BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PAMELA THOMPSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 939777
 
            OFFICE SERVICES, INC.,        :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon a petition in 
 
            review-reopening filed October 21, 1991 by claimant Pamela 
 
            Thompson against her former employer, Office Services, Inc., 
 
            and its insurance carrier, Allied Group.
 
            
 
                 Ms. Thompson filed her first petition in arbitration on 
 
            June 8, 1990.  A hearing assignment order dated January 18, 
 
            1991 scheduled the cause for hearing on June 17, 1991.  
 
            Issues of entitlment to permanent partial disability 
 
            benefits, penalty benefits and medical benefits, among 
 
            others, were preserved for hearing.  On June 14, claimant 
 
            filed a "Dismissal of Permanency Claim" purporting to 
 
            dismiss her claim for permanency benefits.  On June 17, the 
 
            hearing deputy approved the dismissal over defendants' 
 
            objection by entering the following notation:  "Allowed 
 
            6-17-91 without assessing any costs."
 
            
 
                 The deputy also approved the prehearing report filed by 
 
            the parties at trial.  In the report, entitlement to medical 
 
            benefits was presented as a disputed issue.  Entitlement to 
 
            permanent partial disability benefits was not presented, as 
 
            it had been dismissed.  Paragraph 11, relating to bifurcated 
 
            claims, specified that "N/A" issues had been bifurcated.  
 
            Entitlement to penalty benefits under Iowa Code section 
 
            86.13 was not presented as a disputed issue.
 
            
 
                 The subsequent arbitration decision file June 25, 1991, 
 
            recorded that "claimant withdrew the permanency issue which 
 
            the undersigned allowed."  The decision declined to consider 
 
            entitlement to medical benefits for any treatment subsequent 
 
            to July 12, 1990 (by stipulation, the end of healing period 
 
            or temporary total disability) on the grounds that such 
 
            benefits related to permanency.  The decision was not 
 
            appealed.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 Claimant filed a new petition, this time in 
 
            review-reopening and for medical benefits, on October 21, 
 
            1991.
 
            
 
                 A hearing on that petition in was accordingly held in 
 
            Des Moines, Iowa on September 13, 1993.  Joint exhibits A-G 
 
            and claimant's exhibit 1 were received into evidence.  
 
            Claimant, now represented by other counsel, was the only 
 
            witness at hearing, although her deposition and those of 
 
            Drs. William Boulden and Stuart Randy Winston are exhibits.
 
            
 
                                      ISSUES
 
            
 
                 The parties stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on April 30, 
 
                    1990;
 
            
 
                    2.  The injury caused temporary disability;
 
            
 
                    3.  Permanent disability, if any, should be 
 
                    compensated industrially;
 
            
 
                    4.  The rate of compensation is $182.39 per 
 
                    week;
 
            
 
                    5.  Except for Drs. Van Natta and Larson, 
 
                    the cost of medical treatment is fair and 
 
                    reasonable and all medical expenses are 
 
                    causally connected to the condition upon 
 
                    which this claim is based; and,
 
            
 
                    6.  Defendants voluntarily paid benefits 
 
                    prior to hearing, as ordered by the original 
 
                    arbitration decision.
 
            
 
            Issues presented for resolution include:
 
            
 
                    1.  Whether claimant is entitled to healing 
 
                    period or temporary total disability 
 
                    benefits from October 9 through October 30, 
 
                    1992;
 
            
 
                    2.  Whether the injury caused permanent 
 
                    disability;
 
            
 
                    3.  The extent of industrial disability;
 
            
 
                    4.  Entitlement to medical benefits;
 
            
 
                    5.  Whether claimant sustained a change in 
 
                    condition sufficient to support an award on 
 
                    review-reopening;
 
            
 
                    6.  Whether a penalty should be assessed for 
 
                    failure to pay temporary total disability 
 
                    benefits from April 30, 1990 through July 
 
                    12, 1990; and,
 
            
 

 
            
 
            Page   3
 
            
 
            
 
                    7.  Whether the claim for permanency 
 
                    benefits is barred by theories of issue 
 
                    preclusion or res judicata.
 
            
 
                 This case comes on for consideration in a uniquely 
 
            unusual posture.  In order to determine what issues are 
 
            properly presented, it is necessary to determine the legal 
 
            effect of the partial dismissal.  Under Iowa Rule of Civil 
 
            Procedure 215, a party may dismiss its own petition until 
 
            ten days before trial, but thereafter only with consent of 
 
            the presiding {deputy}.  The hearing deputy approved the 
 
            partial dismissal while simultaneously entering an order 
 
            approving the prehearing report: which showed that no claims 
 
            had been bifurcated.  Yet, any dismissal under rule 215 is 
 
            without prejudice unless otherwise stated.  
 
            
 
                 At hearing, the undersigned ruled that claimant's 
 
            current petition should properly be considered in 
 
            arbitration, not review-reopening.  Since the extent of 
 
            claimant's permanent disability, if any, has never been 
 
            determined, it is impossible to measure a "change in 
 
            condition" as is required in review-reopening.  Instead, 
 
            this decision treats the prior dismissal as a form of 
 
            constructive bifurcation, since it seems a fair inference 
 
            that the approval did not intend to permanently foreclose 
 
            claimant from litigating the permanency issue.  Therefore, 
 
            under rule 215, the dismissal is without prejudice.  This 
 
            case will be treated then as a "supplemental" proceeding in 
 
            arbitration, notwithstanding that permanency was not 
 
            specifically bifurcated.
 
            
 
                 It was also ruled at hearing that penalty benefits 
 
            under section 86.13 were not properly presented.  As noted, 
 
            the issue had been preserved for the first arbitration 
 
            hearing, but was not presented.  Neither was it bifurcated.  
 
            Upon an informal application for penalty benefits after the 
 
            decision had been filed, the first deputy entered an order 
 
            noting that the issues decided were those the parties 
 
            ultimately agreed should be decided, and refused to modify 
 
            the arbitration decision.  The penalty issue as applied to 
 
            temporary total disability in 1990 is waived.
 
            
 
                 The issue of medical benefits is more problematic.  
 
            Entitlement to medical benefits was properly presented as an 
 
            issue in the first hearing.  The first deputy declined to 
 
            consider the medical expenses accrued subsequent to July 12, 
 
            1990, but did not bifurcate the issue.  If that was error, 
 
            it has become the law of this case through lack of a timely 
 
            appeal.  This decision will address entitlement to medical 
 
            expenses accrued only after June 17, 1991, the date of the 
 
            first hearing.  Since claimant has been found to have 
 
            sustained injury arising out of and in the course of 
 
            employment, she is entitled to life-long medical care if it 
 
            is reasonable, necessary and causally related to the 
 
            original injury.  This is so whether or not the injury 
 
            caused permanent disability.  Medical care between July 12, 
 
            1990 and June 17, 1991 has already been presented to the 
 
            agency, although no ruling was made.  Entitlement to 
 
            benefits during that time span was not bifurcated and the 
 
            issue is now res judicata.  Unlike the permanency issue, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            entitlement to medical benefits is not properly subject to a 
 
            "constructive bifurcation" theory.  The issue was not 
 
            bifurcated and was not dismissed. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Pamela Thompson was 44 years of age at the time of 
 
            hearing.  Her educational background and pre-injury work 
 
            history are unknown.  Claimant worked as a salesperson for 
 
            Office Services, Inc., for a short time before being 
 
            discharged on April 30, 1990.  Shortly after being 
 
            discharged, claimant suffered injury in a slip and fall.  
 
            The first arbitration decision concluded that the injury 
 
            arose out of and in the course of employment.
 
            
 
                 Since the injury, claimant has been employed by several 
 
            firms in marketing positions.  This includes sales of 
 
            Chamber of Commerce directory advertisements and sales for a 
 
            direct mail coupon distributor, whereby claimant's business 
 
            customers would issue coupons direct mail sales stuffers.  
 
            In her deposition testimony of September 2, 1993, claimant 
 
            reported earnings of approximately $32,000.00 during 
 
            calendar year 1992, a considerable increase over her 
 
            earnings during the short tenure with Office Services, Inc. 
 
            (stipulated gross weekly earnings of $285.00 extrapolate to 
 
            annual earnings of under $15,000.00).  Medical restrictions 
 
            imposed following the injury and subsequent surgical 
 
            treatment do not interfere with this work.
 
            
 
                 Following the injury, claimant was seen twice by her 
 
            family physician, Robert C. Larson, M.D.  Dr. Larson's 
 
            reports of May 7 and May 9 reflect complaints of low back 
 
            pain, but not radicular pain. 
 
            
 
                 Beginning May 17, claimant began a course of treatment 
 
            with William Boulden, M.D., a board certified orthopedic 
 
            surgeon who specializes in lumbar spine care.  Dr. Boulden 
 
            who testified by deposition on August 24, 1993, instituted a 
 
            treatment regimen of conservative care, including physical 
 
            therapy and medications.  When claimant was first seen, she 
 
            had no complaints of radicular pain, but week-old complaints 
 
            of bilateral knee pain on the inside of the knees.  
 
            
 
                 The record contains conflicting evidence as to when and 
 
            to what extent claimant developed radicular pain in the 
 
            buttock and leg.  At trial, claimant testified that lumbar 
 
            and intermittent left leg pains had been present since the 
 
            injury, but earlier testified in her deposition that she did 
 
            not believe that leg pain was present from the very 
 
            beginning.  Dr. Boulden based his opinions in part on the 
 
            belief that radicular pain did not appear until December 30, 
 
            1990, some eight months following injury.  However, the 
 
            medical records conclusively show that Dr. Boulden's 
 
            understanding is incorrect.  A physical therapist, Thomas 
 
            Wheatley, LPT, saw claimant on Dr. Boulden's direct referral 
 
            from May 24 through June 26, 1990.  Mr. Wheatley's chart 
 
            note of June 6 reports complaints of irritation into the 
 
            lower extremities "which has been present for some time," 
 
            and his chart note of June 19 includes the following remark:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 I was not pleased with the fact the pt. indicated 
 
                 she was having pain down the leg, therefore, I 
 
                 referred her back to the referring physician.  
 
            
 
                 Still, it seems likely that claimant made few if any 
 
            complaints of radicular pain directly to Dr. Boulden, or his 
 
            notes would so reflect.
 
            
 
                 Another family physician, Dr. Carlton Van Natta, 
 
            eventually referred claimant to Stuart Randy Winston, M.D., 
 
            a neurosurgeon.  Dr. Winston first saw claimant on February 
 
            14, 1992.  Based on his clinical examination and an MRI 
 
            study, Dr. Winston concluded that a small left-sided 
 
            herniation at L3-4 was causing claimant's "constellation of 
 
            pain symptoms."  On October 9, 1992, Dr. Winston performed a 
 
            hemilaminectomy at L3-4 with decompression of the exiting 
 
            nerve root.  Pre- and post-operative diagnoses were of 
 
            lateral stenosis at L3-4, right.  However, Dr. Winston's 
 
            discharge summary reflected that the laminectomy was 
 
            left-sided and specified that no disc herniation had been 
 
            identified.
 
            
 
                 The operation proved to be successful, described by 
 
            claimant as "incredibly helpful."  She is now free of 
 
            radicular leg pain and suffers only a dull ache in the 
 
            lumbar area, with some aching in the side; this she 
 
            describes as "nothing" compared to her condition before 
 
            surgery.  Dr. Winston subsequently rated impairment at eight 
 
            percent of the body as a whole and imposed a restriction 
 
            against repetitive lifting over 25 pounds.  Dr. Winston 
 
            specified that claimant's surgical condition was caused by 
 
            the work injury.
 
            
 
                 The parties have stipulated that claimant was off work 
 
            as a result of surgery from October 9 through October 30, 
 
            1992.  This is well within the 8-12 weeks Dr. Winston 
 
            suggested for maximum recuperation.
 
            
 
                 Dr. Boulden holds many opinions directly contrary to 
 
            Dr. Winston, including interpretation of two MRI scans and 
 
            even whether Dr. Winston's surgical course was appropriate.  
 
            Although Dr. Boulden is a well-respected physician, Dr. 
 
            Winston's views have been accepted in this decision for at 
 
            least two reasons.  First, Dr. Boulden's opinions are 
 
            partially based on his incorrect understanding that claimant 
 
            did not suffer radicular pain prior to December 1990.  
 
            Secondly, while both physicians acted as treating 
 
            physicians, Dr. Winston's treatment worked and Dr. Boulden's 
 
            did not.
 
            
 
                 Disputed medical bills are contained in claimant's 
 
            exhibit one.  Dr. Graham's bill of $347.50 appears on page 
 
            two.  Dr. Graham is a licensed psychologist to whom claimant 
 
            was referred by Dr. Boulden to help her adjust to the pain 
 
            syndrome she suffered.  That referral indicates that Dr. 
 
            Boulden considered the treatment reasonable and necessary.  
 
            Claimant's pain is here found causally connected to the work 
 
            injury.  
 
            
 
                 Dr. Larson's bill of $23.50 appears on page three of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            exhibit one.  There is no showing what services were 
 
            rendered.  There is no showing that the treatment was 
 
            reasonable and necessary and defendants refused to stipulate 
 
            that the fee charged is fair and reasonable.  Accordingly, 
 
            defendants must prevail as to that bill.
 
            
 
                 The statement of Medical Center Anesthesiologist, P.C., 
 
            appears on pages four and five and totals $577.50.  Those 
 
            charges clearly relate to the successful lumbar 
 
            laminectomy/decompression and constitute reasonable medical 
 
            care.  The bill is compensable.
 
            
 
                 A bill from Family Medicine totalling $315.00 appears 
 
            on page seven.  The evidence fails to show the nature of 
 
            this treatment.  Defendants prevail.
 
            
 
                 The statement of Des Moines Neurosurgeons, P. C., 
 
            totalling $2,764.00 appears on page eight.  This appears to 
 
            be related to claimant's successful surgery at the hands of 
 
            Dr. Winston.  The bill is compensable.
 
            
 
                 The bill of MCL appearing on page nine and totalling 
 
            $48.25 apparently relates to laboratory charges.  It is 
 
            unknown what physician ordered the tests or for what 
 
            purpose.  Defendants prevail.
 
            
 
                 Page ten is a bill from Mercy Hospital Medical Center 
 
            totalling $4,427.88.  All charges relate to claimant's 
 
            successful surgery and are compensable.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Based on Dr. Winston's opinion, the lumbar surgery and 
 
            claimant's resultant temporary and permanent disability are 
 
            causally related to the original work injury.  Claimant has 
 
            met her burden of proof on the causation issue.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Temporary total disability during 1990 was awarded in 
 
            the first arbitration decision.  Healing period can be 
 
            intermittent or interrupted.  Under section 85.34(1), 
 
            healing period benefits are payable until the worker has 
 
            returned to work, is medically capable of returning to 
 
            substantially similar employment, or has achieved maximum 
 
            medical recovery.  Per the parties' stipulation, additional 
 
            healing period benefits are awarded from October 9 through 
 
            October 30, 1992.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant is now earning substantially more than she did 
 
            at the time of her injury.  This is a strong indication that 
 
            her earning capacity has not been greatly damaged.  
 
            Claimant's education and previous work experience are 
 
            unknown, so it is unclear what, if any, previously held 
 
            positions would now be foreclosed by a restriction against 
 
            repetitive lifting over 25 pounds.  Nonetheless, claimant 
 
            has sustained injury requiring major surgery and, since she 
 
            had been already terminated, the employer obviously refused 
 
            to offer further suitable employment.
 
            
 
                 Based on these factors in specific and the record 
 
            otherwise in general, it is held that claimant has sustained 
 
            an industrial disability equivalent to ten percent of the 
 
            body as a whole, or 50 weeks.
 
            
 
                 Claimant's entitlement to medical benefits has already 
 
            been discussed, but for one issue.  Defendants also assert 
 
            that medical expenses were not authorized.  However, 
 
            longstanding and frequently repeated agency precedent 
 
            establishes that defendants cannot deny liability and 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            simultaneously guide the course of treatment.  Barnhart v. 
 
            MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981), 
 
            and other decisions too numerous to cite.  Defendants 
 
            originally denied liability of any kind, but received an 
 
            adverse arbitration decision in 1991.  Now, they deny that 
 
            the injury caused permanent disability and deny that the 
 
            injury caused temporary disability following surgery.  They 
 
            also deny compensability of all other medical treatment.  
 
            The only issues admitted are those that have already been 
 
            adversely decided in the first arbitration decision.  
 
            Defendants have voluntarily paid only the 10.571 weeks 
 
            ordered in that decision, and then not until over a month 
 
            after it was filed.  Assertion of an authorization defense 
 
            in this case is frivolous.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay additional healing period benefits 
 
            at the stipulated rate of one hundred eighty-two and 39/100 
 
            dollars ($182.39) from October 9, 1992 through October 30, 
 
            1992 (3.143 weeks).
 
            
 
                 Defendants shall pay fifty (50) weeks of permanent 
 
            partial disability benefits at the stipulated rate 
 
            commencing October 31, 1992.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendants shall also pay those medical bills set forth 
 
            as compensable in the findings of fact above.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry W Dahl III
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines Iowa 50312
 
            
 
            Mr David L Jenkins
 
            Attorney at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines Iowa 50309-2727
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PAM THOMPSON,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 939777
 
            OFFICE SERVICES, INC.,   :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            ALLIED GROUP,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            STATEMENT OF THE CASE
 
            This case came on for hearing on June 17, 1991, at Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for temporary total disability 
 
            benefits and medical benefits as a result of an alleged 
 
            injury occurring on April 30, 1990.  The record in the 
 
            proceeding consists of the testimony of claimant, Robert 
 
            Ohme, Janet Longcor, and Carolyn Miller; and joint exhibits 
 
            1, 2 and 4 through 11.
 
            issues
 
            The issues for resolution are:
 
            1.  Whether there was an employer-employee relationship;
 
            2.  Whether claimant's alleged injury on April 30, 1990, 
 
            arose out of and in the course of her employment;
 
            3.  Whether there is any casual connection between 
 
            claimant's alleged temporary total disability and her 
 
            alleged April 30, 1990 injury;
 
            4.  The extent of claimant's temporary total disability and 
 
            entitlement to such benefits, if any; and,
 
            5.  Whether claimant is entitled to 85.27 medical benefits, 
 
            said issue being causal connection and authorization and 
 
            refers only to those bills set out on joint exhibit 2.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            Claimant testified in person and through her deposition 
 
            taken on January 10, 1991 (Joint Exhibit 11). 
 
            Claimant is 42 years old and began working as a salesperson 
 
            for defendant employer on December 4, 1989.  Claimant was 
 
            guaranteed $1,500 per month for three months at which time, 
 
            depending on the circumstances, she would be then on a sales 
 
            commission basis.  This guarantee was extended one more 
 
            month during March 1990 with the understanding there would 
 
            be another evaluation on April 1, 1990.  Though there is a 
 
            dispute as to the nature of the evaluation, the fact is 
 
            claimant was on a sales commission basis beginning April 1, 
 
            1990.  Claimant's duties were basically selling of office 
 
            equipment to new customers and also maintaining and 
 
            servicing existing accounts.
 
            On April 30, 1990, claimant delivered a letter (Jt. Ex. 9) 
 
            to Janet Longcor, the president of defendant corporation, by 
 
            placing the same on her desk.  Later on that day, around 
 
            2:00 or 2:30, claimant was called into a meeting with the 
 
            president, Janet Longcor, and the major stockholder of said 
 
            defendant employer, Robert Ohme.  Depending on who was more 
 
            accurate, this meeting was estimated to have lasted from 10 
 
            minutes to three quarters of an hour.  This meeting resulted 
 
            in claimant being terminated from her employment with 
 
            defendant employer.
 
            Claimant testified that she still had certain materials and 
 
            equipment of defendant employer in her possession, both at 
 
            home and in her automobile.  Claimant indicated that on this 
 
            same date, beginning after termination, she made certain 
 
            trips from the office to her car and returned again carrying 
 
            either her personal property after cleaning out her office 
 
            desk or returning certain property of defendant employer to 
 
            the defendant employer's premises.  As will be discussed 
 
            later on, Janet Longcor helped the claimant carry certain 
 
            pictures and personal belongings of the defendant to 
 
            claimant's car upon claimant's request for help after she 
 
            had fallen on the premises.
 
            Claimant said that she made some follow-up calls after this 
 
            termination meeting to customers whom she had previously 
 
            contacted and with whom she had left certain equipment of 
 
            defendant employer on a trial basis, all within company 
 
            procedure.  Claimant indicated that on one particular 
 
            instance she was hoping that the sale could be consummated 
 
            that same date in which case she would be entitled to a 
 
            commission.  Claimant indicated she was very surprised by 
 
            her termination and that she was upset by the events.
 
            Claimant described the layout of the office and location of 
 
            her office, a hallway, and a room through which she 
 
            eventually exited in the furnace area which led out to the 
 
            employee parking lot in which she had parked her automobile.
 
            While making a trip from her office carrying some personal 
 
            belongings to her car, claimant fell resulting in her 
 
            landing on her hands and knees and becoming stunned and 
 
            remained in said position on the floor for a few minutes 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            thereafter.  Claimant was not exactly sure the cause of her 
 
            falling other than she indicated that her toe either caught 
 
            in the carpet or the carpet in some manner caused her to 
 
            fall within the defendant employer's building.  The evidence 
 
            indicates that there appears to be an approximate 60 to 70 
 
            percent angle turn while walking from one threshold around 
 
            the furnace to the exit door.  The evidence is somewhat 
 
            confusing as to the detailed description of the area.  There 
 
            is no dispute that claimant had fallen or at least ended up 
 
            on the floor.  It also appears undisputed that there is 
 
            carpeting on the passageway and that this carpeting is 
 
            approximately 24 inches wide and had been there prior to 
 
            defendant employer renting the premises in 1982.  That this 
 
            carpet does not go wall to wall and that there is an edge on 
 
            each side of the carpet which is elevated slightly more than 
 
            the floor itself on which it rests.
 
            Claimant indicated that she scraped her knee and arm when 
 
            she fell and noticed that she pulled something in her back 
 
            area and felt a twisting sensation.  She said that Janet 
 
            Longcor came to help her and took her to a chair in an 
 
            adjoining room.  Claimant said that she screamed or made a 
 
            noise when she fell and that there were other individuals in 
 
            the area.  One individual who was not an employee of 
 
            defendant employer was on the premises changing a lock on 
 
            the doors due to the fact that claimant was terminated and 
 
            the employer obviously wanted to prevent her ultimate access 
 
            into the building.  This individual from Strauss Lock 
 
            Company wrote a memo, as reflected at joint exhibit 4, page 
 
            47.  Claimant said that after her fall she continued to 
 
            clean out the rest of her items and make some further phone 
 
            calls regarding clients who had equipment of defendant 
 
            employer on a trial basis.  Claimant shortly thereafter went 
 
            to see her family doctor, R. C. Larson, M.D.  Claimant 
 
            eventually saw William R. Boulden, M.D.  Claimant 
 
            acknowledged that Dr. Boulden eventually referred claimant 
 
            to a psychologist because he thought she was stressed and 
 
            depressed and this may be affecting her perception of pain.  
 
            Claimant acknowledged that Dr. Boulden, on July 12, 1990, 
 
            indicated she could return back to work as long as she did 
 
            not have to do repetitive bending, twisting with her back 
 
            and no prolonged sitting (Jt. Ex. 1, p. 7).
 
            Claimant testified both on direct examination and on 
 
            considerable cross-examination concerning the pain she said 
 
            she is suffering up to the present.  The undersigned sees no 
 
            necessity in getting into the evidence and testimony of 
 
            claimant or others concerning this area after July 12, 1990, 
 
            as the issue of whether there is permanent disability is not 
 
            before the undersigned.  The issues are limited and if any 
 
            weekly benefits are to be awarded, they would only be 
 
            benefits concerning temporary total disability and that 
 
            period to which claimant would be entitled to such benefits 
 
            if liability is found has been stipulated to by the parties, 
 
            namely, beginning April 30, 1990 to and including July 12, 
 
            1990, a period of 10.571 weeks.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant testified as to her various visits to the doctors 
 
            which resulted in claimant, upon recommendation of Dr. 
 
            Boulden, having an MRI, the expense of which claimant seeks 
 
            herein, as well as other expenses in reference to joint 
 
            exhibit 2, page 42.  The undersigned finds that medical 
 
            bills and services and as indicated earlier any testimony or 
 
            evidence concerning claimant's medical treatment after July 
 
            12, 1990, is not to be considered herein.  It is obvious 
 
            when the exhibits were put together jointly by the parties 
 
            that the parties were proceeding initially on the basis that 
 
            the extent of claimant's permanent disability, if any, would 
 
            also be an issue to be decided by the undersigned.  The 
 
            Friday before the Monday hearing claimant withdrew the 
 
            permanency issue which the undersigned allowed.  Likewise, 
 
            the exhibits that have been prepared were still part of the 
 
            record herein.  It was claimant's choice to withdraw the 
 
            permanency issue and although same was resisted by the 
 
            defendants, the claimant received a favorable ruling at the 
 
            beginning of this hearing.
 
            Claimant testified that her health was very good prior to 
 
            April 30, 1990, other than having a bout of flu that 
 
            lingered for a period of time in February 1990.
 
            Robert Ohme, a major stockholder of defendant employer, has 
 
            operated defendant employer beginning 29 years ago.  He 
 
            described the nature of his business.  He indicated that 
 
            when claimant was hired the territory in Polk County was 
 
            divided and claimant chose the western portion.  He 
 
            indicated claimant's sales were not good and that she did 
 
            not feel the importance of the company's training and she 
 
            appeared to feel that it was taking time away from her work 
 
            in the territory.  He indicated he was present at the 
 
            meeting that resulted in claimant's termination but was not 
 
            in the office when she fell.
 
            Janet Longcor, the president of defendant employer for the 
 
            last ten years, indicated she had been with defendant 
 
            employer 29 years and is a stockholder.
 
            She indicated she was involved in interviewing and training 
 
            of the claimant and that Mr. Ohme was the primary supervisor 
 
            of the claimant.  Ms. Longcor also indicated that claimant's 
 
            work results were not what they wanted and that beginning 
 
            April 1, 1990, she was paid on a commission only basis.  She 
 
            indicated she interpreted the April 30, 1990 letter of 
 
            claimant that was placed on her desk as more of a letter of 
 
            resignation and reflected a change of attitude on the part 
 
            of the claimant.  Ms. Longcor indicated the meeting lasted 
 
            30 to 45 minutes at the most and that the termination of 
 
            claimant from her employment was effective immediately at 
 
            that meeting.  She did not recall giving claimant an 
 
            opportunity to do more calls or complete any calls.  She 
 
            indicated she would question claimant's attitude at that 
 
            time and that claimant had no more sales responsibility 
 
            after her firing.  Ms. Longcor did acknowledge that claimant 
 
            had general housekeeping matters to do at the office which 
 
            included inventorying equipment after her termination.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Ms. Longcor indicated that she heard a scream from her 
 
            office at the front of the building and went to the area 
 
            from which the noise came and found claimant on the floor on 
 
            all fours.  Ms. Longcor acknowledged that there is about a 
 
            60 to 70 degree turn around the furnace as you would leave 
 
            for the exit where the claimant had her automobile and was 
 
            carrying her belongings.  She also acknowledged that the 
 
            carpet is approximately 24 inches wide and has an edge on it 
 
            and has been on the premises since defendant employer began 
 
            renting it in 1982.  Defendants, particularly through this 
 
            witness, seemed to try to convey the message that claimant 
 
            could not have accidently fallen in the manner and nature 
 
            that she did and how she was found and in the location she 
 
            was found due to the angle or curve in this area of the 
 
            building.  Ms. Longcor said that she asked the claimant when 
 
            she came upon her in her fallen position if she hurt herself 
 
            and offered to assist her.  Ms. Longcor indicated her first 
 
            impression was that the screaming scene seemed dramatic and 
 
            that her assessment of the alleged pain that claimant was 
 
            having and her distress was questionable.  She assisted the 
 
            claimant to her feet and took her to a shipping area and sat 
 
            her on a chair.  She acknowledged claimant said her back 
 
            hurt and claimant told her to look at her hands.  Ms. 
 
            Longcor said at that time claimant's hands and head were 
 
            shaking.
 
            Ms. Longcor indicated that her office is across the hall 
 
            from claimant's and that claimant had not yet checked out 
 
            the inventory before her fall.  Ms. Longcor acknowledged 
 
            that the claimant asked her for help to get certain company 
 
            literature out of the trunk of her car as she contends she 
 
            was unable to pick it up.  Ms. Longcor indicated this 
 
            material weighed approximately four pounds.  She then went 
 
            on to say that she was surprised that claimant was then able 
 
            to take the pictures off her wall and could pick up her 
 
            briefcase that was on the ground.  Ms. Longcor acknowledged 
 
            that upon claimant's request, she carried pictures, etc., to 
 
            claimant's car as claimant indicated she needed help because 
 
            of her pain.
 
            Ms. Longcor was asked, on cross-examination, as to whether 
 
            there was any discussion concerning what to do about 
 
            defendant employer's equipment that was lent out on a trial 
 
            or on a loan basis and the sales that were in process.  Ms. 
 
            Longcor did not recall that these things were discussed.  
 
            The undersigned, noticing the demeanor of this witness, 
 
            believes claimant's testimony that this was discussed.  Ms. 
 
            Longcor acknowledged that     claimant was paid for 
 
            commission sales through April 1990.  She also acknowledged 
 
            that claimant had duties to defendant employer to bring in 
 
            the customer card boxes and turn in the demonstration 
 
            equipment and accessories.  Ms. Longcor indicated it is not 
 
            easy to terminate people and that this was stressful for her 
 
            and that claimant, likewise, was stressed by these events.
 
            Carolyn Miller, an employee of defendant employer for 
 
            approximately thirteen years and the current administrative 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            assistant, testified that she was familiar with claimant and 
 
            had daily contact of a business nature with her at defendant 
 
            employer's place of employment.  She acknowledged that she 
 
            was in the office on April 30, 1990, when claimant had 
 
            indicated that she had just been terminated.  Miller 
 
            indicated she did not see claimant fall but that she heard a 
 
            commotion and a yell.  She indicated she was reluctant at 
 
            that time to run back to see the problem but that it sounded 
 
            like a fall and some boxes were shuffled.  She then 
 
            indicated Ms. Longcor went by and she then observed Longcor 
 
            helping claimant into the conference room and sitting her on 
 
            the chair.  She indicated claimant looked at her and said 
 
            "did you see that?" and commented to Jan about her shaking 
 
            hands and asked if her clothes were torn and she looked for 
 
            scratches and scrapes.  Miller indicated she observed Jan 
 
            Longcor helping claimant around the office carrying out her 
 
            pictures.
 
            Joint Exhibit 1, page 12, is a letter from Dr. Larson, who 
 
            on May 7, 1990, indicated claimant was in to see him on 
 
            April 30, 1990 and indicated she had tripped and fell on a 
 
            piece of carpet at work.  An examination revealed a 50 cent 
 
            size scrape on claimant's left elbow, myofacial strain of 
 
            the dorsolumbar area.  On May 9, 1990, Dr. Larson indicated 
 
            that claimant was unable to perform her duties as a 
 
            salesperson beginning April 30, 1990 to an unknown date at 
 
            that time (Jt. Ex. 1, p. 13).  Joint Exhibit 1, page 1, 
 
            reflects the notes of licensed physical therapist Thomas A. 
 
            Wheatley and Tom Bower concerning physical therapy that 
 
            claimant had in May and June pursuant to a diagnosis of 
 
            lumbosacral strain residual tightness.
 
            As indicated earlier, there is no necessity by the 
 
            undersigned to go through the various other medical exhibits 
 
            which basically relate to claimant's treatment and condition 
 
            after July 12, 1990.  All these exhibits seem to go to a 
 
            permanency issue that was in existence until shortly before 
 
            the beginning of the hearing of this matter.
 
            Defendants contend that claimant was not an employee because 
 
            she was terminated around 2:30 or 3:00 on April 30, 1990, 
 
            which was thirty minutes or more before her fall.  Likewise, 
 
            defendants contend that since claimant was not an employee 
 
            due to her termination, any fall or alleged injury could not 
 
            have arisen out of her employment as she was no longer 
 
            employed and, likewise, not being employed any injury could 
 
            not be in the course of her employment.
 
            There is no dispute that claimant fell on the premises or at 
 
            least that she was seen by more than one individual on the 
 
            floor on her hands, knees and/or her elbows.  Defendants 
 
            seem to want to leave the impression that this was a fake or 
 
            intentional or was a dramatic experience performed by the 
 
            claimant and was not real.  The undersigned finds that 
 
            claimant was, in fact, an employee at the time she fell on 
 
            April 30, 1990.  Notwithstanding the fact that the 
 
            defendants terminated her, there was still undisputed facts 
 
            that claimant had to clean up her office, remove her 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            personal belongings, make an inventory with the employer, 
 
            and an accounting and arrangements to see that the defendant 
 
            employer's equipment was returned to them.  This equipment 
 
            not only included items that were in claimant's car, but 
 
            items on trial and on loan all as a part of claimant's sales 
 
            responsibility.  Although defendant employer could not 
 
            recall whether any discussion was had concerning follow-up 
 
            calls concerning potential customers who may be desirous of 
 
            purchasing the equipment and concerning whom claimant had 
 
            contacted, the undersigned finds that claimant is credible 
 
            in that she made one or more calls and that these calls were 
 
            reasonable, expected and were of benefit or could have been 
 
            a benefit also to the defendant employer if the sale had 
 
            been consummated.  It appears undisputed that there was 
 
            equipment on trial with various clients and that it was 
 
            through claimant's efforts that certain equipment was on 
 
            loan on a trial basis to potential purchasers.  The 
 
            defendants would have profited from any sale as well as 
 
            would have claimant profited on a commission basis.  It is 
 
            undisputed that claimant did receive and was entitled to 
 
            receive all commissions on sales through April 30, 1990.  
 
            The undersigned further finds that claimant was still in the 
 
            course of her employment as an employee performing work that 
 
            was expected of her and a natural flow from the events that 
 
            occurred that day.  It is further found that claimant's fall 
 
            arose out of her employment, as indicated herein.  It is 
 
            therefore found that claimant was an employee of defendant 
 
            employer on April 30, 1990, at which time she fell on the 
 
            premises and that said fall and any subsequent injury arose 
 
            out of and in the course of her employment.
 
            Claimant contends that there is no causal connection of 
 
            claimant's alleged temporary total disability and her 
 
            alleged fall of April 30, 1990.  It appears clear that the 
 
            causal connection denial flows from the fact of the denial 
 
            of the other issues of the employer-employee relationship 
 
            and the arising out of and in the course of claimant's 
 
            employment.  Claimant saw the doctor on the same day of her 
 
            alleged fall and the doctor diagnoses that claimant did 
 
            indicate she fell on a carpet at work and the doctor's 
 
            examination revealed a myofacial strain of the dorsolumbar 
 
            area and a scrape of the left elbow and claimant was given 
 
            medicine (Jt. Ex. 1, p. 12).
 
            The parties stipulated if, in fact, there is liability and 
 
            causal connection, an employer-employee relationship, and an 
 
            injury that arose out of and in the course of claimant's 
 
            employment, that claimant was, in fact, off work beginning 
 
            April 30, 1990 through July 12, 1990.  This amounts to 
 
            10.517 weeks.  The undersigned finds that claimant's period 
 
            in which she was off work was causally connected to her 
 
            April 30, 1990 work injury and that claimant is entitled to 
 
            10.517 weeks of temporary total disability benefits at the 
 
            stipulated weekly rate of $182.39.
 
            As to the 85.27 issue, that dispute involved causal 
 
            connection and authorization.  The bills in dispute are 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            represented on joint exhibit 2.  As indicated earlier, the 
 
            undersigned is only going to address those bills incurred in 
 
            reference to treatment concerning claimant's temporary total 
 
            disability which ended through July 12, 1990.  It appears 
 
            possibly one or more of those bills on joint exhibit 2 may 
 
            have already been paid.  Defendants deny liability.  
 
            Claimant had a right to seek medical care.  The undersigned 
 
            finds that Thomas Wheatley's bill for $600, and the 
 
            rehabilitation bill of $290.10 are causally connected to 
 
            claimant's work-related injury on April 30, 1990, and 
 
            treatment in relation to claimant's temporary total 
 
            disability and shall be paid by defendants.  The undersigned 
 
            finds that no disposition at this time is going to be made 
 
            as to the March 29, 1991 Iowa Lutheran Hospital bill for 
 
            services rendered in relation to an MRI in the amount of 
 
            $1,136.50.  As indicated earlier, claimant withdrew the 
 
            issue concerning any permanent injury and that this bill was 
 
            incurred in connection with the attempted determination of 
 
            any permanent impairment or disability.
 
            Regarding the $215 bill of Dr. Boulden, it appears from page 
 
            45 of joint exhibit 2 that on Dr. Boulden's total bill there 
 
            had been payments of $225 for services rendered regarding 
 
            claimant's temporary total disability and that there appears 
 
            to remain a balance of $65 that will be due for that period 
 
            of time for which defendants shall pay.  Therefore, the 
 
            undersigned finds that of the $215 bill shown in joint 
 
            exhibit 2, page 45, defendants are responsible at this time 
 
            for only $65 of said bill.  The remaining bill has to do 
 
            with the issue of permanent disability which is not an issue 
 
            in this current situation.
 
            conclusions of law
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that she received an injury on April 30, 1990, 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            The 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 "in the course of" refer to the time and place and 
 
            circumstances of the injury.  McClure v. Union et al. 
 
            Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto, 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, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; 
 
            Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of April 30, 1990, is causally 
 
            related to the disability on which she now bases her claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960). 
 
            Iowa Code section 85.33(1) provides:
 
               Except as provided in subsection 2 of this section, the 
 
            employer shall pay to an employee for injury producing 
 
            temporary total disability weekly compensation benefits, as 
 
            provided in section 85.32, until the employee has returned 
 
            to work or is medically capable of returning to employment 
 
            substantially similar to the employment in which the 
 
            employee was engaged at the time of injury, whichever occurs 
 
            first.
 
            It is further concluded that:
 
            Claimant was an employee of defendant employer on April 30, 
 
            1990.
 
            Claimant incurred a work-related injury on April 30, 1990, 
 
            which arose out of and in the course of her employment.
 
            Claimant was temporary totally disabled beginning April 30, 
 
            1990 through July 12, 1990, as a result of a work-related 
 
            injury and that said temporary total disability was caused 
 
            by claimant's April 30, 1990 work injury.
 
            Claimant is entitled to have her medical bills paid as 
 
            follows:
 
            Thomas Wheatley, L.P.T.       $600.00
 
                 Rehabilitation equipment       290.10
 
                 William Boulden, M.D.           65.00
 
            There has been no determination as to whether claimant has 
 
            any permanent disability as that was ultimately not an issue 
 
            herein.
 
            ORDER
 
            THEREFORE, it is ordered:
 
            That defendants shall pay unto claimant temporary total 
 
            disability benefits for the period of April 30, 1990 through 
 
            July 12, 1990, which involves ten point five seven one 
 
            (10.571) weeks at the weekly rate of one hundred eighty-two 
 
            and 39/100 dollars ($182.39).
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            benefits previously paid.  The record indicates that 
 
            defendants have made no payments of any weekly benefits.
 
            That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay claimant's medical bill as 
 
            follows:
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Thomas Wheatley, L.P.T.       $600.00
 
            Rehabilitation equipment       290.10
 
            William Boulden, M.D.           65.00
 
            That defendants shall pay the costs of this action, pursuant 
 
            to rule 343 IAC 4.33.
 
            That defendants shall file an activity report upon payment 
 
            of this award as required by this agency, pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Channing Dutton
 
            Attorney at Law
 
            500 West Towers
 
            West Des Moines IA 50265
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            Mr David L Jenkins
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309-2727
 
            
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                            2901; 2905; 2700; 2501
 
                                            Filed February 28, 1994
 
                                            DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PAMELA THOMPSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 939777
 
            OFFICE SERVICES, INC.,        :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2901; 2905; 2700
 
            In first arbitration proceeding, claimant was allowed to 
 
            dismiss her claim for permanency on the day of hearing.  
 
            However, the permanency issue was not bifurcated.  Although 
 
            entitlement to penalty benefits had been preserved in the 
 
            hearing assignment order, the issue was not presented in the 
 
            hearing report to the arbitration deputy.  The subsequent 
 
            arbitration decision did not address penalty benefits and 
 
            declined to consider medical expenses accrued after the 
 
            stipulated healing period on the theory that they pertained 
 
            to the permanency issue.
 
            Claimant subsequently filed a petition in review-reopening 
 
            and for medical benefits.  Defendants asserted that the 
 
            permanency claim was barred by principles of res judicata or 
 
            issue preclusion.  It was held that a dismissal under rule 
 
            215 is without prejudice unless otherwise stated, and that 
 
            approval of the partial dismissal did not intend to 
 
            foreclose further litigation on the permanency issue.  Even 
 
            though permanency was not bifurcated, the unique 
 
            circumstances were held to constitute a form of 
 
            "constructive bifurcation."  The litigation was considered a 
 
            supplemental arbitration proceeding, not one in 
 
            review-reopening.  It was unnecessary for claimant to 
 
            establish a change in condition since the first hearing.
 
            However, entitlement to medical benefits from the end of the 
 
            stipulated healing period through the date of the first 
 
            arbitration hearing was not considered.  Medical expenses 
 
            during that time were properly presented as an issue, being 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            neither bifurcated nor dismissed.  The refusal to consider 
 
            expenses during that time frame was not appealed and became 
 
            final.  Expenses accrued subsequent to the first hearing 
 
            were awarded.
 
            The claim for penalty benefits was not presented as an issue 
 
            at the first hearing and was not bifurcated, although 
 
            preserved as an issue by the hearing assignment order.  The 
 
            claim addressed only the stipulated healing period dealt 
 
            with in the first proceeding.  It was held that the penalty 
 
            claim was waived (in response to a letter from claimant's 
 
            attorney after the first decision was filed, the first 
 
            deputy refused to address the penalty claim).
 
            
 
            2501
 
            At the first arbitration hearing, defendants denied all 
 
            compensability.  Thereafter, defendants denied causal 
 
            connection to permanency and further medical treatment, 
 
            including surgery (and the resultant healing period).  
 
            Defendants' only admissions were those matters previously 
 
            decided adversely to them.  Held: by continuing to deny 
 
            liability, defendants forfeited the right to control the 
 
            course of treatment.  Assertion of an authorization defense 
 
            was frivolous.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1100: 5-1108-50
 
                      Filed June 25, 1991
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PAM THOMPSON,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 939777
 
            OFFICE SERVICES, INC.,   :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            ALLIED GROUP,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1100
 
            Found claimant's injury arose out of and in the course of 
 
            her employment.
 
            
 
            5-1108-50
 
            Found claimant's low back injury causally connected to her 
 
            work injury resulting in temporary total disability 
 
            payments.  Permanent disability not an issue.
 
            
 
            1100
 
            Claimant was fired and immediately thereafter cleared out 
 
            her desk and returned company materials and equipment used 
 
            for sales and trial purposes from her car.  During one of 
 
            the trips from defendant employer's premises to her car, 
 
            claimant fell inside the building.  Defendants 
 
            unsuccessfully contended that claimant was fired and 
 
            anything after that minute of termination was not as an 
 
            employee and was not in the course of claimant's employment.  
 
            Claimant's fall occurred after her termination.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            RICHARD CATURIA,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 939795
 
            HEARTLAND EXPRESS,    
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            GREAT WEST CASUALTY 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.
 
            
 
                                    ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  
 
            Defendants state the following issues on appeal:
 
            I.  Whether claimant as an owner-operator of a semi tractor 
 
            was an independent contractor pursuant to section 
 
            85.61(13)(c) at the time of his alleged injury thus barring 
 
            him from benefits?
 
            II.  Whether claimant sustained an injury arising out of and 
 
            in the course of his employment on February 26, 1990?
 
            III.  Whether claimant has sustained any significant 
 
            industrial disability from his alleged injury?
 
            IV.  Whether claimant's entitlement to benefits is suspended 
 
            from January 2, 1992, for his refusal to attend a scheduled 
 
            IME with Dr. McGuire?
 
            
 
            Claimant states the following issues on cross-appeal:
 
            
 
            1.  86.13 penalty
 
            2.  Odd-Lot
 
            3.  Determination of exact amount owed to Mr. Caturia 
 
            including interest.
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed March 6, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            final agency decision.
 
            *****
 
            Claimant worked for Heartland from November 1, 1988 until 
 
            April 10, 1990, as an over-the-road driver of semi 
 
            tractor/trailer trucks.  His duties consisted of not only 
 
            driving but assisting in unloading cargo.  According to his 
 
            personnel file, claimant was terminated from Heartland on 
 
            April 10, 1990, for failure to follow the "call in" 
 
            procedures set forth in the Drivers Manual provided to all 
 
            Heartland drivers.  It was also noted in the termination 
 
            memoranda that claimant had a poor attitude and was late in 
 
            getting in paperwork.  Promptness of turning in paperwork 
 
            was also a rule set forth in the Drivers Manual.
 
            It is found that on the alleged date of injury, an 
 
            employer-employee relationship existed between Heartland and 
 
            claimant.  This finding is made despite the existence of a 
 
            written contract between Heartland and claimant purporting 
 
            to establish an independent contractor relationship as an 
 
            "owner/operator."  In this contract, dated November 1, 1988, 
 
            claimant agreed to provide, for Heartland's exclusive use, a 
 
            tractor purchased by claimant which would be dispatched 
 
            during the term of the contract by Heartland to pull 
 
            trailers and cargo for Heartland.  Heartland would collect 
 
            the revenue from the loads and pay claimant from 70.5 to 75 
 
            cents per mile, depending upon the load and mileage.  Under 
 
            this contract, claimant was to furnish the drivers but only 
 
            those approved by Heartland.  Also the contract required 
 
            claimant to pay all operating expenses, including tolls, 
 
            ferries, fuel, oil, taxes, traffic and weight fines, repairs 
 
            on the tractor, wages of all drivers, and workers' 
 
            compensation insurance on drivers and helpers.  It 
 
            specifically provided that claimant place on file with 
 
            Heartland a current certificate of insurance with respect to 
 
            workers' compensation.  Claimant testified that he thought 
 
            the contract provided that Heartland provide him with 
 
            workers' compensation coverage but that he was to provide 
 
            such coverage for any persons employed by him.  Apparently, 
 
            no certification of insurance was provided to Heartland.  
 
            Claimant's interpretation of the language contained in the 
 
            contract is contrary to its expressed language.  It is also 
 
            found that although the contract provided that claimant 
 
            timely complete and submit all logs and paperwork, there was 
 
            no clause in this contract setting forth any call in 
 
            procedure.
 
            
 
            Heartland had two classes of drivers during claimant's 
 
            employment, namely company drivers and owner/operators.  
 
            Company drivers were viewed by Heartland as their only 
 
            employees.  These company drivers received approximately 50 
 
            cents per mile less than owner/operators and they only drove 
 
            tractors purchased by Heartland.  These company drivers were 
 
            not expected to pay the operating costs of the tractor on 
 
            the road such as fuel and repairs.
 
            In actuality, only claimant drove his tractor.  Prior to 
 
            entering into this contract, claimant was asked to complete 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            an employment application and to undergo drug testing.  DOT 
 
            driver tests and an inquiry into past employment was 
 
            administered by Heartland management for both 
 
            owner/operators and company drivers.  After he was employed, 
 
            claimant underwent an orientation in which both company 
 
            drivers and owner/operators were trained together and 
 
            jointly informed on work rules contained in the Drivers 
 
            Manual.
 
            There is insufficient evidence upon which to find that 
 
            claimant assumed the principle burden of the operating costs 
 
            of his tractor in his hauling relationship with Heartland.  
 
            It is true that claimant was expected to pay these costs as 
 
            they were incurred on the road.  However, he received an 
 
            extra 50 cents per hour from Heartland over what was paid to 
 
            company drivers and routinely received advancements each 
 
            week amounting to over $1,000 from Heartland sufficient to 
 
            cover these costs.  With the only possible exception of the 
 
            first trip in 1988, claimant never actually utilized his own 
 
            money in paying these operating costs while he was a driver 
 
            for Heartland.  The advancements were repaid automatically 
 
            to Heartland at the time of load settlement at which time 
 
            advancement amount was simply deducted from claimant's per 
 
            mile load earnings.  The following week, claimant received 
 
            another advancement.  This arrangement does not appear 
 
            materially different than a mileage reimbursement from any 
 
            employer for use of a personal vehicle by an employee.  
 
            ***** Consequently, the extra 50 cents per mile amount 
 
            received by owner/operators at Heartland is much more 
 
            commensurate with actual operating expenses of the truck 
 
            than a percentage of gross load revenues.  *****
 
            The evidence fails to show that claimant, as the 
 
            owner/operator, determined the details and means of 
 
            performing the hauling services.  In fact it is specifically 
 
            found that the details and means of performing claimant's 
 
            hauling service was determined by Heartland, not claimant.  
 
            A considerable amount of control was exercised by Heartland 
 
            over claimant's work and such control was not significantly 
 
            different than the control Heartland exercised over its 
 
            company drivers.  As stated above, claimant was expected to 
 
            comply with Heartland's Drivers Manual.  In fact, as stated 
 
            above, claimant was fired for failure to comply with this 
 
            manual.
 
            The tone of the relationship between claimant and Heartland 
 
            is established in the "Introduction" contained in the 
 
            Driver's Manual.  All drivers, be they company or 
 
            owner/operators, were expected to act in a manner and style 
 
            mandated by Heartland.  High emphasis was placed on having a 
 
            "cooperative" attitude.  Both on duty and off duty 
 
            activities were controlled.  The body of the manual contains 
 
            over 40 pages of detailed step-by-step instructions on 
 
            almost every aspect of hauling.  There were procedures 
 
            mandating when, where and in what circumstances drivers were 
 
            to call in to Heartland.  Detailed cash advance procedures 
 
            were set forth along with step-by-step instructions on how 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to handle bills of lading, yellow delivery receipts, and 
 
            damage claims.  Only Heartland set up delivery time 
 
            appointments and many of these were mandatory without any 
 
            opportunity for input from any driver, company or otherwise, 
 
            at Heartland.  The manual sets forth step-by-step 
 
            instructions on trailer pick up and dropping, what to do on 
 
            multi-stop loads along with specific guidance on customer 
 
            relations.  All drivers are instructed to weigh the load 
 
            rather than risk fines and the cost is incurred by 
 
            Heartland.  Although more tolls were re-paid to company 
 
            drivers, owner/operators also were reimbursed for several 
 
            tolls.  All drivers were directed to wash truck units once a 
 
            week at the expense of Heartland.  No riders were allowed 
 
            without Heartland's permission for both company and 
 
            owner/operator drivers.  There was an instruction to both 
 
            company drivers and owner/operators as to when to drive in 
 
            bad weather.  Detailed step-by-step instructions were given 
 
            including routes used when hauling hazardous materials.  
 
            Detailed procedures were provided on how to complete driving 
 
            logs and all were subject to review by safety personnel at 
 
            Heartland.  Step-by-step instructions were given when an 
 
            accident occurs.  A termination policy was set forth.  There 
 
            was even a detailed dress code in the manual for all drivers 
 
            regulating the length of scalp hair, facial hair, use of 
 
            language, use of jewelry, type of clothing and a general 
 
            requirement that all clothing be neat and in good repair.  A 
 
            safety bonus is given to both company drivers and 
 
            owner/operators.  Procedures are given for starting an 
 
            engine, parking, and how to take pressure off the fifth 
 
            wheel.  Finally, there was a detailed alcohol and drug abuse 
 
            policy regulating use of both legal and nonlegal drugs.  On 
 
            page 41 use of alcohol 12 hours before going on duty was 
 
            prohibited.  All drivers were required to submit to drug 
 
            searches of their trucks and personal effects.
 
            It may be true that claimant was allowed to pick the route 
 
            to the delivery point but this choice was restricted by 
 
            Heartland in several respects.  First, his fuel and repair 
 
            advance was limited.  He had to routinely call in to report 
 
            his location.  Only Heartland made delivery appointments.  
 
            Claimant had to explain any missed delivery appointment.  
 
            Claimant had no choice but to accept every load assigned to 
 
            him.
 
            On the whole, claimant had very little control over the 
 
            details of his assigned work and there was little difference 
 
            between his relationship with Heartland and the relationship 
 
            between company drivers and Heartland.  What differences do 
 
            exist appear to be more form than substance.
 
            On or about February 26, 1990, claimant injured his low back 
 
            while unloading household appliances as a Heartland driver.  
 
            Claimant is somewhat unsure of the exact date.  His drivers 
 
            logs are inconsistent with such an injury date.  However, 
 
            the paperwork on the load indicates that claimant delivered 
 
            appliances at approximately the date alleged.  Claimant 
 
            admitted ***** that his logs often times were inconsistent 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            with actual driver practice.  Claimant explained that he 
 
            completed the run at the time of the injury and was able to 
 
            do so only by taking rest breaks of a few minutes.  He then 
 
            was assigned an easier day run for a few days during which 
 
            time his back improved because he was able to rest each 
 
            night.  However, claimant was then assigned a hard run 
 
            mandating driving all night and he again re-experienced low 
 
            back pain which failed to improve.
 
            Claimant first sought treatment for complaints of low back 
 
            pain and leg pain from a chiropractor, Douglas E. Jacot, 
 
            D.C., and received a few adjustments in early April 1990.  
 
            He then returned to the road and experienced more pain.  
 
            Claimant again took off work.  Claimant was then terminated 
 
            for failing to call in.  Claimant states that he informed 
 
            Heartland dispatchers of his injury and condition.  This is 
 
            found to be true.  In any event, the First Report of Injury 
 
            indicates that Heartland became aware of a claim of injury 
 
            by the end of April 1990.  It should be noted that claimant 
 
            was treated by Dr. Jacot a few months earlier in July 1989 
 
            for low back pain radiating into the leg.  At that time, Dr. 
 
            Jacot prescribed a heel shim in the foot as he felt that 
 
            problem stemmed from a short leg.  At that time, claimant 
 
            complained of recurrent low back sprains over the last ten 
 
            years.
 
            Claimant did not seek treatment for the work injury herein 
 
            from a medical doctor until May 11, 1989.  At that time, he 
 
            saw David Castleberg, M.D.  Dr. Castleberg wrote in his 
 
            office note that claimant had a prior injury one year 
 
            earlier.  Presumably this was a reference to the July 1989 
 
            injury.  Dr. Castleberg took a history from claimant of the 
 
            onset of back pain four weeks earlier and diagnosed back 
 
            sprain and possible disc protrusion.  He directed claimant 
 
            to stay off work and referred him to a neurosurgeon, Robert 
 
            A. Narotzky, M.D.
 
            Dr. Narotzky began treating claimant in June 1990 and this 
 
            treatment to date has only involved conservative care with 
 
            rest and medication along with epidural steroid injections 
 
            which somewhat improved claimant's condition.  However, with 
 
            continued complaints from claimant as to persistent pain 
 
            upon activity, the last report from Dr. Narotzky dated 
 
            December 10, 1991, indicated that his current treatment plan 
 
            is aggressive physical therapy.  Claimant testified that he 
 
            completed this therapy program on January 2, 1992.  Claimant 
 
            testified that his complaints are ongoing and he desires 
 
            additional treatment but has failed to show what current 
 
            treatment modality is suggested by Dr. Narotzky or any other 
 
            physician.
 
            It is found that the work injury of February 26, 1990, was a 
 
            cause of a three percent permanent partial impairment to the 
 
            body as a whole.  This finding is based upon the 
 
            uncontroverted views of Dr. Narotzky in his December 1990 
 
            report.  Dr. Narotzky opines that the injury, as described 
 
            to him by claimant in February 1990, resulted in a disc 
 
            protrusion and his current disability and pain.  What is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            very unclear in the record is any physical restrictions that 
 
            may have been imposed by Dr. Narotzky that may be still 
 
            ongoing.
 
            It is found that claimant reached maximum healing on 
 
            December 4, 1990, the date he was last seen by Dr. Narotzky 
 
            prior to his report of December 1990 in which he rated 
 
            claimant's permanent partial impairment.  Although some 
 
            continuing therapy was prescribed, the doctor obviously felt 
 
            that such therapy would not change his rating.  It is also 
 
            found that claimant was not working between the time he left 
 
            Heartland on April 10, 1990 and the December 4, 1990 visit 
 
            with Dr. Narotzky.  Claimant admitted he worked in calendar 
 
            year 1991 but was not specific when.
 
            Claimant states that he cannot physically return to truck 
 
            driving due to heavy lifting during unloading operations and 
 
            due to prolonged sitting.  Claimant said that he was told by 
 
            the doctor not to return to truck driving and seek 
 
            vocational rehabilitation.  This is believed and found to be 
 
            true.  However, other occupations not requiring heavy 
 
            lifting are still open to claimant.  Even if he were 
 
            physically able to drive a truck, claimant lost his truck 
 
            due to an inability to maintain his truck loan payments.
 
            Claimant has been employed on a part-time basis since last 
 
            spring.  This involves filling in for an assistant to a crop 
 
            duster by mixing and loading chemicals.  This job only 
 
            involved weekends.  Claimant denies this work required heavy 
 
            lifting.  Claimant states that he does other odd jobs and 
 
            helps his girl friend who owns a store.  Claimant's earnings 
 
            were less than $4,000 last year.
 
            Claimant's medical condition before the work injury was not 
 
            excellent and had recurrent episodes of back sprains.  
 
            However, it was not until the work injury of February 26, 
 
            1990 herein that he was compelled to leave truck driving.  
 
            Claimant's only past employment has been in construction 
 
            work and truck driving, the work he can no longer perform 
 
            and for which is best suited.  Claimant is 42 years of age 
 
            and has a high school education. Claimant has limited 
 
            potential for vocational rehabilitation given his age and 
 
            past experience.
 
            However, claimant does not appear highly motivated to seek 
 
            alternative, suitable employment and appears content to take 
 
            assistance from others.  He has only applied for a few full 
 
            time jobs many of which appear clearly unsuited for him.  On 
 
            the other hand, claimant was significantly disabled through 
 
            no fault of his own.  Heartland has done little to assist 
 
            claimant in any return to work.
 
            Although claimant received gross income of over $50,000 per 
 
            year from Heartland, his net income, after expenses, as 
 
            reflected by his income tax returns at the time of injury 
 
            was approximately only $12,000 per year.  Such a figure is 
 
            not markedly different if we utilized the 25 percent 
 
            industry wide standard recognized by this agency for 
 
            owner/operators in estimating their real earnings.
 
            Due to resulting permanent impairment and primarily an 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            inability to return to truck driving, the work injury of 
 
            February 26, 1990, was a cause of a 40 percent loss of 
 
            claimant's earning capacity.
 
            With reference to computing claimant's weekly gross rate of 
 
            compensation, claimant's gross earnings, based upon his 
 
            annual income from 1989 was $230.77 per week or the sum of 
 
            $12,000 per annum divided by 52 weeks.  Claimant was single.  
 
            He is entitled to take only one exemption in addition to 
 
            himself for the support of one child on his tax returns and 
 
            regularly did so prior to 1990.  Claimant may have 
 
            contributed to the support of his other children but was not 
 
            entitled to claim same on his returns.
 
            It is recognized that Dr. Narotzky has indicated that 
 
            claimant's condition may worsen in the future requiring 
 
            additional treatment including surgery.
 
 
 
                            CONCLUSIONS OF LAW
 
            
 
            I.  Claimant must establish that an employee-employer 
 
            relationship existed at the time period he alleges to have 
 
            incurred his work-related injury.  Only employees are 
 
            entitled to compensation for work-related injuries and 
 
            occupational diseases under Chapter 85 of the Iowa Code.  
 
            The Iowa Supreme Court stated in Nelson v. Cities Service 
 
            Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1967) as 
 
            follows:
 
               This court has consistently held it is a claimant's duty 
 
            to prove by a preponderance of the evidence he or his 
 
            decedent was a workman or employee within the meaning of the 
 
            law, and he or his decedent received an injury which arose 
 
            out of and in the course of employment.  See section 85.61, 
 
            Code, 1962.
 
            And, if a compensation claimant establishes a prima facie 
 
            case the burden is then upon defendant to go forward with 
 
            the evidence and overcome or rebut the case made by 
 
            claimant.  He must also established by a preponderance of 
 
            the evidence any pleaded affirmative defense or bar to 
 
            compensation. (citations omitted)
 
            The Iowa Supreme Court has recognized five factors in 
 
            determining whether or not an employer-employee relationship 
 
            exists:  1) the right of selection, or to employ at will; 2) 
 
            responsibility for payment of wages by the employer; 3) the 
 
            right to discharge or terminate the relationship; 4) the 
 
            right to control the work; and, 5) identity of the employer 
 
            as the authority in charge of the work or for whose benefit 
 
            it is performed.  The overriding issue is the intention of 
 
            the parties.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 
 
            503 (Iowa 1981).  In the Caterpillar Tractor case, the court 
 
            added that the primary purpose of the workers' compensation 
 
            statute is to benefit the worker insofar as the statute 
 
            permits and should be interpreted liberally with the view 
 
            toward that objective.  The court stated as follows at 506:
 
            [T]he statute is intended to cast upon the industry in which 
 
            the worker is employed a share of the burden resulting from 
 
            industrial accidents....As a result, "any worker whose 
 
            services form a regular and continuing part of the cost of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the product, and whose method of operation is not such an 
 
            independent business that it forms in itself a separate 
 
            route through which his own costs of industrial accident can 
 
            be channeled, is within the presumptive area of intended 
 
            protection.  (citation omitted)
 
            If a claimant has established a prima facie case for an 
 
            employer-employee relationship, the defendant may assert the 
 
            affirmative defense that claimant was an independent 
 
            contractor or a partner.  The Iowa legislature has provided 
 
            the following statutory test in Iowa Code section 
 
            85.61(13)(c) to determine the independent contractor status 
 
            for owner/operators.  Such persons are to be considered 
 
            independent contractors if all of the following conditions 
 
            are substantially present:
 
            
 
            1.  The owner/operator is responsible for the maintenance of 
 
            the vehicle.
 
            2.  The owner/operator bears the principal burden of the 
 
            vehicle's operating costs including fuel, repairs, supplies, 
 
            collision insurance, and personal expenses for the operator 
 
            while on the road.
 
            3.  The owner/operator is responsible for supplying the 
 
            necessary personnel to operate the vehicle, and the 
 
            personnel are considered the owner/operator's employees.
 
            4.  The owner/operator's compensation is based on factors 
 
            related to the work performed, including a percentage of any 
 
            schedule of rates or lawfully published tariff, and not the 
 
            basis of the hours or time expended.
 
            5.  The owner/operator determines the details and means of 
 
            performing the services, in conformance with regulatory 
 
            requirements, operating procedures of the carrier, and 
 
            specifications of the shipper.
 
            6.  The owner/operator enters into a contract which 
 
            specifies the relationship to be that of an independent 
 
            contractor and not that of an employee and requires the 
 
            owner/operator to provide and maintain a certificate of 
 
            workers' compensation insurance with the carrier.
 
            
 
            In the case sub judice,  claimant established a prima facie 
 
            case that he was an employee and met each of the initial 
 
            employment relationship tests set forth above.  Defendants 
 
            on the other hand failed to establish criteria tests 2 and 5 
 
            of Iowa Code section 85.61(3)(c), especially criteria 5 with 
 
            reference to control over the details of claimant's work.  
 
            Use of the term "principal burden" in criteria 2 by the 
 
            legislature was viewed as unique and a reference not to just 
 
            who pays these expenses initially, but who bears the real 
 
            economic burden in the relationship at issue herein.  In 
 
            this case, the burden was found to fall on the carrier, not 
 
            claimant.
 
            
 
            II. Claimant has the burden of proving by a preponderance of 
 
            the evidence that claimant received an injury arising out of 
 
            and in the course of employment.  The words "out of" refer 
 
            to the cause or source of the injury.  The words "in the 
 
            course of" refer to the time and place and circumstances of 
 
            the injury.  See generally, Cedar Rapids, Comm. Sch.  Dist. 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979);  Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            In the case sub judice, claimant established by the greater 
 
            weight of evidence that he suffered the work injury as 
 
            alleged.  The injury may have occurred at some other date in 
 
            February 1990 but is not viewed as critical to the showing.  
 
            Defendants were timely aware of the injury claim and the 
 
            specific date is not important to the rate determination 
 
            herein.
 
            
 
            III.  Claimant must next establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  
 
            Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors 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.  See Peterson v.Truck Haven Cafe, Inc. (Appeal 
 
            Decision, Feb. 28, 1985).
 
            In the case sub judice, it was found that claimant suffered 
 
            a 40 percent loss of his earning capacity as a result of the 
 
            work injury.  Such a finding entitles claimant to 200 weeks 
 
            of permanent partial disability benefits as a matter of law 
 
            under Iowa Code section 85.34(2)(u) which is 40 percent of 
 
            500 weeks, the maximum allowable number of weeks for an 
 
            injury to the body as a whole in that subsection. 
 
            Claimant's entitlement to permanent partial disability also 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            entitles him to weekly benefits for healing period under 
 
            Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically 
 
            capable of returning to substantially similar work to the 
 
            work he was performing at the time of injury; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Given the findings 
 
            as to when claimant was off work prior to reaching maximum 
 
            healing and the parties' stipulations, claimant is entitled 
 
            to healing period benefits from April 3, 1990 through April 
 
            8, 1990 and from April 10, 1990 through December 4, 1990.
 
            With reference to computing rate of weekly compensation, the 
 
            introductory paragraph of Iowa Code section 85.36 states as 
 
            follows:
 
            
 
            Weekly earnings means gross salary, wages, or earnings of an 
 
            employee to which such employee would have been entitled had 
 
            the employee worked the customary hours for the full pay 
 
            period in which the employee was injured, as regularly 
 
            required by the employee's employer for the work or 
 
            employment for which the employee was employed,...
 
            Thereafter, various subsections are contained in Iowa Code 
 
            section 85.36 which describe numerous alternative methods to 
 
            arrive at gross weekly earnings.  In the case at bar, many 
 
            subsections could apply.  As claimant was paid on a mileage 
 
            or output basis, Iowa Code section 85.36(6) should be 
 
            utilized which would average the earnings over the last 13 
 
            representative weeks.
 
             
 
             In determining the average wage over the 13 weeks before 
 
            the injury, the calculations for an owner/operator's income 
 
            are complicated because a major portion of the amounts 
 
            received is reimbursement for operating expenses of the 
 
            truck.  Use of the gross figure is inappropriate.  This 
 
            agency has recognized in the past a rough income estimate of 
 
            25 percent of gross.  D & C Exp., Inc. v. Sperry, 450 N.W.2d 
 
            842 (Iowa 1990).  However, we have the same evidence of 
 
            claimant's real income from his tax returns.  From these 
 
            records it was estimated that claimant's real earnings were 
 
            approximately $12,000 per year and a weekly rate was arrived 
 
            at by dividing that figure by the number of weeks in a year.  
 
            It was also found that claimant was entitled to take on one 
 
            exemption in addition to himself on his tax returns.  With a 
 
            gross rate of $230.77, single status and two exemptions, the 
 
            commissioner's rate booklet for an injury on February 26, 
 
            1990, sets forth a rate of compensation of $151.25. 
 
            IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).  As the condition was found work related, the party's 
 
            stipulations in the prehearing report entitle claimant to 
 
            the expenses requested in exhibit 2.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Claimant's failure to attend the section 85.39 examinaiton 
 
            is moot in light of the fact that an independent evaluation 
 
            was nevertheless issued.  No suspension of benefits is 
 
            appropriate.
 
            Defendants' failure to pay benefits on a voluntary basis 
 
            will not result in the imposition of a penalty.  Although 
 
            defendants' contention that claimant was not an employee was 
 
            ultimately determined to be incorrect and in fact defendants 
 
            had little evidence to justify their contention, it is 
 
            determined that nevertheless a fairly depatable question was 
 
            presented and a penalty is not appropriate.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            one hundred fifty-one and 25/l00 dollars ($151.25) per week 
 
            from December 5, 1990.
 
            That defendants shall pay to claimant the healing period 
 
            benefits from April 3, 1990 through April 8, 1990 and from 
 
            April 10, 1990 through December 4, 1990, at the rate of one 
 
            hundred fifty-one and 25/l00 dollars ($151.25) per week.
 
            That defendants shall pay the medical expenses listed in 
 
            exhibit 2 which total four thousand eight hundred thirty and 
 
            75/l00 dollars ($4,830.75).  Claimant shall be reimbursed 
 
            for any of these expenses paid by him.  Otherwise, 
 
            defendants shall pay the provider directly along with any 
 
            lawful late payment penalties imposed upon the account by 
 
            the provider.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum.
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            Defendants shall pay all other costs.
 
            That defendants shall file activity reports on the payment 
 
            of this award as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. Scott Bayne
 
            Attorney at Law
 
            3151 Brockway Road
 
            P O Box 810
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Waterloo, Iowa  50704
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            218 6th Avenue  Suite 300
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
                                                2002
 
                                                Filed March 31, 1993
 
                                                Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            RICHARD CATURIA,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 939795
 
            HEARTLAND EXPRESS,    
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            GREAT WEST CASUALTY COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            2002
 
            Under Iowa Code section 85.61(13)(c), relating to factors 
 
            employer must establish to show that a truck owner-operator 
 
            was an independent contractor and not an employee, affirmed 
 
            deputy's holding that the factor pertaining to which party 
 
            "bears the principal burden of the vehicle's operating 
 
            costs" refers to who ultimately bears the burden and not 
 
            just to who pays those costs initially.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD CATURIA,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 939795
 
            HEARTLAND EXPRESS,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            Caturia, claimant, against Heartland Express, employer 
 
            (hereinafter referred to as Heartland), and Great West 
 
            Casualty Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on February 26, 1990.  On February 3, 1992, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  Claimant is seeking temporary total or healing 
 
            period benefits from April 3, 1990 through April 8, 1990 and 
 
            from April 10, 1990 and defendants agree that he has not 
 
            worked for Heartland since April 10, 1990.
 
            
 
                 2.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 3.  At the time of injury claimant was single.
 
            
 
                 4.  With reference to the medical bills submitted by 
 
            claimant at the hearing, it was agreed that the providers 
 
            would testify that the charges and treatment were fair and 
 
            reasonable and defendants are not offering contrary evi
 
            dence.  It was also agreed that these expenses were causally 
 
            connected to the medical condition upon which the claim 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            herein is based, but that the issue of their causal connec
 
            tion to any work injury remains an issue to be decided 
 
            herein.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether an employer-employee relationship existed 
 
            between claimant and the alleged defendant-employer at the 
 
            time of the alleged injury;
 
            
 
                  II.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits, including the weekly rate of compensation; 
 
            and,
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the occurrence, nature and extent of 
 
            the injury and resulting disability.  From his demeanor 
 
            while testifying, claimant is credible.
 
            
 
                 Claimant worked for Heartland from November 1, 1988 
 
            until April 10, 1990, as an over-the-road driver of semi 
 
            tractor/trailer trucks.  His duties consisted of not only 
 
            driving but assisting in unloading cargo. According to his 
 
            personnel file, claimant was terminated from Heartland on 
 
            April 10, 1990, for failure to follow the "call in" proce
 
            dures set forth in the Drivers Manual provided to all 
 
            Heartland drivers.  It was also noted in the termination 
 
            memoranda that claimant had a poor attitude and was late in 
 
            getting in paperwork.  Promptness of turning in paperwork 
 
            was also a rule set forth in the Drivers Manual.
 
            
 
                 It is found that on the alleged date of injury, an 
 
            employer-employee relationship existed between Heartland and 
 
            claimant.  This finding is made despite the existence of a 
 
            written contract between Heartland and claimant purporting 
 
            to establish an independent contractor relationship as an 
 
            "owner/operator."  In this contract, dated November 1, 1988, 
 
            claimant agreed to provide, for Heartland's exclusive use, a 
 
            tractor purchased by claimant which would be dispatched 
 
            during the term of the contract by Heartland to pull trail
 
            ers and cargo for Heartland.  Heartland would collect the 
 
            revenue from the loads and pay claimant from 70.5 to 75 
 
            cents per mile, depending upon the load and mileage.  Under 
 
            this contract, claimant was to furnish the drivers but only 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            those approved by Heartland.  Also the contract required 
 
            claimant to pay all operating expenses, including tolls, 
 
            ferries, fuel, oil, taxes, traffic and weight fines, repairs 
 
            on the tractor, wages of all drivers, and workers' compensa
 
            tion insurance on drivers and helpers.  It specifically pro
 
            vided that claimant place on file with Heartland a current 
 
            certificate of insurance with respect to workers' compensa
 
            tion.  Claimant testified that he thought the contract pro
 
            vided that Heartland provide him with workers' compensation 
 
            coverage but that he was to provide such coverage for any 
 
            persons employed by him.  Apparently, no certification of 
 
            insurance was provided to Heartland.  Claimant's interpreta
 
            tion of the language contained in the contract is contrary 
 
            to its expressed language. It is also found that although 
 
            the contract provided that claimant timely complete and sub
 
            mit all logs and paperwork, there was no clause in this con
 
            tract setting forth any call in procedure.
 
            
 
                 Heartland had two classes of drivers during claimant's 
 
            employment, namely company drivers and owner/operators.  
 
            Company drivers were viewed by Heartland as their only 
 
            employees.  These company drivers received approximately 50 
 
            cents per mile less than owner/operators and they only drove 
 
            tractors purchased by Heartland.  These company drivers were 
 
            not expected to pay the operating costs of the tractor on 
 
            the road such as fuel and repairs.
 
            
 
                 In actuality, only claimant drove his tractor.  Prior 
 
            to entering into this contract, claimant was asked to com
 
            plete an employment application and to undergo drug testing.  
 
            DOT driver tests and an inquiry into past employment was 
 
            administered by Heartland management for both 
 
            owner/operators and company drivers.  After he was employed, 
 
            claimant underwent an orientation in which both company 
 
            drivers and owner/operators were trained together and 
 
            jointly informed on work rules contained in the Drivers 
 
            Manual.
 
            
 
                 There is insufficient evidence upon which to find that 
 
            claimant assumed the principle burden of the operating costs 
 
            of his tractor in his hauling relationship with Heartland.  
 
            It is true that claimant was expected to pay these costs as 
 
            they were incurred on the road.  However, he received an 
 
            extra 50 cents per hour from Heartland over what was paid by 
 
            company drivers and routinely received advancements each 
 
            week amounting to over $1,000 from Heartland sufficient to 
 
            cover these costs.  With the only possible exception of the 
 
            first trip in 1988, claimant never actually utilized his own 
 
            money in paying these operating costs while he was a driver 
 
            for Heartland.  The advancements were re-paid automatically 
 
            to Heartland at the time of load settlement at which time 
 
            advancement amount was simply deducted from claimant's per 
 
            mile load earnings.  The following week, claimant received 
 
            another advancement.  This arrangement does not appear mate
 
            rially different than a mileage reimbursement from any 
 
            employer for use of a personal vehicle by an employee.  
 
            Also, in this agency's specialized experience and expertise, 
 
            this arrangement is different from other owner/operator con
 
            tracts in that the pay is on a per mile basis rather than a 
 
            percentage of the revenue from the load.  Consequently, the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            extra 50 cents per mile amount received by owner/operators 
 
            at Heartland is much more commensurate with actual operating 
 
            expenses of the truck than a percentage of gross load 
 
            revenues.  This failure of proof was reinforced by the evi
 
            dence of control that Heartland exercised over claimant's 
 
            everyday duties.
 
            
 
                 The evidence fails to show that claimant, as the 
 
            owner/operator, determined the details and means of perform
 
            ing the hauling services.  In fact it is specifically found 
 
            that the details and means of performing claimant's hauling 
 
            service was determined by Heartland, not claimant.  A con
 
            siderable amount of control was exercised by Heartland over 
 
            claimant's work and such control was not significantly dif
 
            ferent than the control Heartland exercised over its company 
 
            drivers.  As stated above, claimant was expected to comply 
 
            with Heartland's Drivers Manual.  If fact, as stated above, 
 
            claimant was fired for failure to comply with this manual.
 
            
 
                 The tone of the relationship between claimant and 
 
            Heartland is established in the "Introduction" contained in 
 
            the Driver's Manual.  All drivers, be they company or 
 
            owner/operators, were expected to act in a manner and style 
 
            mandated by Heartland.  High emphasis was placed on having a 
 
            "cooperative" attitude.  Both on duty and off duty activi
 
            ties were controlled.  The body of the manual contains over 
 
            40 pages of detailed step-by-step instructions on almost 
 
            every aspect of hauling.  There were procedures mandating 
 
            when, where and in what circumstances drivers were to call 
 
            in to Heartland.  Detailed cash advance procedures were set 
 
            forth along with step-by-step instructions on how to handle 
 
            bills of lading, yellow delivery receipts, and damage 
 
            claims.  Only Heartland set up delivery time appointments 
 
            and many of these were mandatory without any opportunity for 
 
            input from any driver, company or otherwise, at Heartland.  
 
            The manual sets forth step-by-step instructions on trailer 
 
            pick up and dropping, what to do on multi-stop loads along 
 
            with specific guidance on customer relations.  All drivers 
 
            are instructed to weigh the load rather than risk fines and 
 
            the cost is incurred by Heartland.  Although more tolls were 
 
            re-paid to company drivers, owner/operators also were reim
 
            bursed for several tolls.  All drivers were directed to wash 
 
            truck units once a week at the expense of Heartland.  No 
 
            riders were allowed without Heartland's permission for both 
 
            company and owner/operator drivers.  There was an instruc
 
            tion to both company drivers and owner/operators as to when 
 
            to drive in bad weather.  Detailed step-by-step instructions 
 
            were given including routes used when hauling hazardous 
 
            materials.  Detailed procedures were provided on how to com
 
            plete driving logs and all were subject to review by safety 
 
            personnel at Heartland.  Step-by-step instructions were 
 
            given when an accident occurs.  A termination policy was set 
 
            forth.  There was even a detailed dress code in the manual 
 
            for all drivers regulating the length of scalp hair, facial 
 
            hair, use of language, use of jewelry, type of clothing and 
 
            a general requirement that all clothing be neat and in good 
 
            repair.  A safety bonus is given to both company drivers and 
 
            owner/operators.  Procedures are given for starting an 
 
            engine, parking, and how to take pressure off the fifth 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            wheel.  Finally, there was a detailed alcohol and drug abuse 
 
            policy regulating use of both legal and non-legal drugs.  On 
 
            page 41 use of alcohol 12 hours before going on duty was 
 
            prohibited.  All drivers were required to submit to drug 
 
            searches of their trucks and personal effects.
 
            
 
                 It may be true that claimant was allowed to pick the 
 
            route to the delivery point but this choice was restricted 
 
            by Heartland in several respects.  First, his fuel and 
 
            repair advance was limited.  He had to routinely call in to 
 
            report his location.  Only Heartland made delivery appoint
 
            ments.  Claimant had to explain any missed delivery appoint
 
            ment.  Claimant had no choice but to accept every load 
 
            assigned to him.
 
            
 
                 On the whole, claimant had very little control over the 
 
            details of his assigned work and there was little difference 
 
            between his relationship with Heartland and the relationship 
 
            between company drivers and Heartland.  What differences do 
 
            exist appear to be more form than substance.
 
            
 
                 On or about February 26, 1990, claimant injured his low 
 
            back while unloading household appliances as a Heartland 
 
            driver.  Claimant is somewhat unsure of the exact date.  His 
 
            drivers logs are inconsistent with such an injury date.  
 
            However, the paperwork on the load indicates that claimant 
 
            delivered appliances at approximately the date alleged.  
 
            Claimant admitted, as this agency has seen many times 
 
            before, that his logs often times were inconsistent with 
 
            actual driver practice.  Claimant explained that he com
 
            pleted the run at the time of the injury and was able to do 
 
            so only by taking rest breaks of a few minutes.  He then was 
 
            assigned an easier day run for a few days during which time 
 
            his back improved because he was able to rest each night.  
 
            However, claimant was then assigned a hard run mandating 
 
            driving all night and he again re-experienced low back pain 
 
            which failed to improve.
 
            
 
                 Claimant first sought treatment for complaints of low 
 
            back pain and leg pain from a chiropractor, Douglas E. 
 
            Jacot, D.C., and received a few adjustments in early April, 
 
            1990.  He then returned to the road and experienced more 
 
            pain.  Claimant again took off work.  Claimant was then ter
 
            minated for failing to call in.  Claimant states that he 
 
            informed Heartland dispatchers of his injury and condition.  
 
            This is found to be true.  In any event, the First Report of 
 
            Injury indicates that Heartland became aware of a claim of 
 
            injury by the end of April 1990.  It should be noted that 
 
            claimant was treated by Dr. Jacot a few months earlier in 
 
            July 1989 for low back pain radiating into the leg.  At that 
 
            time, Dr. Jacot prescribed a heel shim in the foot as he 
 
            felt that problem stemmed from a short leg.  At that time, 
 
            claimant complained of recurrent low back sprains over the 
 
            last ten years.
 
            
 
                 Claimant did not seek treatment for the work injury 
 
            herein from a medical doctor until May 11, 1989.  At that 
 
            time, he saw David Castleberg, M.D.  Dr. Castleberg wrote in 
 
            his office note that claimant had a prior injury one year 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            earlier.  Presumably this was a reference to the July 1989 
 
            injury.  Dr. Castleberg took a history from claimant of the 
 
            onset of back pain four weeks earlier and diagnosed back 
 
            sprain and possible disc protrusion.  He directed claimant 
 
            to stay off work and referred him to a neurosurgeon, Robert 
 
            A. Narotzky, M.D.
 
            
 
                 Dr. Narotzky began treating claimant in June 1990 and 
 
            this treatment to date has only involved conservative care 
 
            with rest and medication along with epidural steroid injec
 
            tions which somewhat improved claimant's condition.  
 
            However, with continued complaints from claimant as to per
 
            sistent pain upon activity, the last report from Dr. 
 
            Narotzky dated December 10, 1991, indicated that his current 
 
            treatment plan is aggressive physical therapy.  Claimant 
 
            testified that he completed this therapy program on January 
 
            2, 1992.  Claimant testified that his complaints are ongoing 
 
            and he desires additional treatment but has failed to show 
 
            what current treatment modality is suggested by Dr. Narotzky 
 
            or any other physician.
 
            
 
                 It is found that the work injury of February 26, 1990, 
 
            was a cause of a three percent permanent partial impairment 
 
            to the body as a whole.  This finding is based upon the 
 
            uncontroverted views of Dr. Narotzky in his December 1990 
 
            report.  Dr. Narotzky opines that the injury, as described 
 
            to him by claimant in February 1990, resulted in a disc pro
 
            trusion and his current disability and pain.  What is very 
 
            unclear in the record is any physical restrictions that may 
 
            have been imposed by Dr. Narotzky that may be still ongoing.
 
            
 
                 It is found that claimant reached maximum healing on 
 
            December 4, 1990, the date he was last seen by Dr. Narotzky 
 
            prior to his report of December 1990 in which he rated 
 
            claimant's permanent partial impairment.  Although some con
 
            tinuing therapy was prescribed, the doctor obviously felt 
 
            that such therapy would not change his rating.  It is also 
 
            found that claimant was not working between the time he left 
 
            Heartland on April 10, 1990 and the December 4, 1990 visit 
 
            with Dr. Narotzky.  Claimant admitted he worked in calendar 
 
            year 1991 but was not specific when.
 
            
 
                 Claimant states that he cannot physically return to 
 
            truck driving due to heavy lifting during unloading opera
 
            tions and due to prolonged sitting.  Claimant said that he 
 
            was told by the doctor not to return to truck driving and 
 
            seek vocational rehabilitation.  This is believed and found 
 
            to be true.  However, other occupations not requiring heavy 
 
            lifting are still open to claimant.  Even if he were 
 
            physically able to drive a truck, claimant lost his truck 
 
            due to an inability to maintain his truck loan payments.
 
            
 
                 Claimant has been employed on a part-time basis since 
 
            last spring.  This involves filling in for an assistant to a 
 
            crop duster by mixing and loading chemicals.  This job only 
 
            involved weekends.  Claimant denies this work required heavy 
 
            lifting.  Claimant states that he does other odd jobs and 
 
            helps his girl friend who owns a store.  Claimant's earnings 
 
            were less than $4,000 last year.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's medical condition before the work injury was 
 
            not excellent and had recurrent episodes of back sprains.  
 
            However, it was not until the work injury of February 26, 
 
            1990 herein that he was compelled to leave truck driving.  
 
            Claimant's only past employment has been in construction 
 
            work and truck driving, the work he can no longer perform 
 
            and for which is best suited.  Claimant is 42 years of age 
 
            and has a high school education. Claimant has limited poten
 
            tial for vocational rehabilitation given his age and past 
 
            experience.
 
            
 
                 However, claimant does not appear highly motivated to 
 
            seek alternative, suitable employment and appears content to 
 
            take assistance from others.  He has only applied for a few 
 
            full time jobs many of which appear clearly unsuited for 
 
            him.  On the other hand, claimant was significantly disabled 
 
            through no fault of his own.  Heartland has done little to 
 
            assist claimant in any return to work.
 
            
 
                 Although claimant received gross income of over $50,000 
 
            per year from Heartland, his net income, after expenses, as 
 
            reflected by his income tax returns at the time of injury 
 
            was approximately only $12,000 per year.  Such a figure is 
 
            not markedly different if we utilized the 25 percent indus
 
            try wide standard recognized by this agency for 
 
            owner/operators in estimating their real earnings.
 
            
 
                 Due to resulting permanent impairment and primarily an 
 
            inability to return to truck driving, the work injury of 
 
            February 26, 1990, was a cause of a 40 percent loss of 
 
            claimant's earning capacity.
 
            
 
                 With reference to computing claimant's weekly gross 
 
            rate of compensation, claimant's gross earnings, based upon 
 
            his annual income from 1989 was $230.77 per week or the sum 
 
            of $12,000 per annum divided by 52 weeks.  Claimant was sin
 
            gle.  He is entitled to take only one exemption in addition 
 
            to himself for the support of one child on his tax returns 
 
            and regularly did so prior to 1990.  Claimant may have con
 
            tributed to the support of his other children but was not 
 
            entitled to claim same on his returns.
 
            
 
                 It is recognized that Dr. Narotzky has indicated that 
 
            claimant's condition may worsen in the future requiring 
 
            additional treatment including surgery.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  Claimant must establish that an employee-employer 
 
            relationship existed at the time period he alleges to have 
 
            incurred his work-related injury.  Only employees are enti
 
            tled to compensation for work-related injuries and occupa
 
            tional diseases under Chapter 85 of the Iowa Code.  The Iowa 
 
            Supreme Court stated in Nelson v. Cities Service Oil Co., 
 
            259 Iowa 1209, 1213, 146 N.W.2d 261 (1967) as follows:
 
            
 
                 This court has consistently held it is a 
 
                 claimant's duty to prove by a preponderance of the 
 
                 evidence he or his decedent was a workman or 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 employee within the meaning of the law, and he or 
 
                 his decedent received an injury which arose out of 
 
                 and in the course of employment.  See section 
 
                 85.61, Code, 1962.
 
            
 
                 And, if a compensation claimant establishes a 
 
                 prima facie case the burden is then upon defendant 
 
                 to go forward with the evidence and overcome or 
 
                 rebut the case made by claimant.  He must also 
 
                 established by a preponderance of the evidence any 
 
                 pleaded affirmative defense or bar to compensa
 
                 tion. (citations omitted)
 
            
 
                 The Iowa Supreme Court has recognized five factors in 
 
            determining whether or not an employer-employee relationship 
 
            exists:  1) the right of selection, or to employ at will; 2) 
 
            responsibility for payment of wages by the employer; 3) the 
 
            right to discharge or terminate the relationship; 4) the 
 
            right to control the work; and, 5) identity of the employer 
 
            as the authority in charge of the work or for whose benefit 
 
            it is performed.  The overriding issue is the intention of 
 
            the parties.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 
 
            503 (Iowa 1981).  In the Caterpillar Tractor case, the court 
 
            added that the primary purpose of the workers' compensation 
 
            statute is to benefit the worker insofar as the statute per
 
            mits and should be interpreted liberally with the view 
 
            toward that objective.  The court stated as follows at 506:
 
            
 
                 [T]he statute is intended to cast upon the indus
 
                 try in which the worker is employed a share of the 
 
                 burden resulting from industrial accidents....As a 
 
                 result, "any worker whose services form a regular 
 
                 and continuing part of the cost of the product, 
 
                 and whose method of operation is not such an inde
 
                 pendent business that it forms in itself a sepa
 
                 rate route through which his own costs of indus
 
                 trial accident can be channeled, is within the 
 
                 presumptive area of intended protection.  
 
                 (citation omitted)
 
            
 
                 If a claimant has established a prima facie case for an 
 
            employer-employee relationship, the defendant may assert the 
 
            affirmative defense that claimant was an independent con
 
            tractor or a partner.  The Iowa legislature has provided the 
 
            following statutory test in Iowa Code section 85.61(3)(c) to 
 
            determine the independent contractor status for 
 
            owner/operators.  Such persons are to be considered indepen
 
            dent contractors if all of the following conditions are sub
 
            stantially present:
 
            
 
                 1.  The owner/operator is responsible for the mainte
 
            nance of the vehicle.
 
            
 
                 2.  The owner/operator bears the principal burden of 
 
            the vehicle's operating costs including fuel, repairs, sup
 
            plies, collision insurance, and personal expenses for the 
 
            operator while on the road.
 
            
 
                 3.  The owner/operator is responsible for supplying the 
 
            necessary personnel to operate the vehicle, and the person
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            nel are considered the owner/operator's employees.
 
            
 
                 4.  The owner/operator's compensation is based on fac
 
            tors related to the work performed, including a percentage 
 
            of any schedule of rates or lawfully published tariff, and 
 
            not the basis of the hours or time expended.
 
            
 
                 5.  The owner/operator determines the details and means 
 
            of performing the services, in conformance with regulatory 
 
            requirements, operating procedures of the carrier, and spec
 
            ifications of the shipper.
 
            
 
                 6.  The owner/operator enters into a contract which 
 
            specifies the relationship to be that of an independent con
 
            tractor and not that of an employee and requires the 
 
            owner/operator to provide and maintain a certificate of 
 
            workers' compensation insurance with the carrier.
 
            
 
                 In the case sub judice,  claimant established a prima 
 
            facie case that he was an employee and met each of the ini
 
            tial employment relationship tests set forth above.  
 
            Defendants on the other hand failed to establish criteria 
 
            tests 2 and 5 of Iowa Code section 85.61(3)(c), especially 
 
            criteria 5 with reference to control over the details of 
 
            claimant's work.  Use of the term "principal burden" in cri
 
            teria 2 by the legislature was viewed as unique and a refer
 
            ence not to just who pays these expenses initially, but who 
 
            bears the real economic burden in the relationship at issue 
 
            herein.  In this case, the burden was found to fall on the 
 
            carrier, not claimant.
 
            
 
                 II. Claimant has the burden of proving by a preponder
 
            ance of the evidence that claimant received an injury aris
 
            ing out of and in the course of employment.  The words "out 
 
            of" refer to the cause or source of the injury.  The words 
 
            "in the course of" refer to the time and place and circum
 
            stances of the injury.  See generally, Cedar Rapids, Comm. 
 
            Sch.  Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979);  Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments. A work connected injury which 
 
            more than slightly aggravates the condition is considered to 
 
            be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 In the case sub judice, claimant established by the 
 
            greater weight of evidence that he suffered the work injury 
 
            as alleged.  The injury may have occurred at some other date 
 
            in February 1990 but is not viewed as critical to the show
 
            ing.  Defendants were timely aware of the injury claim and 
 
            the specific date is not important to the rate determination 
 
            herein.
 
            
 
                 III.  Claimant must next establish by a preponderance 
 
            of the evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause a permanent phys
 
            ical impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v.Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  
 
            Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately 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.  See Peterson v.Truck Haven Cafe, Inc. (Appeal 
 
            Decision, Feb. 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 40 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 200 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 40 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            he was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Given the findings 
 
            as to when claimant was off work prior to reaching maximum 
 
            healing and the parties stipulations, claimant is entitled 
 
            to healing period benefits from April 3, 1990 through April 
 
            8, 1990 and from April 10, 1990 through December 4, 1990.
 
            
 
                 With reference to computing rate of weekly compensa
 
            tion, the introductory paragraph of Iowa Code section 85.36 
 
            states as follows:
 
            
 
                 Weekly earnings means gross salary, wages, or 
 
                 earnings of an employee to which such employee 
 
                 would have been entitled had the employee worked 
 
                 the customary hours for the full pay period in 
 
                 which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was 
 
                 employed,...
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Thereafter, various subsections are contained in Iowa 
 
            Code section 85.36 which describe numerous alternative meth
 
            ods to arrive at gross weekly earnings.  In the case at bar, 
 
            many subsections could apply.  As claimant was paid on a 
 
            mileage or output basis, Iowa Code section 85.36(6) should 
 
            be utilized which would average the earnings over the last 
 
            13 representative weeks.
 
            
 
                  In determining the average wage over the 13 weeks 
 
            before the injury, the calculations for an owner/operator's 
 
            income are complicated because a major portion of the 
 
            amounts received is reimbursement for operating expenses of 
 
            the truck.  Use of the gross figure is inappropriate.  This 
 
            agency has recognized in the past a rough income estimate of 
 
            25 percent of gross.  D & C Exp., Inc. v. Sperry, 450 N.W.2d 
 
            842 (Iowa 1990).  However, we have the same evidence of 
 
            claimant's real income from his tax returns.  From these 
 
            records it was estimated that claimant's real earnings were 
 
            approximately $12,000 per year and a weekly rate was arrived 
 
            at by dividing that figure by the number of weeks in a year.  
 
            It was also found that claimant was entitled to take on one 
 
            exemption in addition to himself on his tax returns.  With a 
 
            gross rate of $230.77, single status and two exemptions, the 
 
            commissioner's rate booklet for an injury on February 26, 
 
            1990, sets forth a rate of compensation of $151.25. 
 
            
 
                 IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).  As the condition was found work-related, the party's 
 
            stipulations in the prehearing report entitle claimant to 
 
            the expenses requested in exhibit 2.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            one hundred fifty-one and 25/l00 dollars ($151.25) per week 
 
            from December 5, 1990.
 
            
 
                 2.  Defendants shall pay to claimant the healing period 
 
            benefits from April 3, 1990 through April 8, 1990 and from 
 
            April 10, 1990 through December 4, 1990, at the rate of one 
 
            hundred fifty-one and 25/l00 dollars ($151.25) per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            exhibit 2 which total four thousand eight hundred thirty and 
 
            75/l00 dollars ($4,830.75).  Claimant shall be reimbursed 
 
            for any of these expenses paid by him.  Otherwise, defen
 
            dants shall pay the provider directly along with any lawful 
 
            late payment penalties imposed upon the account by the 
 
            provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. Scott Bayne
 
            Attorney at Law
 
            3151 Brockway Road
 
            P O Box 810
 
            Waterloo, Iowa  50704
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            218 6th Avenue  Suite 300
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 2002
 
                                          Filed March 6, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD CATURIA,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 939795
 
            HEARTLAND EXPRESS,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            2002 - Owner/Operator Truckers
 
            
 
                 Held that defendants failed to meet their burden to 
 
            establish all of the criteria contained in Iowa Code section 
 
            85.61(3)(c) to establish that claimant was a independent 
 
            contractor.  Although there was a contract specifying an 
 
            independent contractor relationship and providing for filing 
 
            of an insurance certificate with the carrier, it was found 
 
            that the carrier, not the claimant, assumed the principal 
 
            burden of operating expenses of the truck by paying 50 cents 
 
            per mile to owner/operators over the amount paid to its com
 
            pany drivers and through a regular advancement system that 
 
            used the carriers' money, not claimant, to pay the expenses.  
 
            The most critical finding was that the carrier controlled 
 
            the details of claimant's work with use of very extensive 
 
            work rules applicable to both company and owner/operator 
 
            drivers, including a fairly rigid dress code and a drug 
 
            abuse policy to control drug and alcohol use while on and 
 
            off duty.  Claimant was terminated after reporting his work 
 
            injury for violating one of these work rules pertaining to 
 
            calling in.
 
            
 
                 
 
            5-1803 - Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOHN HUME,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :     File Nos. 939838
 
            vs.                           :               981312 
 
                                          :     
 
            AMERICAN COALS CORP.,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by John 
 
            Hume, claimant, against American Coals Corp., employer, and 
 
            CNA Insurance Companies, insurance carrier, defendants, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injuries sustained on October 12, 1989 and 
 
            November 9, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on October 
 
            29, 1992, in Des Moines, Iowa.  The record was considered 
 
            fully submitted at the close of the hearing.  The claimant 
 
            was present and testified.  Also present and testifying were 
 
            Earl Read and Kent Jayne.  The documentary evidence 
 
            identified in the record consists of joint exhibits 1-20.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            October 29, 1992, the parties have presented the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant sustained injuries on October 12, 
 
            1989 and November 9, 1989, arising out of and in the course 
 
            of employment with employer;
 
            
 
                 2.  Whether said injuries are a cause of temporary and 
 
            permanent disability;
 
            
 
                 3.  The extent of entitlement to temporary total or 
 
            healing period benefits;
 
            
 
                 4.  The commencement date for permanent partial 
 
            disability benefits;
 
            
 
                 5.  Claimant's entitlement to medical benefits under 
 
            Iowa Code section 85.27; and
 
            
 
                 6.  Whether claimant is entitled to penalty benefits 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            under Iowa Code section 86.13(4).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on December 3, 1951, and completed 
 
            the twelfth grade of school in 1969.  His work history has 
 
            been primarily as a heavy equipment operator.  Claimant 
 
            commenced working for employer in October 1986.  He has not 
 
            been employed since April 1990. 
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant received chiropractic treatment for low back pain 
 
            in early 1972.  In 1987 when he transferred from Dr. Haskins 
 
            to T.H. Stanzel, D.C., he had been his patient for 15 years.  
 
            Dr. Stanzel became claimant's treating chiropractor in 1987.  
 
            His progress notes indicate that manipulations were 
 
            performed on the area of T-6 through April 5, 1990, and in 
 
            the area of T-4 beginning on April 11, 1990 (exhibits 1 and 
 
            2).
 
            
 
                 Claimant has also been followed by Matt Whitis, M.D., 
 
            at the Family Medical Center in Oskaloosa, Iowa, since April 
 
            18, 1987, for various medical problems.  On October 12, 
 
            1989, claimant presented to Dr. Whitis with a 24-hour 
 
            history of right-sided back pain which he felt was a kidney 
 
            infection.  He reported that while driving an end loader he 
 
            experienced back pain when going over bumps.  Dr. Whitis 
 
            diagnosed probable musculoskeletal pain and gave claimant 
 
            several samples of Dolobid.  He took him off work for the 
 
            weekend and told him to call if his condition had not 
 
            improved in three days (ex. 3, page 12).
 
            
 
                 Claimant conferred with Dr. Whitis on November 9, 1989, 
 
            with complaints of lower back pain.  Dr. Whitis prescribed 
 
            Dolobid and Flexeril and took claimant off work for the 
 
            weekend. (ex. 3, p. 12).  Claimant returned to Dr. Whitis on 
 
            November 13, 1989.  He stated that he was much better.  He 
 
            was able to deer hunt over the weekend which involved a lot 
 
            of walking and hiking up hills.  Dr. Whitis felt that 
 
            claimant's back strain was resolving.  He recommended a 
 
            continuation of Dolobid and back exercises (ex. 3, p. 14).
 
            
 
                 Claimant testified that his back pain did not resolve.  
 
            On recommendation from a friend, claimant saw William R. 
 
            Boulden, M.D., on November 28, 1989.  On examination, he had 
 
            back pain on extension.  He had slightly decreased lateral 
 
            bending and right lateral bending, but not much pain.  
 
            Patellar reflexes and ankle reflexes were equal and 
 
            symmetrical.  Straight leg raising was negative.  Motor 
 
            strength was normal and Lasague's sign was negative.  
 
            According to Dr. Boulden, lumbar spine films showed 
 
            significant disc space narrowing throughout the lumbar spine 
 
            with a lot of osteophyte formation in the anterior vertebra 
 
            and facet degeneration.  Dr. Boulden's impression was, 
 
            "Moderately advanced degenerative disc disease and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            osteoarthritic spurring of the lumbar spine."  Conservative 
 
            therapy was recommended including weight loss, physical 
 
            therapy and spinal stability (ex. 8, p. 1).  
 
            
 
                 On December 5, 1989, claimant presented to Thomas A. 
 
            Wheatley, physical therapist, for evaluation.  A 
 
            stabilization exercise program was initiated in order to 
 
            increase strength and coordination.  Claimant underwent 
 
            treatment on December 5 and December 14, 1989.  Treatment 
 
            scheduled for January 10, 1990, was canceled because it was 
 
            not authorized by the workers' compensation carrier (ex. 5, 
 
            pp. 1-3).
 
            
 
                 After seeing Dr. Boulden, claimant returned to Dr. 
 
            Whitis on December 22, 1989.  On examination, claimant had 
 
            full range of motion of the lumbosacral spine.  X-rays of 
 
            the thoracic spine showed no significant degenerative 
 
            changes.  Dr. Whitis diagnosed myofascial pain and back 
 
            pain.  He recommended that claimant continue on a work 
 
            hardening program (ex. 3, p. 14).
 
            
 
                 Claimant testified that after being examination by Dr. 
 
            Boulden on November 28, 1989, he was sent back to work with 
 
            restrictions.  However, there is nothing in Dr. Boulden's 
 
            report or Mr. Wheatley's report indicating the imposition of 
 
            physical restrictions.  Claimant testified that he requested 
 
            from Dr. Boulden a written statement as to his physical 
 
            restrictions for presentation to employer.  The record 
 
            contains a note dated December 12, 1989, signed by Marie 
 
            Krese P.A-C.  This note states that claimant is restricted 
 
            from lifting, twisting, bending, pushing or pulling with his 
 
            back, and sitting or standing for more than 45 minutes at a 
 
            time (ex. 8, p. 4).  Claimant testified that he received 
 
            this note in the mail and gave it to his foreman, Earl Read, 
 
            on December 19, 1989.  Mr. Read testified that claimant was 
 
            sent home from work on December 20, 1989, because employer 
 
            had no work for him to perform within his restrictions.  Mr. 
 
            Read further testified that he was later contacted by 
 
            insurance carrier and told to offer claimant light duty 
 
            work.  Therefore, he called claimant on February 1, 1990, 
 
            and told him to return to work.  Claimant was assigned to 
 
            the loadout facility.  His work consisted of pushing a few 
 
            buttons to turn on a conveyor belt.  Claimant complained 
 
            that sitting in a chair at the loadout facility and climbing 
 
            stairs hurt his lower back. 
 
            
 
                 Claimant returned to physical therapy on January 31, 
 
            1990.  At that time, he complained that his leg pain 
 
            increased when doing exercises and, therefore, he stopped 
 
            doing them.  On March 13, 1990, he told Mr. Wheatley that 
 
            every time he did the exercises he could not sleep at night.  
 
            Again, it was recommended that he become more active by 
 
            walking and swimming (ex. 5, p. 3).
 
            
 
                 On April 6, 1990, claimant was laid off by employer due 
 
            to a lack of work.  Claimant testified that he has not 
 
            looked for work since being laid off.  Claimant filed an 
 
            E.E.O.C. complaint alleging that employer discriminated 
 
            against him due to his physical disability.  On preliminary 
 
            review, claimant's complaint was denied on November 28, 1990 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (ex. 16, pp. 88-89).
 
            
 
                 On June 1, 1990, claimant underwent an intake interview 
 
            with Audrey Nichols, counselor, with Iowa Vocational 
 
            Rehabilitation Services.  On July 2, 1990, his case file was 
 
            transferred for review and scheduling of a vocational 
 
            evaluation and psychological testing (ex. 9).
 
            
 
                 Claimant enrolled at the Iowa State Vocational 
 
            Rehabilitation Facility on August 27, 1990, and was 
 
            discharged on September 14, 1990.  During the course of 
 
            evaluation, claimant participated in a practice ACT test and 
 
            obtained a composite score of 20.75 in English, mathematics, 
 
            reading, and science reasoning.  The average ACT composite 
 
            score in Iowa is 21.8.  His test results showed a potential 
 
            for college level work (ex. 16, p. 69).
 
            
 
                 A computer assessment evaluation on September 19, 1990, 
 
            showed that claimant has a strong potential for working with 
 
            computers.  It was noted that he worked for long periods of 
 
            time during the afternoon trying to develop basic knowledge 
 
            and skill in various computer programs (ex. 16, p. 73).
 
            
 
                 In addition to the above testing, claimant underwent a 
 
            psychological evaluation on September 10, 1990, by James 
 
            Prickett.  On the Wechsler Adult Intelligence Scale Revised, 
 
            he obtained a verbal I.Q. score of 119, a performance I.Q. 
 
            of 124, and a full-scale I.Q. score of 124.  His nonverbal 
 
            and overall skills were superior at the ninety-fifth 
 
            percentile.  Very superior scores were obtained on measures 
 
            of practical, verbal, arithmetic skills, visual-motor 
 
            skills, and constructive imagination.  Tests of sequential 
 
            thinking, social awareness, spatial reasoning, fund of 
 
            general knowledge, and immediate auditory memory were all 
 
            superior.  Test results indicate that claimant functions 
 
            within the superior range of intelligence (ex. 16, pp. 
 
            77-78).  Claimant appeared able to physically tolerate the 
 
            sedentary, paper and pencil activities of testing for 
 
            approximately one hour and only voiced a complaint the last 
 
            day of class when he stood up and held his back explaining 
 
            that he was paying for the ping pong the night before (ex. 
 
            16, p. 69).
 
            
 
                 At the time of discharge from the vocational facility, 
 
            claimant manifested no interest in participating in a 
 
            formalized educational or part-time work program (ex. 16, 
 
            pp. 61-62).
 
            
 
                 The record indicates that on September 26, 1990, 
 
            claimant filed an application for social security disability 
 
            benefits.  Pursuant to this application, claimant was sent 
 
            by the social security administration to Dr. Whitis, his 
 
            treating physician, for evaluation on December 21, 1990.  
 
            Dr. Whitis noted that claimant has a long history of back 
 
            pain throughout his lumbar spine and thoracic spine.  On 
 
            examination, he seemed moderately uncomfortable with any 
 
            exertion.  His back was limited to 30 degrees of forward 
 
            flexion and 5 degrees of backward extension.  He had 15 
 
            degrees of lateral bending, mostly in the thoracic spine, 
 
            but very little motion in the lumbar spine.  Based on 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant's subjective complaints, Dr. Whitis indicated that 
 
            he is unable to tolerate standing, moving about, walking, 
 
            sitting, lifting, carrying, stooping, climbing, kneeling, 
 
            and crawling without back pain (ex. 3, p. 16).
 
            
 
                 On February 26, 1991, Dr. Boulden reported that he last 
 
            saw claimant on February 20, 1990.  He stated that 
 
            claimant's degenerative disc disease precludes him from 
 
            performing his past work as a heavy equipment operator.  He 
 
            recommended vocational rehabilitation and a job which does 
 
            not require prolonged sitting and standing, twisting, 
 
            bending, and lifting (ex. 8, p. 6).  
 
            
 
                 Claimant was also referred by the Social Security 
 
            Administration to J.M. Gaffney, Ph.D., clinical 
 
            psychologist, for a mental status evaluation on April 19, 
 
            1991.  Claimant related to Dr. Gaffney that he was unable to 
 
            participate adequately in a vocational rehabilitation 
 
            sponsored retraining program because pain and fatigue eroded 
 
            his ability to concentrate.  Claimant also reported that 
 
            during an average day, he watches television, reads some, 
 
            does light housekeeping, takes a ride in his pickup, goes 
 
            fishing for an hour or two, and goes drinking once in a 
 
            while.  On examination, his immediate recall, concentration 
 
            and short-term memory appeared to be within normal limits.  
 
            Also, orientation, thought process, judgment, and content 
 
            were within normal limits.  Claimant reported an increase in 
 
            alcohol consumption and a 40 to 50 pound weight gain in the 
 
            past four months.  Based upon this interview, Dr. Gaffney 
 
            stated that a diagnosis of dysthymia secondary to chronic 
 
            pain seems appropriate (ex. 4, pp. 1-3).  
 
            
 
                 The Social Security Administration also sent claimant 
 
            to B.C. Hillyer, M.D., for evaluation.  The record contains 
 
            what appears to be an incomplete one page report from Dr. 
 
            Hillyer and, therefore, such report cannot be given weight 
 
            and consideration (ex. 4, p. 4).
 
            
 
                 The record indicates that on July 22, 1992, claimant 
 
            presented to Unionville Family Clinic requesting pain 
 
            medication.  Progress notes are illegible and the 
 
            undersigned cannot decipher what was prescribed or who 
 
            ordered the prescription (ex. 7, p. 1).  However, in exhibit 
 
            14, pages 2-4, there is a medical bill from Mark S. O'Brien, 
 
            D.O., and drug prescriptions ordered on July 22, 1992 and 
 
            September 16, 1992.
 
            
 
                 Claimant was referred by insurance carrier to Thomas W. 
 
            Bower, P.T., for evaluation.  Mr. Bower also testified in a 
 
            deposition on October 14, 1992.  He stated that he saw 
 
            claimant on one occasion for the purpose of a functional 
 
            capacity evaluation.  The purpose of this evaluation was to 
 
            determine claimant's function and ability to perform work 
 
            tasks, such as lifting, carrying, etc.  He noted that during 
 
            the course of examination, claimant lifted 50 pounds from a 
 
            floor position to a chest height position, carried 40 pounds 
 
            and pushed/pulled 140 pounds.  However, testing indicated 
 
            that the ideal weight for claimant to lift is 33 pounds.  
 
            Mr. Bower concluded that claimant is deconditioned and would 
 
            benefit from a stabilization program, such as the one he 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            started with Mr. Wheatley.  He felt that claimant's obesity 
 
            is a factor contributing to his deconditioning, but not the 
 
            total explanation of his limited functioning (exs. 6 & 19).  
 
            
 
                 Claimant was also referred by insurance carrier to Kent 
 
            A. Jayne, vocational rehabilitation specialist, for 
 
            evaluation.  However, claimant refused to be interviewed or 
 
            make himself available to Mr. Jayne and indicated an 
 
            unwillingness to participate in vocational rehabilitation 
 
            services.  Therefore, Mr. Jayne made an assessment based 
 
            upon his review of claimant's medical and vocational 
 
            records.  Mr. Jayne must have had Dr. Hillyer's complete 
 
            report because he reports that Dr. Hillyer found that 
 
            claimant would be able to handle a light duty job or a job 
 
            where he was sitting at least part of the day.  He noted 
 
            that physicians who have treated and examined claimant agree 
 
            that he is capable of performing light work activity.  When 
 
            considering claimant's residual functional capacity, in 
 
            conjunction with his demonstrated aptitude on I.Q. testing, 
 
            Mr. Jayne identified light duty jobs which he felt claimant 
 
            would be able to perform.  Mr. Jayne's testimony was 
 
            basically similar to his written report (ex. 10).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained injuries to his back on October 12, 1989 and 
 
            November 9, 1989, which arose out of and in the course of 
 
            employment with employer.  
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on October 12, 
 
            1989 and November 9, 1989, which arose out of and in the 
 
            course of his employment. McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central 
 
            Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967).  The words 
 
            "arising out of" have been interpreted to refer to the cause 
 
            and origin of the injury.  McClure v. Union County, 188 
 
            N.W.2d 283, 287 (Iowa 1971);   Crowe v. DeSoto Consolidated 
 
            School District, 68 N.W.2d 63, 65 (Iowa 1955).  The words 
 
            "in the course of" refer to the time, place and 
 
            circumstances of the injury.  McClure, 188 N.W.2d at 287; 
 
            Crowe, 68 N.W.2d at 65.  An injury occurs in the course of 
 
            the employment when it is within the period of employment at 
 
            a place the employee may reasonably be, and while the 
 
            employee is doing work assigned by the employer or something 
 
            incidental to it.  Cedar Rapids Community School District v. 
 
            Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d 
 
            at 287; Musselman, 154 N.W.2d at 130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 Defendants contend that claimant did not sustain a back 
 
            injury while in the employ of employer, but instead has a 
 
            long history of back complaints and chiropractic treatment 
 
            unrelated to his work activity.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 The greater weight of the evidence supports the finding 
 
            that claimant's preexisting back condition was clearly 
 
            aggravated on October 12, 1989 and on November 9, 1989.  
 
            Claimant was treated on both occasions by Dr. Whitis.  
 
            Defendants have presented no evidence that his back 
 
            condition was aggravated by other than his employment with 
 
            employer.  Accordingly, claimant has met his burden of 
 
            proof.  
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injuries caused temporary disability and, if so, the extent 
 
            of entitlement to weekly compensation for temporary total 
 
            disability or healing period benefits.
 
            
 
                 Healing period benefits may be characterized as that 
 
            period during which there is a reasonable expectation of 
 
            improvement of a disabling condition and ends when maximum 
 
            medical improvement is reached.  Armstrong Tire & Rubber Co. 
 
            v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code section 85.34(1) (1991), the Kubli court observed 
 
            that recuperation refers to that condition in which healing 
 
            is complete and the extent of the disability can be 
 
            determined.  Kubli, 312 N.W.2d at 65.  The healing period 
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury.  Kubli, 312 N.W.2d 
 
            at 65.  When a permanent rating is given, it indicates that 
 
            the physician does not expect the claimant to improve and 
 
            this conclusion meets the criteria of Iowa Code section 
 
            85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124, 126 (Ia. Ct. App. 1984).  The finding of a 
 
            termination of healing period necessarily precludes the 
 
            discussion of the running award.  Hoskins v. Quaker Oats, 
 
            Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181, 
 
            185 (App. 1985).  Since the healing period contemplates an 
 
            inability to work, a healing period cannot start until 
 
            claimant leaves work.  This is true even if claimant is 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            experiencing symptoms on the job but does not leave work for 
 
            a variety of reasons.  Boyd v. Western Home, file number 
 
            890207 (Iowa Industrial Commissioner App. June 26, 1991).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 The evidence clearly demonstrates that claimant lost no 
 
            time from work as a result of his back injury until he was 
 
            laid off by employer on December 20, 1989.  On November 28, 
 
            1989, Dr. Boulden diagnosed claimant with moderately 
 
            advanced degenerative disc disease and osteoarthritic 
 
            spurring of the lumbar spine.  At this time, he recommended 
 
            conservative therapy and imposed no physical restrictions.  
 
            It was not until December 12, 1989, that a physician's 
 
            assistant in Dr. Boulden's office wrote a note stating that 
 
            claimant is restricted as to lifting, twisting, bending, 
 
            pushing, or pulling with his back and sitting or standing 
 
            for more than 45 minutes at a time.  Claimant presented 
 
            these restrictions to employer on December 19, 1989, and he 
 
            was laid off on December 20, 1989, because work was not 
 
            available within these restrictions.  Claimant remained off 
 
            work through January 31, 1990.  On February 1, 1990, 
 
            employer returned him to light duty work.  Claimant worked 
 
            until April 1990, when he was again laid off allegedly due 
 
            to a lack of work at the plant.
 
            
 
                 The greater weight of the evidence in this case 
 
            supports the finding that claimant's healing period began on 
 
            December 20, 1989, and continued through January 31, 1990.  
 
            Therefore, claimant is entitled to healing period benefits 
 
            during that period of time.
 
            
 
                 The next issue to be determined is whether claimant's 
 
            back injury has caused permanent disability.  
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injuries 
 
            of October 12, 1989 and November 9, 1989, are causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  
 
            Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  
 
            A possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
            738 (Iowa 1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Expert medical evidence must be considered with all other 
 
            evidence introduced bearing on the causal connection.  Burt, 
 
            73 N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, 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 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The only medical practitioner addressing the issue of 
 
            causation is Dr. Boulden.  He clearly states that claimant's 
 
            work activity with employer aggravated his preexisting back 
 
            condition.  Defendants presented no evidence to the 
 
            contrary.  Dr. Boulden also stated that claimant has a 
 
            permanent impairment which precludes him from performing 
 
            heavy physical labor (ex. 8, p. 7).  However, neither Dr. 
 
            Boulden nor any other physician has rated claimant's 
 
            permanent impairment.  Nevertheless, there is an agreement 
 
            among medical and vocational experts that claimant is 
 
            limited to light work activity.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant was born on December 3, 1951, and was 38 years 
 
            old when he was injured.  He is currently 40 years old.  
 
            Claimant's back impairment precludes him from performing his 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            past work activity as a heavy equipment operator.  At this 
 
            age, claimant's industrial disability is mitigated because 
 
            of the fact that he is young enough to seek vocational 
 
            rehabilitation assistance and to be retrained for several 
 
            occupations in the national economy.  Becke v. Turner-Busch, 
 
            Inc., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 34 (Appeal Decision  1979); Walton v. B & H 
 
            Tank Corp., II Iowa Industrial Commissioner Report 426 
 
            (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (App. Dec. 1989).  
 
            
 
                 Claimant is a high school graduate.  He attended a 
 
            vocational-technical school and received a certificate in 
 
            air conditioning, refrigeration and heating.  Psychological 
 
            testing indicates that claimant functions in the superior 
 
            range of intelligence and has the potential for college 
 
            education.  Despite his contentions to the contrary, 
 
            academic test results indicate strengths in reading, overall 
 
            basic mathematics, mechanical reasoning, space relations, 
 
            dexterities, sorting and discrimination, fine color 
 
            perception, economics, bookkeeping, and independent problem 
 
            solving (ex. 16, p. 67).  Claimant's demonstrable aptitude 
 
            indicates that he is capable of being retrained.  Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).
 
            
 
                 Employer offered claimant private vocational 
 
            rehabilitation and he declined both private vocational 
 
            rehabilitation assistance and the State of Iowa vocational 
 
            rehabilitation assistance program.  Thus, claimant's 
 
            motivation to be retrained or re-enter the employment market 
 
            is questionable.  Schell v. Central Engineering Company, 232 
 
            Iowa 421 4 N.W.2d 399 (1942).
 
            
 
                 Claimant testified that he has not seriously looked for 
 
            work since being laid off by employer in April 1990.  
 
            Claimant insists that his low back pain precludes him from 
 
            working.  However, it is evident that claimant cannot 
 
            possibly know the extent of his limitations without having 
 
            made a serious effort to be employed.  There is a paucity of 
 
            evidence to determine what claimant can and cannot do within 
 
            the boundaries of his restrictions and disability.  
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981).
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit from a serious attempt to find work in the 
 
            competitive employment market.  Hild v. Natkin & Co., I Iowa 
 
            Industrial Commissioner Report 144 (Appeal Decision 1981); 
 
            Beintema v. Sioux City Engineering Co., II Iowa Industrial 
 
            Commissioner Report 24 (1981); Cory v. Northwestern States 
 
            Portland Cement Company, Thirty-third Biennial Report of the 
 
            Industrial Commissioner 104 (1976).  Employers are 
 
            responsible for the reduction of earning capacity caused by 
 
            the injury.  They are not responsible for a reduction in 
 
            actual earnings because the employee resists returning to 
 
            work.  Williams v. Firestone Tire and Rubber Co., III Iowa 
 
            Industrial Commissioner Report 279 (1982). 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
                 Claimant's application for social security disability 
 
            benefits and his subsequent receipt of such benefits appears 
 
            to indicate that he is more interested in being disabled 
 
            then finding real work in the competitive labor market.  
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            10 percent industrial disability.
 
            
 
                 The next issue to be determined is whether defendants 
 
            delayed commencement of benefits to claimant was without 
 
            reasonable or probable cause or excuse such that claimant is 
 
            entitled to an award of additional benefits pursuant to Iowa 
 
            Code section 86.13 unnumbered paragraph four.
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).
 
            
 
                 Section 86.13 unnumbered paragraph 4 does not indicate 
 
            when additional compensation becomes due and payable.  It is 
 
            expressly determined that it should run from the date of the 
 
            decision which awards it.  Any other treatment would result 
 
            in a complex formula with pyramiding of interest and 
 
            penalties which the legislature has not directed.  See Klein 
 
            v. Furnas Elec. Co., 384 N.W.2d 370 (Iowa 1986).
 
            
 
                 As is noted above, the standard for evaluating the 
 
            reasonableness in defendants' delay in commencement of 
 
            benefits is whether claimant's claim was fairly debatable.  
 
            The circumstances surrounding claimant's work injury, the 
 
            fact that it was unwitnessed and unreported, his return to 
 
            work without restrictions until December 12, 1989, and his 
 
            subsequent termination from work can fairly be said to have 
 
            raised initial questions as to whether claimant has 
 
            sustained any lost time injury.  The question then becomes 
 
            whether liability for benefits remained fairly debatable 
 
            during the time which benefit commencement was delayed.  
 
            That question cannot be answered favorably for defendants.
 
            
 
                 On December 19, 1989, claimant's foreman was aware that 
 
            claimant had injured his back and was limited to light duty 
 
            by Dr. Boulden.  Claimant was taken off work on December 20, 
 
            1989, and remained off work until January 31, 1990, when 
 
            employer recalled him for light duty.  Claimant worked until 
 
            April 13, 1990, when he was permanently laid off.  However, 
 
            during this time it was still fairly debatable that claimant 
 
            incurred a work related and compensable injury.  
 
            Nevertheless, on October 13, 1991, Dr. Boulden rendered an 
 
            opinion which specifically related claimant's back problems 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            to the type of work he performed with employer.  Therefore, 
 
            claimant's claim ceased to be fairly debatable as of October 
 
            13, 1991.  Defendants are liable for a penalty of 50 percent 
 
            of healing period benefits due claimant from December 20, 
 
            1989 through January 31, 1990, and 50 percent of the 50 
 
            weeks of permanent partial disability benefits.
 
            
 
                 The final issue to be determined is claimant's 
 
            entitlement to certain medical benefits under Iowa Code 
 
            section 85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise 
 
            Construction Specialists, Inc., file number 850096 (Appeal 
 
            Decision July 31, 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).  
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for referral from defendant is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgement.  Assman v. Blue Star Foods, Inc., file no. 866389 
 
            (declaratory Ruling, May 18, 1988).
 
            
 
                 Defendants argue that the medical charges which 
 
            claimant has submitted (exhibit 14) are not causally related 
 
            to the October 12, 1989 and November 9, 1989 work injuries 
 
            and were not authorized by defendants.  
 
            
 
                 Since employer has denied liability for claimant's 
 
            injuries, they do not have the right to choose the provider 
 
            of care.  Nevertheless, claimant must show that the medical 
 
            treatment he received was causally related to his work 
 
            injuries.  Claimant submitted a bill from Mark O'Brien, 
 
            D.O., for $21.  The record indicates that claimant saw Dr. 
 
            O'Brien on July 22, 1992, with complaints of back pain and a 
 
            request for pain medication.  Since this visit was related 
 
            to claimant' work injury, defendants must pay the cost of 
 
            treatment by Dr. O'Brien.  Defendants are also liable for 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            the prescripton bills for medication prescribed by Dr. 
 
            O'Brien.
 
            
 
                 Claimant also submitted a bill from Dr. Boulden.  Dr. 
 
            Boulden saw claimant pursuant to his work injury and, 
 
            therefore, his bill, for evaluation is compensable.  
 
            
 
                 Claimant also submitted a bill from the Stanzel 
 
            Chiropractic Clinic in the amount of $557.  Claimant 
 
            testified at the hearing that Dr. Stanzel only treated his 
 
            thoracic spine and that he was making no claim for a work 
 
            injury relevant to his thoracic spine.  Claimant also 
 
            testified that Dr. Stanzel administered spinal manipulations 
 
            only to his thoracic spine and never treated his lower back.  
 
            Therefore, defendants are not liable for Dr. Stanzel's bill.  
 
            
 
                 Claimant also requests mileage expenses for the period 
 
            from October 12, 1989 through May 14, 1990.  The undersigned 
 
            cannot determine from this expense item when and why these 
 
            expenses were incurred.  Therefore, such expenses cannot be 
 
            approved.
 
            
 
                 In summary, defendants shall pay claimant $276.33 to 
 
            cover the aforementioned medical expenses which claimant 
 
            incurred for treatment of his work-related injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 939838 (October 12, 1989 injury):
 
            
 
                 Claimant takes nothing from this proceeding.
 
            
 
                 In file number 981312 (November 9, 1989 injury):
 
            
 
                 That defendants pay claimant healing period benefits 
 
            from December 20, 1989 through January 31, 1990, at the rate 
 
            of two hundred fifty-three and 23/100 dollars ($253.23) per 
 
            week.
 
            
 
                 That defendants pay claimant an award of fifty (50) 
 
            percent of the amount of healing period benefits due 
 
            claimant from December 20, 1989 through January 31, 1990.
 
            
 
                 That defendants pay claimant permanent partial 
 
            disability benefits for fifty (50) weeks at the rate of two 
 
            hundred fifty-three and 23/100 dollars ($253.23) per week 
 
            commencing February 1, 1990.
 
            
 
                 That defendants pay claimant an award of fifty (50) 
 
            percent of the permanent partial disability benefits due 
 
            claimant commencing February 1, 1990.
 
            
 
                 That defendants receive credit, as appropriate, for 
 
            benefits previously paid.
 
            
 
                 That defendants pay claimant accrued amounts in a lump 
 
            sum.
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 That defendants pay claimant interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants pay costs of this proceeding pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants pay claimant two hundred seventy-six 
 
            and 33/100 dollars ($276.33) in medical bills for treatment 
 
            of claimant's work-related injury.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. David Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St. STE 500
 
            West Des Moines, Iowa  50265
 
            
 
            Mr. Charles E. Cutler
 
            Ms. Janice M. Herfkems
 
            Attorneys at Law
 
            729 Insurance Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
            
 
            
 
            
 
               
 
                                        51100 51800 51803 4000.2 52500
 
                                        Filed November 10, 1992
 
                                        Jean M. Ingrassia
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JOHN HUME,     
 
                      
 
                 Claimant, 
 
                                                 File Nos. 939838
 
            vs.                                            981312 
 
                           
 
            AMERICAN COALS CORP.,    
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE COMPANIES, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51100
 
            Claimant met his burden of proof that he sustained back 
 
            injuries on October 12, 1989 and November 9, 1989, arising 
 
            out of and in the course of employment with employer.  
 
            Although claimant had a long history of back problems prior 
 
            to working for employer, such problems never interfered with 
 
            his ability to perform work as a heavy equipment operator.  
 
            Claimant aggravated his preexisting back condition during 
 
            the course of employment with employer.  Defendants 
 
            presented no medical evidence to the contrary.
 
            
 
            51800
 
            Claimant lost no time from work as a result of the 
 
            aforementioned injuries until December 20, 1989.  Claimant 
 
            was informed by employer that light duty did not exist which 
 
            would accommodate his restrictions and he was sent home.  
 
            Claimant was off work until January 31, 1991, when he was 
 
            called back and light duty made available.
 
            Claimant entitled to healing period benefits during the time 
 
            he was off work.  
 
            
 
            51803
 
            Based upon all of the factors used to determined industrial 
 
            disability, and employing agency expertise, it was found 
 
            that claimant sustained a 10 percent industrial disability.
 
            
 
            4000.2
 
            Claimant's claim was fairly debatable until October 13, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1991, when causation was established by Dr. Boulden.  
 
            Defendants presented no evidence to the contrary.  
 
            Defendants found unreasonable in denying commencement of 
 
            benefits.  Claimant awarded 50 percent of the amount of 
 
            healing period and permanent partial disability benefits 
 
            denied without reasonable or probable cause of excuse. 
 
            
 
            52500
 
            Claimant awarded certain medical benefits incurred for 
 
            treatment of his work-related injury.