that you were required to 
 
                 fill in a time sheet or time card in regard to the 
 
                 hours worked by Mr. Ward?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Did you do that as you and Mr. Ward talked on 
 
                 the phone each week?
 
            
 
                 A.  Well, I don't know that I did it while he was 
 
                 on the phone.  I -- he would just tell me how many 
 
                 hours that he worked on a given day or days and 
 
                 I'd record that on the time sheet.
 
            
 
                 Q.  Shortly thereafter?
 
            
 
                 A.  Oh, yes.
 
            
 
                 Q.  Or the same day?
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 A.  Oh, yeah, I had to right away or I'd probably 
 
                 forgot about it.
 
            
 
                 Q.  You relied on Mr. Ward for both the days 
 
                 worked and the hours worked?
 
            
 
                 A.  Yes, I did.
 
            
 
            (Kenny Reynolds deposition, page 14, line 15 through page 
 
            15, line 15)
 
            
 
                 This point is significant because time records show 
 
            that claimant did not work on June 19, when he was 
 
            supposedly injured at work, and that he did work many hours 
 
            in the next three months when he (now) claims he could not 
 
            work.  Mr. Reynolds is not interested in this litigation.  
 
            His version is much more believable than is claimant's.
 
            
 
                 Another aspect of claimant's quoted testimony is 
 
            revealing.  That is the requirement of prior approval for 
 
            anything other than weekly mowing.  Although inconsistent 
 
            with the assertion that claimant fell after shampooing a 
 
            carpet with his own machine, the testimony in this instance 
 
            is consistent with that of Reynolds:
 
            
 
                 Q.  Would you take me through step by step the 
 
                 procedure that you would use with Donald Ward if 
 
                 you were going to request him to shampoo carpet, 
 
                 including your telephone calls and the 
 
                 transportation of equipment?
 
            
 
                 A.  I'm not sure I understand what you want me to 
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 do here.  You want me to----
 
            
 
                 Q.  Let's assume that you have an apartment that 
 
                 needs cleaning in Keosauqua while Donald Ward was 
 
                 working down there.
 
            
 
                 A.  Yes.
 
            
 
                 Q.  As I understand, the first thing that would 
 
                 happen is you would give Donald a call----
 
            
 
                 A.  I see.
 
            
 
                 Q.  --and say I have to have such and such an 
 
                 apartment shampooed.
 
            
 
                 A.  Uh-huh.
 
            
 
                 Q.  Take me from there on the procedure.
 
            
 
                 A.  I would probably tell him that we'll deliver 
 
                 the Rug Doctor at a certain time on a certain day 
 
                 and it was to be used on this apartment, let me 
 
                 know when you're done.
 
            
 
                 Q.  Area XV Housing owns all the equipment that's 
 
                 necessary to do a carpet cleaning job?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And that's the equipment that is used in the 
 
                 practice of Area XV to clean carpets?
 
            
 
                 A.  Yes.
 
            
 
            (Kenny Reynolds deposition, page 44, line 4 through page 45, 
 
            line 4)
 
            
 
                 For all these reasons, the finder of fact is 
 
            unpersuaded that Donald Ward was engaged in work activities 
 
            on behalf of SIEDA or Area XV on June 19, 1989.  Neither is 
 
            he persuaded that the minor incident of this date caused the 
 
            herniation diagnosed three months later and after an 
 
            unspecified "acute exacerbation" as later reported to the 
 
            University of Iowa Hospitals and Clinics.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 19, 1989, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 He also has the burden of proving by a preponderance of 
 
            the evidence that the injury of June 19, 1989, 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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 
 
            101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 This burden of proof has not been met.  For claimant to 
 
            recover, he must establish that the incident for which he 
 
            sought emergency room care on June 19 arose out of and in 
 
            the course of employment, and that the incident itself bears 
 
            a causal nexus to the disc herniation at L4-5 diagnosed by 
 
            CT scan some three months later.
 
            
 
                 The injury occurred in claimant's duplex with claimant 
 
            and his wife the only witnesses.  Claimant, a convicted 
 
            burglar, lacks credibility.  Suzy's testimony is consistent 
 
            with his on this point, at least, but it is noted that she 
 
            is also interested in the litigation as claimant's spouse.  
 
            Other testimony is inconsistent with claimant's version of 
 
            events.
 
            
 
                 There are many surrounding facts that cast suspicion on 
 
            claimant's assertions.  He normally did not initiate any 
 
            work assignments, but responded to orders from Kenny 
 
            Reynolds.  Had he done so in the present instance, standard 
 
            procedure called for Reynolds to arrange delivery of the 
 
            carpet machine owned by Area XV (which operated a number of 
 
            geographically scattered rental units).  The hospital record 
 
            of admission is accepted over Suzy Ward's testimony that it 
 
            was wrongly recorded.  The time itself, 9:20 p.m., is 
 
            significant in that claimant might well not be expected to 
 
            be on the job that late in the evening.  Reynolds did not 
 
            record that claimant worked any hours on June 19.  However, 
 
            he recorded hours on the next day and many others, even 
 
            though claimant now says his wife and daughter covered for 
 
            him by performing duties.  Given the totality of the record, 
 
            it is hard to believe that claimant would never complain to 
 
            Reynolds of a disability so serious that this subterfuge was 
 
            required.  The family could even have done better 
 
            financially had Reynolds known that the daughter was doing 
 
            the mowing, since after the disc herniation was diagnosed in 
 
            September she was paid directly for doing the same work.  In 
 
            August, claimant applied for a job with no indication that 
 
            he had a physical impairment and worked five days, 
 
            apparently without trouble (according to his testimony, but 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            not according to Suzy's).  An acute exacerbation of unknown 
 
            origin sent claimant back to the hospital in September, 
 
            where an undoubted disc herniation was discovered.  Straight 
 
            leg raising was now clearly positive, as opposed to 
 
            "equivocal" at a normal 90 degrees on June 19.
 
            
 
                 Claimant's case fairly smacks of an effort to convert a 
 
            personal misfortune into a lifetime source of income.  He 
 
            claims that he is permanently and totally disabled.  He 
 
            asserts that his rate of compensation should be calculated 
 
            under Iowa Code section 85.36(4) as "an employee who is paid 
 
            on a monthly pay period basis."  He further asserts that the 
 
            entire family AFDC benefit, a $25.00 monthly transportation 
 
            expense allowance and even the value of Title 19 health care 
 
            constitute a monthly salary, thus yielding a weekly 
 
            compensation rate very probably greater than he has ever 
 
            earned through employment.  This assertion must be quickly 
 
            relegated to the "Creative Moonshot - Failed" subdivision of 
 
            legal argument.  Rather, rate would necessarily be 
 
            calculated under section 85.36(10) as an employee who "earns 
 
            either no wages or . . ."  As such, his rate would be 
 
            one-fiftieth of the total earnings "earned from all 
 
            employment" during the twelve calendar months immediately 
 
            preceding the injury.  Claimant had no earnings from either 
 
            SIEDA or Area XV; he was literally paid no wages.  Based on 
 
            W-2 statements of record, claimant's total earnings from 
 
            employment during the twelve months prior to his injury were 
 
            $102.38 from Alfonso Construction Company, Inc., as a 
 
            flagman.  A W-2 from Bloomfield Ford Mercury reflects wages 
 
            earned after the alleged injury.  A W-2 from Pioneer Hybrid 
 
            International, Inc., reflects wages actually earned by 
 
            claimant's daughter but recorded in his name because of her 
 
            juvenile status.  "Weekly earnings" of $2.05 ($102.38 
 
            divided by 50) yield an actual rate of $1.85 per week.  
 
            Although it is not necessary to decide the proper rate where 
 
            liability is not proven, this theory serves as an example of 
 
            overreaching consistent with the cause in general.
 
            
 
                 Given this resolution, all other issues are rendered 
 
            moot.
 
            
 
                           
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 Costs are assessed to claimant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis W. Emanuel
 
            Attorney at Law
 
            112 North Court
 
            P.O. Box 601
 
            Ottumwa, Iowa  52501
 
            
 
            Mr. E. J. Kelly
 
            Ms. M. Anne McAtee
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Timothy C. Hogan
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.30
 
                                               Filed March 26, 1992
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD J. WARD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 936555
 
            SOUTHERN IOWA ECONOMIC        :
 
            DEVELOPMENT ASSOCIATION and   :      A R B I T R A T I O N
 
            AREA XV MULTI-COUNTY HOUSING  :
 
            AGENCY,                       :         D E C I S I O N
 
                                          :
 
                 Employers,               :
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            CO., and ALLIED MUTUAL        :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Claimant failed to prove he suffered an injury arising out 
 
            of and in the course of employment.