Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLEN A. CULP,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 972536
 
            RUBBERMAID COMMERCIAL PROD.,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MANUFACTURING MUTUAL :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Glen A. 
 
            Culp, claimant, against Rubbermaid Commercial Products, 
 
            employer and American Manufacturing Insurance Company, 
 
            insurance carrier, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an alleged injury 
 
            sustained on November 24, 1990.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on February 25, 1992, in Ottumwa, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  Claimant was present and testified at the hearing.  
 
            Also present and testifying was Debbie Mitchell.  The 
 
            documentary evidence in this case consists of joint exhibits 
 
            1 through 9 and claimant's exhibits A through H.  
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and statements made 
 
            by the parties at the hearing in this matter, the following 
 
            issues have been presented for resolution:
 
            
 
                 ().  Whether claimant sustained an injury to his left 
 
            hand and wrist on November 24, 1990, arising out of and in 
 
            the course of his employment with employer;
 
            
 
                 ().  Whether claimant's alleged injury is a cause of 
 
            temporary disability during a period of recovery;
 
            
 
                 ().  Whether there is a causal relationship between 
 
            claimant's employment and his disability; and
 
            
 
                 ().  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant is 40 years old and a high school graduate.  
 
            He commenced working for employer on October 12, 1990, and 
 
            worked approximately 21 days before allegedly sustaining an 
 
            injury on November 24, 1990.  
 
            
 
                 Claimant testified that he was asymptomatic prior to 
 
            his employment with Rubbermaid.  He stated he had no prior 
 
            pain or numbness in his left hand and his symptoms developed 
 
            during his tenure with employer.  He sought medical 
 
            treatment with his family physician, Stephen E. Sparks, 
 
            M.D., who took him off work and put his wrist in a splint.  
 
            When his problems continued, he was referred by Dr. Sparks 
 
            to the company doctor who sent him back to Dr. Sparks.  Dr. 
 
            Sparks then referred claimant to Brent L. Dixon, D.O., who 
 
            diagnosed left carpal tunnel syndrome.  Dr. Dixon referred 
 
            claimant to Michael L. Pogel, M.D., for neurological 
 
            testing.  Dr. Pogel referred claimant to John J. Finneran, 
 
            M.D., for surgery.
 
            
 
                 Claimant testified that he was released to return to 
 
            work on February 24, 1991, and has no permanent impairment 
 
            to his left hand as a result of his November 1990 injury.
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that claimant reported to Dr. Sparks on November 27, 
 
            1990, complaining of numbness in his left fingertips.  He 
 
            was given a cortisone injection and released for light duty 
 
            with limitations (exhibit 6, page 2).  
 
            
 
                 His complaints persisted and Dr. Sparks referred him to 
 
            Dr. Dixon, an orthopedist, for further evaluation.  Dr. 
 
            Dixon diagnosed carpal tunnel syndrome which was confirmed 
 
            with an EMG/nerve conduction test performed on December 14, 
 
            1990.  Because of Dr. Dixon's service in Desert Storm, he 
 
            was unable to perform surgery.  He referred claimant to Dr. 
 
            Finneran.  He performed out-patient left carpal tunnel 
 
            release on January 2, 1991 (ex. 2, pp. 1-7).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined by the undersigned is 
 
            whether claimant sustained an injury on November 24, 1990, 
 
            which arose out of and in the course of his employment with 
 
            Rubbermaid.  
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 24, 
 
            1990, 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.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The Supreme Court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 The uncontroverted evidence in this case clearly 
 
            demonstrates that claimant suffered a cumulative injury that 
 
            came on gradually.  This gradual injury developed over the 
 
            course of time and finally resulted in claimant having to 
 
            leave work and procure medical treatment, including surgical 
 
            intervention, to cure his medical problem.
 
            
 
                 Claimant testified that during his employment with 
 
            Rubbermaid, he worked 12 hours a day, repeatedly lifting 
 
            objects weighing between 25 and 30 pounds.  During the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            course of the 12-hour work day, claimant handled several 
 
            hundred objects that required gripping, prying and lifting 
 
            activities on a fairly constant and repetitive basis.  Dr. 
 
            Sparks testified in a deposition on February 19, 1992, that 
 
            those types of work activities could certainly cause or 
 
            aggravate a carpal tunnel syndrome (ex. 9).  
 
            
 
                 Dr. Dixon reported on November 7, 1991, that while he 
 
            could not say whether Mr. Culp's condition existed prior to 
 
            his employment with Rubbermaid, he could say that the 
 
            repetitive motion tasks of his employment exacerbated his 
 
            condition (ex. 3, p. 5).  Dr. Finneran stated, without 
 
            explanation, that "[I]t would require long (months or years) 
 
            repeated motion to cause carpal tunnel."  (ex. 7).  
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that the greater weight of 
 
            the evidence supports the finding that claimant's left 
 
            carpal tunnel syndrome arose out of and in the course of his 
 
            employment with employer and the disability on which he 
 
            bases his claim is causally connected to such employment.
 
            
 
                 While expert medical evidence must be considered with 
 
            all other evidence introduced bearing on causal connection, 
 
            expert opinion may be accepted or rejected, in whole or in 
 
            part, by the trier of fact.  The weight to be given to 
 
            expert 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.  Burt v. John Deere 
 
            Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955); 
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965); and Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).
 
            
 
                 Based on this finding, claimant is entitled to weekly 
 
            compensation for temporary total disability benefits for the 
 
            period from November 27, 1990 through February 24, 1991, at 
 
            the stipulated rate of $142.77 per week.  
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to 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 Constr. 
 
            Specialists, Inc., File No. 850096 (App. 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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 the referral from defendants 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 does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 This agency has consistently held that defendants 
 
            cannot deny that an injury arose out of and in the course of 
 
            employment on one hand and seek to guide medical treatment 
 
            on the other.  Barnhart v. MAQ, Inc., I Iowa Industrial 
 
            Commissioner Report 16 (Appeal Decision 1981).  Since 
 
            claimant's injury has been found to be compensable, 
 
            defendants are liable for the medical expenses incurred for 
 
            treating that injury.  Those expenses are set out in 
 
            claimant's exhibit number one, A through H.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay to claimant twelve point 
 
            eight five seven (12.857) weeks of temporary total 
 
            disability benefits at the rate of one hundred forty-two and 
 
            77/100 dollars ($142.77) per week for the period from 
 
            November 27, 1990 through February 24, 1991.  
 
            
 
                 That defendants shall pay for all medical expenses 
 
            incurred for treatment of claimant's November 24, 1990, 
 
            injury as set out in claimant's exhibit number one, A 
 
            through H.
 
            
 
                 That defendants shall pay accrued amounts in a lump 
 
            sum.
 
            
 
                 That defendants shall pay interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency. 
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Vern M. Ball
 
            Attorney at Law
 
            207 S. Washington Box 129
 
            Bloomfield, Iowa  52537
 
            
 
            Mr. Craig Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. 3rd St.
 
            Davenport, IA  52801-1550
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51801 52500
 
                                          Filed March 3, 1992
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GLEN A. CULP,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 972536
 
            RUBBERMAID COMMERCIAL PROD.,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MANUFACTURING MUTUAL :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51801
 
            Defendants deny that claimant's carpal tunnel syndrome arose 
 
            out of and in the course of employment with employer.  
 
            Although claimant only worked for employer 21-work days, his 
 
            work activity consisted of repetitive and frequent lifting, 
 
            prying, pushing, and gripping heavy objects on a sustained 
 
            basis during a 12-hour work day.  Physicians who treated 
 
            and/examined claimant testified that these activities could 
 
            have caused or contributed to claimant's medical problem.  
 
            Defendants produced no evidence to the contrary.  Therefore, 
 
            claimant was found entitled to temporary total disability 
 
            benefits from November 27, 1990, through February 24, 1991.
 
            
 
            52500
 
            Under Iowa Code section 85.27, the employer has the right to 
 
            chose the provider of care, except where the employer has 
 
            denied liability for the injury.  Furthermore, defendants 
 
            cannot deny that an injury arose out of and in the course of 
 
            employment on the one hand and seek to guide medical 
 
            treatment on the other.  Barnhart v. MAQ, Inc., I Iowa 
 
            Industrial Commissioner Report 16 (Appeal Decision 1981).  
 
            Defendants found liable for all of claimant's medical bills 
 
            incurred during the course of treatment for his work-related 
 
            injury.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RONNIE HANEN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 972610
 
            STEVER'S CITY SANITATION,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            UNITED FIRE & CASUALTY CO.,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                 INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Ronnie 
 
            Hanen, claimant, against Stever's City Sanitation, Inc., 
 
            employer and United Fire & Casualty Co., insurance carrier, 
 
            defendants, for benefits as the result of an injury which 
 
            occurred on December 10, 1990.  A hearing was held on May 
 
            18, 1993 in Des Moines, Iowa and the case was fully 
 
            submitted at the time of the hearing.  The hearing was 
 
            scheduled to last for three hours, but due to a lack of 
 
            preparation on the part of both parties the hearing actually 
 
            lasted a period of eight hours from 1:00 p.m. in the 
 
            afternoon until 9:00 p.m. in the evening.  The first two 
 
            hours of the hearing, which covered 60 pages of the 268 page 
 
            transcript, were consumed resolving matters the parties 
 
            should have resolved prior to hearing or which the parties 
 
            should have been better prepared to present to the deputy 
 
            for resolution at the time of the hearing (Tran. pp. 1-60 & 
 
            Tran. pp. 50 & 60).
 
            
 
                 The record consists of the testimony of Ronnie Hanen, 
 
            claimant, R. Dallas Jones, Ph.D. a clinical 
 
            neuropsychologist, Harry Stever, defendant-employer, LuRie 
 
            Fairlie, insurance carrier's claim representative, William 
 
            Catalona, M.D., defendants' evaluating orthopedic surgeon, 
 
            claimant's exhibits 1 through 10 with the exception of 
 
            exhibit 8 which was excluded because it was not timely 
 
            served (Tran. pp. 32, 35 & 42) and defendants' exhibits A 
 
            through J.  Some of these exhibits are duplicated because 
 
            the parties failed to get together prior to hearing and 
 
            agree upon a joint exhibit and otherwise prepare the case 
 
            pursuant to the instructions in the hearing assignment 
 
            order.  
 
            
 
                 The testimony of Melvin Luke, Michael Simons and LuRie 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Fairlie were excluded at the objection of claimant for the 
 
            reason that defendants failed to serve a timely witness list 
 
            on claimant and claimant alleged unfair surprise which was 
 
            prejudicial.  LuRie Fairlie was subsequently permitted to 
 
            give limited rebuttal testimony.  Michael Simons was allowed 
 
            to make an offer of proof out of the presence of the deputy.  
 
            The testimony of Irma Hanen, claimant's mother, was excluded 
 
            at the objection of defendants for the reason that claimant 
 
            did not serve a timely witness list on defendants and 
 
            defendants indicated they were unfairly surprised.  
 
            
 
                 Ronnie Hanen was allowed to testify as claimant's 
 
            representative and Harry Stever was allowed to testify as 
 
            employer's representative (Tran. pp. 19-23).
 
            
 
                 At the time of the prehearing conference report dated 
 
            January 11, 1993, the issue of injury arising out of and in 
 
            the course of employment was not identified as an issue to 
 
            be determined in this case.  Seven days prior to hearing 
 
            (May 11, 1993) defendants asserted to claimant that injury 
 
            arising out of and in the course of employment was to be an 
 
            issue in this case.  Defendants were not allowed to assert 
 
            injury arising out of and in the course of employment as an 
 
            issue to be decided at this hearing for the reason that the 
 
            assertion was not timely made.  Claimant justifiably 
 
            asserted surprise and prejudice.  The hearing assignment 
 
            order states "unless otherwise agreed in writing, the issues 
 
            to be heard are those identified in the prehearing 
 
            conference report."  Paragraph 10.  Hearing Issues, Hearing 
 
            Assignment Order dated February 1, 1993 (Transcript page 
 
            49).  The deputy ruled that injury arising out of and in the 
 
            course of employment would not be one of the issues to be 
 
            determined by this decision (Tran, pp. 14 & 23) but rather 
 
            it was excluded as an issue to be determined by this hearing 
 
            (Tran, pp. 14 & 25).  Actually, defendants did not dispute 
 
            injury but rather the extent of injury caused by this injury 
 
            (Tran. p. 14).  
 
            
 
                                      ISSUES
 
            
 
                 The parties presented the following issues for 
 
            determination at the time of the hearing.  
 
            
 
                 Whether claimant is entitled to temporary disability 
 
            benefits for the period from December 10, 1990, the date of 
 
            the injury, until February 6, 1991 when defendants began 
 
            paying temporary disability benefits.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which claimant is entitled, to include whether claimant is 
 
            entitled to permanent disability benefits for a scheduled 
 
            member injury or whether claimant is entitled to permanent 
 
            disability benefits for an injury to the body as a whole 
 
            because the knee injury aggravated a preexisting peptic 
 
            ulcer condition and a preexisting mental depression 
 
            condition.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 What is the proper rate of compensation.
 
            
 
                 Whether claimant is entitled to penalty benefits.
 
            
 
                 Whether claimant is entitled to an independent medical 
 
            examination.
 
            
 
                               PRELIMINARY MATTER
 
            
 
                 Medical benefits were asserted as a hearing issue.  
 
            However, the parties agreed that all medical benefits had 
 
            been paid at the time of the hearing, except some recent 
 
            bills which are contained in exhibit 8 which defendants had 
 
            never seen before.  Exhibit 8 was excluded from evidence for 
 
            the reason that it was not timely served pursuant to the 
 
            hearing assignment order and constituted unfair surprise.  
 
            Nevertheless, if claimant can demonstrate to defendants that 
 
            these bills were reasonable treatment for this injury 
 
            defendants would be obligated to pay them pursuant to Iowa 
 
            Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                   entitlement to temporary disability benefits
 
            
 
                 It is determined that claimant is not entitled to 
 
            temporary disability benefits for the period from December 
 
            10, 1990 to February 6, 1991.  
 
            
 
                 It is true that claimant was injured on December 10, 
 
            1990, when he jumped from the garbage truck on which he was 
 
            riding and injured his left knee.  However, it cannot be 
 
            established from any source that claimant was unable to work 
 
            because of this injury during the period of time from 
 
            December 10, 1990 to February 6, 1991.
 
            
 
                 Claimant did not testify that he was unable to work 
 
            during this period of time.  No other lay witness testified 
 
            that claimant was unable to work during this period of time.  
 
            Claimant testified that his mother and wife called employer 
 
            to report that he would not be at work, but claimant did not 
 
            testify that it was because he was unable to work because of 
 
            this injury.
 
            
 
                 Employer testified that claimant picked up his check, 
 
            for Monday, December 10, 1990 on Friday December 14, 1990 
 
            and said that he would be reporting in to work on Monday, 
 
            December 17, 1990.  Employer observed no signs of injury at 
 
            that time (Tran. pp. 181 & 182).  When claimant did not show 
 
            up on Monday employer terminated claimant.
 
            
 
                 Employer testified that he saw claimant a few days 
 
            after the injury and drank a beer with him on the hood of a 
 
            car and claimant did not mention that he was injured nor did 
 
            he appear to be injured (Tran. p. 184).
 
            
 
                 When claimant was checked into and out of jail on 
 
            December 12 and 13 of 1990, the form completed by the 
 
            arresting officer, Michael S. Simons, does not indicate that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the claimant was or was not suffering from a left knee 
 
            injury or that he required any special treatment for any 
 
            kind of unusual health condition (Res. Ex. J). 
 
            
 
                 Claimant testified he had no recollection of being 
 
            booked into the jail at that time (Tran. pp. 111 -113).
 
            
 
                 No physician has stated that claimant was unable to 
 
            work during this period of time (1) even though there is a 
 
            deposition in evidence from Donald D. Berg, M.D., the 
 
            treating orthopedic surgeon, and (2) even though William 
 
            Catalona, M.D., an evaluating orthopedic surgeon testified 
 
            in person at the hearing and also gave a medical report, and 
 
            (3) even though there is a lengthy independent medical 
 
            evaluation and report from William J. Minks, M.D., J.D.  In 
 
            spite of all of this medical evidence, none of these 
 
            physicians gave a professional medical opinion that claimant 
 
            was unable to work during this period of time from December 
 
            10, 1990 to February 6, 1991 (Exs. A, B, D, and 1).
 
            
 
                 Defendants voluntarily paid claimant for the period 
 
            from February 6, 1993, when he first saw a physician for 
 
            this injury, until August 12, 1991, when this same physician 
 
            provided information to the satisfaction of defendants that 
 
            claimant was no longer entitled to temporary disability 
 
            benefits.  There is evidence that Dr. Berg released claimant 
 
            to full activity and full work as of August 12, 1991, 
 
            however, Dr. Berg qualified this statement by saying that 
 
            claimant was not to jump on the left knee for about six 
 
            months to a year following the surgery (Ex. A, p. 17).  
 
            
 
                 Claimant requested a determination of the proper rate 
 
            of compensation for this period of time and this will be 
 
            done under the rate determination section of this decision.
 
            
 
                 Wherefore, it is determined, as a matter of fact, that 
 
            claimant is not entitled to temporary disability benefits 
 
            for the period from December 10, 1990 to February 6, 1991.  
 
            
 
                causal connection/entitlement/permanent disability
 
            
 
                 With respect to causation of disability, Dr. Berg 
 
            stated several times in his records and reports (Ex. B-2, 
 
            B-3, B-4-1, B-7-1, B-10-1, and B-12) and in his deposition 
 
            testimony (Ex. A, p. 25) that this injury was caused by 
 
            claimant's work.  It is determined that the resulting 
 
            treatment and disability therefore was also caused by this 
 
            injury.  Dr. Berg did not suspect or suggest any other cause 
 
            for claimant's injury and disability.  Dr. Berg stated that 
 
            claimant had no prior history any locking episodes with his 
 
            knees or problems along that line prior to December 10, 1990 
 
            (Tran. p. 195; Ex. B-2).  Employer was not aware of any 
 
            problem claimant was having with his knees prior to the 
 
            injury of December 10, 1990 and that he was able to jump on 
 
            and off of trucks before that (Tran. p. 185).  Claimant 
 
            denied any subsequent injuries to his knee (Tran. p. 81).
 
            
 
                 Dr. Catalona and Dr. Minks also proceeded to make their 
 
            impairment evaluations on the basis of the facts of this 
 
            injury and the resulting surgeries that were performed to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            treat this injury.  Likewise, they did not dispute that 
 
            claimant's disability, if any, occurred from anything other 
 
            than this injury (Ex. A & Ex. 1).  
 
            
 
                 Claimant did injure his left knee in a motorcycle 
 
            accident six months to a year prior to this injury.  He said 
 
            it swelled up but within a week he was back to work lifting, 
 
            running, and jumping on and off of the garbage truck without 
 
            difficulty.  Claimant did not see a doctor or receive any 
 
            medical attention for this motorcycle injury (Tran. pp. 76, 
 
            95 & 96).  Claimant was able to work on the garbage truck 
 
            after the motorcycle accident (Tran. p. 128).  There is no 
 
            evidence to suggest that the motorcycle accident in anyway 
 
            contributed to claimant's current disability other than pure 
 
            speculation. 
 
            
 
                 In summary, all of the doctors, Dr. Berg, Dr. Catalona, 
 
            and Dr. Minks all proceeded on the basis that this injury 
 
            was the cause of any existing permanent disability or 
 
            continuing problems that claimant may or may not have with 
 
            respect to his left knee.  None of the doctors determined 
 
            that there was any other cause for this current left knee 
 
            disability.  The fact that this injury was the cause of any 
 
            existing impairment was not disputed by any of the doctors, 
 
            however, Dr. Berg did not think that there was any 
 
            impairment.
 
            
 
                 Wherefore, it is determined that the injury of December 
 
            10, 1990, was the cause of claimant's permanent impairment 
 
            in his left knee.  
 
            
 
                 With respect to nature and extent of disability, 
 
            claimant received an arthoscopic surgery from Dr. Berg on 
 
            February 20, 1991.  His preoperative diagnosis was torn 
 
            medial meniscus, however, his postoperative diagnosis was a 
 
            tear of the anterior cruciate ligament.  During the 
 
            arthoscopic examination Dr. Berg removed a portion of the 
 
            torn cruciate ligament (Ex. B-7-1).  Quadracep and hamstring 
 
            exercises did not restore the stability to claimant's left 
 
            knee, but rather it continued to give out.  Therefore, on 
 
            April 10, 1991, Dr. Berg performed an arthrotomy of the left 
 
            knee with a replacement of the torn anterior cruciate 
 
            ligament with the central third of the patellar tendon (Ex. 
 
            B-11-1).
 
            
 
                 About a year later Dr. Berg made an evaluation on March 
 
            4, 1991, which he worded as follows:
 
            
 
                    Consultation
 
            
 
                    3-4-92
 
            
 
                    This is a 25 y/o who is postop anterior 
 
                 cruciate ligament repair on his left knee.  He is 
 
                 doing very well.  His knee is stable and has not 
 
                 gone out on him.  He feels like his strength has 
 
                 returned.  He has full ROM, good quad and 
 
                 hamstring function and he is released from further 
 
                 follow up.  He appears to have full functional 
 
                 return and has no longterm permanent physical 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 impairment.  Donald D. Berg, M.D. (Ex. B-15)
 
            
 
                 In his deposition on May 11, 1993, seven days prior to 
 
            hearing, Dr. Berg admitted that he had not seen claimant 
 
            since March 4, 1992.  There is no evidence that Dr. Berg 
 
            used a goniometer or used the AMA Guides or any other 
 
            established criteria to arrive at this determination.
 
            
 
                 Apparently defendants attempted to obtain a current 
 
            specific numerical impairment rating from Dr. Berg 
 
            subsequent to March 4, 1992 but they were unable to do so.  
 
            Dr. Berg wrote to defendants' counsel on March 22, 1993 as 
 
            follows.
 
            
 
                    I have reviewed his record and it appears now 
 
                 he has some limitation of motion and some weakness 
 
                 since I have seen him.  I requested that he come 
 
                 in for an evaluation so I can give you the current 
 
                 status on this patient, however, he is now in the 
 
                 alcoholic ward in Burglington [sic] and apparently 
 
                 will be there for five to six months and cannot 
 
                 leave for any appointments.  At this point, I 
 
                 cannot give you any impairment rating or any 
 
                 current status report on this individual.
 
            
 
                 ...
 
            
 
                    As referencing Dr. Mink's report, I cannot 
 
                 state, at the present time, a response to this 
 
                 report as far as the physical impairment of his 
 
                 leg is concerned as I have not seen the patient 
 
                 since back on March 4, 1992.  However, I would 
 
                 state, at that time, I did not feel he would have 
 
                 any impairment with regard to his leg.  As far as 
 
                 the other impairments [ulcers and depression] that 
 
                 Dr. Mink's found, I do not feel these are related 
 
                 to his two knee surgeries.  (Ex. A, Dep Ex. 4)  
 
                 The bracketed material was added by the deputy.
 
            
 
                 Thus, even though Dr. Berg was unable to give a final 
 
            impairment rating, based on the physical condition that Dr. 
 
            Minks and Dr. Catalona examined, nevertheless, Dr. Berg 
 
            indicated that there was no permanent impairment based upon 
 
            his last observation of claimant.  At the same time, since 
 
            Dr. Berg did not perform a comparable examination, it must 
 
            be said that his testimony on permanent impairment of the 
 
            left knee is somewhat inconclusive and incomplete.  Dr. Berg 
 
            acknowledged that he did not know, one way or the other, 
 
            whether or not claimant was currently having symptomatology 
 
            including intermittent knee pain, numbness, or a sensation 
 
            that his knee is going to pop out of place when he exerts 
 
            pressure on his knee (Ex. A, p. 26).  Dr. Berg further 
 
            acknowledged that after this kind of surgery it is possible 
 
            for a patient to lose quad strength and hamstrength if they 
 
            do not exercise the knee "as time goes on through life" to 
 
            keep your leg strengthened up (Ex. A, p. 29).  
 
            
 
                 With respect to claimant's alleged ulcer and mental 
 
            depression complaints, Dr. Berg did testify in his 
 
            deposition on May 11, 1993 and in his letter to defendants' 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            counsel on March 22, 1993, that he did not believe that 
 
            claimant's alleged depression and alleged peptic ulcer 
 
            disease were related to the two knee surgeries (Ex. A, p. 
 
            27, Dep. Ex. 4).  Dr. Berg said that claimant made no 
 
            complaints about an ulcer or mental depression at the time 
 
            he was treating claimant's left knee (Tran. p. 32 & 33).  
 
            
 
                 Claimant was examined by Dr. Minks on January 14, 1993, 
 
            as an independent medical examiner for claimant and he 
 
            submitted a 19 page report including attachments (Ex. 1).  
 
            Dr. Minks has several qualifications, one of which is a 
 
            Fellow American Academy and Disability Evaluating Physicians 
 
            (Ex. 10).  With respect to the left knee Dr. Minks made a 
 
            detailed application of the Guides to the Evaluation of 
 
            Permanent Impairment, Third Edition, Revised, and using 
 
            goniometer measurements he explained in detail how he 
 
            applied Table 40 on page 68, item number 6, to arrive at a 
 
            10 percent permanent impairment based on the anterior 
 
            cruciate ligament repair and continuing symptomatology.  He 
 
            explained also how he applied Table 39, page 68 to 
 
            claimant's range of motion on three separate tests and 
 
            arrived at an 11 percent permanent impairment of the lower 
 
            extremity.  Combining these two values as he was instructed 
 
            to do by the AMA Guides he found that claimant sustained a 
 
            20 percent impairment to the left lower extremity (Ex. 1, p. 
 
            13).  
 
            
 
                 Dr. Minks said that the continuing symptomatology was 
 
            related to be intermittent knee pain precipitated by 
 
            anything that exerts pressure on the knee, a numb sensation 
 
            in his left knee caused by prolonged standing and a feeling 
 
            that the knee will pop out again when he exerts pressure on 
 
            the knee.  Dr. Minks indicated that claimant should not 
 
            engage in prolonged standing in one position for more than 
 
            15 minutes without being able to move around.  He should 
 
            limit climbing ladders and squatting and kneeling to 
 
            occasionally.  He should be prohibited from crawling (Ex. A, 
 
            pp. 5, 12, 15 & 16).
 
            
 
                 Dr. Minks also awarded a 9 percent body as a whole 
 
            impairment based on a deterioration of claimant's peptic 
 
            ulcer disease caused by the injury to his left knee due to 
 
            the anti-inflammatory medications required to treat the 
 
            inflammation in the knee (Ex. 1, p. 14).  
 
            
 
                 In addition, Dr. Minks assessed a 10 percent impairment 
 
            to the body as a whole based on an aggravation of claimant's 
 
            chronic mental depression caused by increased guilt, lowered 
 
            self-esteem and "dipair" [sic] of his depression (Ex. 1, pp. 
 
            14 & 15).
 
            
 
                 Dr. Catalona examined claimant as an independent 
 
            evaluator for defendants shortly before the hearing and made 
 
            a report on March 30, 1993 (Ex. D).  Dr. Catalona also 
 
            testified at the hearing (Tran. pp. 202-249).  Dr. Catalona 
 
            had the advantage of the reports of both Dr. Berg and Dr. 
 
            Minks as well as the opportunity to physically examine 
 
            claimant (Tran. p. 206).  The doctor said he found a 
 
            practically normal left knee except for the fact that 
 
            claimant had surgery on two different occasions (Tran. pp. 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            206 & 207).  In the opinion of the deputy, a knee with two 
 
            surgeries would be significantly different from a 
 
            practically normal left knee which had never been injured 
 
            and never had received any surgeries.  Dr. Catalona said 
 
            there was no loss of range of motion in claimant's left knee 
 
            (Tran. p. 116; Ex. D p. 2).  
 
            
 
                 Claimant testified that he has had continuing problems 
 
            with his left knee and that he has seen a doctor shortly 
 
            before the hearing who ordered an x-ray to diagnose his 
 
            continuing complaints (Tran. p. 83).
 
            
 
                 With respect to peptic ulcers, Dr. Catalona stated, "I 
 
            see absolutely no correlation." (Tran. p. 224).  Dr. 
 
            Catalona further stated that it would be very unusual that 
 
            the knee injury in this case would cause a mental depression 
 
            (Tran. p. 225).  
 
            
 
                 In his written report dated March 30, 1993, Dr. 
 
            Catalona stated, 
 
            
 
                    I find no indication that the injury of this 
 
                 knee is related to his peptic ulcer disease nor to 
 
                 his intermittent episodes of depression.  If the 
 
                 knee injury could have been a cause of these 
 
                 problems, the knee is now so well healed that it 
 
                 would not be a medical cause of his complaints. 
 
                 (Ex. D, p. 2).
 
            
 
                 Dr. Catalona found that claimant sustained a 5 percent 
 
            impairment of the left leg (Tran. p. 215; Ex. D, p. 3).  Dr. 
 
            Catalona did not say how he measured this degree of loss, if 
 
            in fact, it is based upon any physical measurement.  Nor did 
 
            Dr. Catalona say whether his rating was based on the AMA 
 
            Guides, the Orthopedic Surgeons' Guide, or any other 
 
            generally accepted rating criteria.  Dr. Catalona is a long 
 
            time practitioner and a board certified orthopedic surgeon 
 
            and apparently his rating is based upon his many years of 
 
            experience in his profession.  
 
            
 
                 With respect to claimant's ulcers, claimant testified, 
 
            
 
                    Q.  Okay. Now, have you had a previous problem 
 
                 with a peptic ulcer?
 
            
 
                    A.  Yes.  It's always been a problem.  I mean, 
 
                 I had surgery on it, what, at the beginning of '90 
 
                 or end of '89, somewhere like that.
 
            
 
                    Q.  Okay.  so what kind of a problem is it?  I 
 
                 mean, what happens to you?
 
            
 
                    A.  I just worry all the time about everything 
 
                 (Tran. p. 85).
 
            
 
                    With respect to his mental depression claimant 
 
            testified as follows,
 
            
 
                    Q.  Okay.  All right.  Now, is it -- would it 
 
                 be correct to say that you've had depression in 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 the past?
 
            
 
                    A.  Yeah.  I mean, I've had it for years.
 
            
 
                    Q.  Okay.  When your knee got hurt, did that 
 
                 have an effect on your depression?
 
            
 
                    A.  I don't know.  It pissed me off; but I 
 
                 mean, it didn't really.  I didn't notice no 
 
                 changes besides my knee.
 
            
 
                    Q.  Okay.  Did it help your depression?
 
            
 
                    A.  Well, I can't say that it helped it, and I 
 
                 can't say it actually hurt it  (Tran. p. 86)
 
            
 
                 Claimant was examined by R. Dallas Jones, Ph.D., a 
 
            psychologist at the University of Iowa on March 24, 1993.  
 
            Dr. Jones reported as follows,
 
            
 
                    Responses to the Minnesota Multiphasic 
 
                 Personality Inventory (MMPI) were suggestive of an 
 
                 unusually "defensive" response style.  Individuals 
 
                 with this response style deny even common human 
 
                 faults, and usually portray themselves in an 
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 unusually positive light.  As a result of this 
 
                 finding, we asked Mr. Hanen to repeat the MMPI, 
 
                 but he refused.  With this response bias in mind, 
 
                 the clinical scales of the MMPI were suggestive of 
 
                 substantial somatic concern and distress.  The 
 
                 profile is associated with numerous physical 
 
                 complaints that may be disproportionate to 
 
                 objective findings.
 
            
 
                    In sum, the results of our assessment were 
 
                 tempered by a probable "defensive" response bias.  
 
                 However, the data suggest that Mr. Hanen is likely 
 
                 to have numerous physical complaints that may be 
 
                 difficult to isolate medically.  We see no 
 
                 evidence of significant depression or anxiety (Ex. 
 
                 C, pp. 1 & 2).
 
            
 
                 Wherefore, based upon the foregoing evidence it is 
 
            determined that the injury to claimant's left knee which 
 
            occurred on December 10, 1990, was the cause of permanent 
 
            disability to claimant's left leg and that he has sustained 
 
            a 10 percent permanent impairment to the left leg and is 
 
            entitled to 22 weeks of permanent partial disability 
 
            benefits.  Iowa Code section 85.34(2)(o).
 
            
 
                 Claimant sustained a traumatic injury to his left knee.  
 
            It was witnessed by a co-worker.  He eventually sought 
 
            medical treatment.  The left knee injury caused an 
 
            arthoscopic surgery and arthrotomy with a significant 
 
            reconstruction of the left knee anterior cruciate ligament.  
 
            Claimant testified that his left knee becomes numb if he 
 
            stands for a prolonged period of time (Tran. p. 82).  He 
 
            further stated that if walks for a long period of time he 
 
            gets a shooting pain down the left side of his knee (Tan. 
 
            pp. 82 & 83).  Claimant further testified that if he tries 
 
            to run it feels like his knee is going to pop out (Tran. p. 
 
            84).  Claimant added that if he would put a sudden pressure 
 
            on his knee like jumping, it would feel like it was coming 
 
            to a breaking point (Tran. p. 84).  Claimant related he has 
 
            to watch what he is doing if he tries to jog up or down 
 
            stairs (Tran. pp. 84 & 85).  Claimant maintained that he 
 
            could not stand in one place for a long period of time 
 
            (Tran. p. 87).  Claimant testified that he was never offered 
 
            to be rehired by employer after the injury (Tran. p. 81).  
 
            
 
                 It is further determined that the injury of December 
 
            10, 1990 to the left knee was not the cause of any 
 
            significant aggravation of claimant's peptic ulcers or his 
 
            mental depression.  Dr. Minks' testimony was rebutted by Dr. 
 
            Berg, Dr. Catalona, Dr. Jones and claimant himself.
 
            
 
                 Claimant did not relate any problems concerning his 
 
            ulcers or depression to Dr. Berg during the course of his 
 
            treatment for his left knee.  Dr. Berg wrote in his letter 
 
            of March 22, 1993, that these other impairments that Dr. 
 
            Minks found (peptic ulcer and mental depression) were not 
 
            related to his two knee surgeries in Dr. Berg's opinion (Ex. 
 
            A, Dep. Ex. 4).  Dr. Catalona unequivocally stated that he 
 
            found no indication that the injury to his knee was related 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            to his peptic ulcer disease nor to his intermittent episodes 
 
            of depression (Ex. D., p. 2).  Claimant was not examined or 
 
            treated for peptic ulcer disease or depression by any 
 
            medical practitioner subsequent to this injury which 
 
            occurred on December 10, 1990 (Tran. pp. 93-95).  It is the 
 
            determination of this deputy that claimant's peptic ulcers 
 
            and mental depression are related to his lifestyle prior to 
 
            this injury and general state of health prior to this injury 
 
            rather than to the injury to his left knee which occurred on 
 
            December 10, 1990.  
 
            
 
                 It is further determined that claimant sustained a 
 
            scheduled member injury to this left leg and he did not 
 
            sustain an injury to the body as a whole.  Iowa Code section 
 
            85.34(2)(o) and (u).
 
            
 
                                       RATE
 
            
 
                 It is determined that claimant's rate of compensation 
 
            is to be determined pursuant to the introductory paragraph 
 
            of Iowa Code section 85.36 and subparagraph 1 of Iowa Code 
 
            section 85.36.  Those paragraphs read as follows,
 
            
 
                    85.36  Basis of computation.
 
            
 
                   The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  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, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                   1.  In the case of an employee who is paid on a 
 
                 weekly pay period basis, the weekly gross 
 
                 earnings.
 
            
 
                 Claimant testified that he was told that he would be 
 
            paid $280 per week.  He further testified that he would be 
 
            taking home $240 per week after withholding (Tran. p. 75).  
 
            Employer did not deny that he might have told claimant that 
 
            he would be earning $280 a week but the pay records show 
 
            that claimant was earning $260 a week (Tran. p. 202; Ex. G).  
 
            Employer testified that in his opinion claimant was earning 
 
            $260 per week and after a FICA deduction he was paid $240 
 
            per week (Tran. p. 188 & 189).  
 
            
 
                 Employer testified that at the time claimant was hired 
 
            again on or about November 28, 1990, prior to this injury on 
 
            December 10, 1990, and that employer grossed up claimant's 
 
            compensation to $260 per week so that claimant would 
 
            continue to receive $240 per week after the FICA deduction.  
 
            Claimant's pay records for the year 1990 show that claimant 
 
            normally earned $240 per week prior to this last period of 
 
            employment, when he was hired to replace an individual who 
 
            was called to active duty in the military service for 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Operation Desert Storm.  
 
            
 
                 Claimant's testimony that he was earning $280 per week 
 
            at the time of the injury is not supported by any other 
 
            evidence, whereas, employer's pay records support employer's 
 
            testimony that claimant was earning $260 per week and 
 
            received $240 per week in take home pay (Ex. F & G).  
 
            Therefore, it is determined that claimant was earning and 
 
            was paid on the basis of a gross weekly wage of $260 per 
 
            week and that he was paid on a "weekly pay period basis."  
 
            Iowa Code section 85.36(1) (Ex. F & G).
 
            
 
                 Claimant testified that his normal work week was four 
 
            days a week.  He also testified that some employees worked 
 
            Friday until noon or so (Tran. p. 74).  This testimony of 
 
            claimant was corroborated by employer who also testified 
 
            that claimant worked four days a week but that most 
 
            employees worked five days a week.  Employer also testified 
 
            that there were employees who worked four days a week (Tran. 
 
            pp. 187 & 188).  Thus, a four day work week was a normal 
 
            work week for claimant and a number of other employees of 
 
            employer.
 
            
 
                 Claimant testified that he worked off-and-on for 
 
            employer for approximately three or four years (Tran. p. 
 
            73).  How much claimant worked for employer in 1989 and how 
 
            much he earned could not be determined from the evidence 
 
            (Tran. p. 95; Ex. G). 
 
            
 
                 In 1990 claimant worked for employer for four weeks in 
 
            January and earned $240 per week.  Claimant worked three 
 
            weeks for employer in April of 1990 and earned $75, $ $300, 
 
            and $280 per week respectively.  Claimant worked every week 
 
            in May, June and July of 1990 and earned $240 per week (Ex. 
 
            G).  
 
            
 
                 Both claimant and employer agreed that claimant worked 
 
            for employer on a full-time basis in May, June and July of 
 
            1990 (Tran. pp. 96, 173, & 174).  Claimant only worked two 
 
            weeks in August of 1990 earning weekly amounts of $147 and 
 
            $60 respectively.  He worked two weeks in September of 1990 
 
            earning $240 and $60 respectively.  Claimant worked two 
 
            weeks in November of 1990 earning $78 and $240 respectively 
 
            (Ex. G).
 
            
 
                 A new contract of employment was agreed to by claimant 
 
            and employer on or about November 28, 1990.  On or before 
 
            that date both claimant and employer agreed that claimant 
 
            would replace an employee who had been called to active duty 
 
            for military service for Operation Desert Storm.  Claimant 
 
            testified, 
 
            
 
                    Q.  Okay.  Well, what did you understand?  Did 
 
                 you understand you were part-time?  Full-time?  
 
                 What did you understand?
 
            
 
                    A.  Well, when he put me in Van Buren County, 
 
                 he told me someone in Bloomfield had got called 
 
                 off to Desert Storm, and he said it could be six 
 
                 months, it could be a year.  He didn't know for 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 sure how long I would be in Van Buren County 
 
                 (Tran. p. 74).
 
            
 
                 There appears to be a meeting of the minds on this new 
 
            employment contract.  Employer testified, 
 
            
 
                    And the next time that he worked for us, I 
 
                 guess, was when I told him that we had a guy going 
 
                 to -- that had been called into active duty and 
 
                 that while he was gone if he wanted to he could 
 
                 work for him down in Van Buren County (Tran. p. 
 
                 79).
 
            
 
                 After claimant agreed to work indefinitely to replace 
 
            the person who was called to active duty he was paid $260 
 
            per week on November 28, 1990, $260 a week on December 5, 
 
            1990 and $60 for the one day of work that he performed on 
 
            Monday, December 10, 1990, when he was injured (Ex. G).  
 
            Employer acknowledged that he did not know when the employee 
 
            called to active duty would be coming back (Tran. p. 189).
 
            
 
                 Employer admitted that claimant worked as a full-time 
 
            employee in May, June and July of 1990 and that employer 
 
            elected to show these earnings as W-2 earnings.  Employer 
 
            also admitted that when claimant went to work on November 
 
            28, 1990, to replace the employee called to active duty that 
 
            employer again designated these earnings as W-2 earnings 
 
            which is the same method he used to handle the full-time 
 
            employee earnings of claimant in the months of May, June and 
 
            July of 1990 (Ex. E, F & G).  Thus, there seems to be no 
 
            question that employer considered claimant to be a full-time 
 
            employee at the time of this injury based upon the way 
 
            employer chose to report his earnings at the time of this 
 
            injury.
 
            
 
                 Employer actually admitted that claimant was a 
 
            full-time employee at the time of this injury.
 
            
 
                 Q.  Well, again you understood that he would work 
 
            indefinitely for this gentleman that was out of the country?
 
            
 
                 A.  Until he returned.
 
            
 
                 Q.  Until he returned.  And you didn't know when he was 
 
            going to return?
 
            
 
                 A.  That's right.  
 
            
 
                 Q.  And he remained a full-time employee until he hurt 
 
            his knee on December the 10th; is that correct?
 
            
 
                 A.  For two weeks. (Tran. pp. 192-193).
 
            
 
                 The contention of the insurance carrier that, "Mr. 
 
            Hanen was not a full-time employee, he worked when work was 
 
            available and if he elected to ... When Mr. Hanen worked a 
 
            full week it was to replace another employee while that 
 
            employee was on vacation or sick" (Ex. 5-1) is not correct.  
 
            At the time of the injury claimant was not replacing an 
 
            employee who was on vacation or sick.  He was replacing an 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            employee who had been called to active duty indefinitely for 
 
            the duration of the military action or longer.  Furthermore, 
 
            employer's pay records demonstrate that claimant normally 
 
            worked a full week most of the time and was paid on a weekly 
 
            pay period basis (Ex. G)
 
            
 
                 Employer's testimony that he paid claimant $60 a day is 
 
            immaterial for the reason that claimant was paid on a weekly 
 
            pay period basis (Tran. p. 196 & 210; Ex. G).  Furthermore, 
 
            this is in conflict with his earlier testimony that claimant 
 
            was to be paid $260 a week (Tran. p. 188).
 
            
 
                 Moreover, employer's testimony that he normally paid 
 
            $60 a day irrespective of whether an employee worked two 
 
            hours or ten hours is refuted by claimant's pay record for 
 
            the week of April 4, 1990, when claimant was paid $75 for 
 
            that week and the week of November 2, 1990, when claimant 
 
            was paid $78 for that week (Ex. G).  Employer testified that 
 
            it was he himself who prepared exhibit G (Tran. p. 172).  He 
 
            added that this exhibit is the determining factor as to 
 
            whether claimant was working full-time or not (Tran. p. 173: 
 
            Ex. G)  Exhibit G shows claimant was receiving W-2 wages 
 
            which was employer's criteria of whether claimant was 
 
            working full-time or not.  For reasons of his own choosing, 
 
            at all other times employer designated and reported 
 
            claimant's earnings as 1099 earnings.
 
            
 
                 Further evidence of weekly pay is this testimony.
 
            
 
                 Q.  So is it your testimony then, that his gross wages 
 
            was $260?
 
            
 
                 A.  Yes. (Tran. p. 189.
 
            
 
                 Further evidence of weekly pay is that employer agreed 
 
            to gross up claimant's wages to $260 so that claimant would 
 
            receive $240 a week, he did the grossing up on a weekly 
 
            basis and not a daily basis (Tran. p. 201).
 
            
 
                 Thus it can been seen that sometimes claimant worked a 
 
            full week as a temporary employee, other times he worked 
 
            only part-time, and other times he worked full-time as a 
 
            regular employee.
 
            
 
                 Wherefore, from the foregoing evidence it is determined 
 
            that the weekly gross earnings to which the employee was 
 
            entitled on December 10, 1990 and "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," are $260 per week.  Iowa Code 
 
            section 85.36 introductory paragraph and subsection 1.
 
            
 
                 The rate of compensation cannot be computed under Iowa 
 
            Code section 85.36(6) or (7) for the reason that claimant 
 
            was not paid on a daily, hourly or output basis.  The 
 
            evidence established that claimant was paid on a weekly 
 
            basis (Exs. F & G).  
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 The rate of compensation in this case cannot be 
 
            computed under Iowa Code section 85.36(10) because it was 
 
            not established that claimant earned, "... either no wages 
 
            or less than the usual weekly earnings of the regular 
 
            full-time adult laborer in the line of industry in which the 
 
            employee is injured in that locality, ..." Iowa Code section 
 
            85.36(10).  There was no evidence that claimant earned less 
 
            than a regular full-time employee.  
 
            
 
                 The evidence established that full-time employees 
 
            worked four or five days a week.  The evidence established 
 
            that claimant worked four days a week and therefore he was a 
 
            full-time employee.  The evidence further established that 
 
            claimant was paid a gross wage of $260 per week (Ex. F & G).  
 
            He was on a "weekly pay period basis."  Iowa Code section 
 
            85.36(1).
 
            
 
                 The evidence established that irrespective of 
 
            claimant's earlier employment status, whether full-time or 
 
            part-time, whether he earned W-2 earnings or whether he 
 
            earned 1099 earnings, that claimant was nevertheless working 
 
            as a full-time employee, indefinitely, at the time of this 
 
            injury on December 10, 1990, to replace a person who had 
 
            been called to active duty in the military service for 
 
            Operation Desert Storm.  There was no evidence to show when 
 
            the person called to active duty would return to work, if at 
 
            all. 
 
            
 
                 Sometimes persons called to active duty for military 
 
            action are killed or found to be missing in action and never 
 
            return to their former employment.  Sometimes they are 
 
            wounded and are unable to return to their former employment.  
 
            Sometimes they remain in the military service and make a 
 
            career of the military service.  Sometimes, such persons 
 
            choose to follow other employment endeavors at the 
 
            conclusion of military service.  Therefore, the employment 
 
            of claimant to indefinitely replace a person called to 
 
            active duty for military service in Operation Desert Storm, 
 
            which was an actual combat operation, is determined to be 
 
            indefinite full-time employment and that claimant was a 
 
            full-time employee at the time of this injury on December 
 
            10, 1990.
 
            
 
                 Following employer's own criteria that full-time 
 
            employees receive W-2 wages confirms that employer 
 
            considered claimant to be a full-time employee because he 
 
            was paying claimant W-2 wages at the time of the injury (Ex. 
 
            G).
 
            
 
                 Wherefore, it is determined that claimant was a 
 
            full-time employee of employer at the time of this injury 
 
            earning a gross weekly wage of $260 per week who was married 
 
            and was entitled to four exemptions.  The parties stipulated 
 
            that claimant was married and was entitled to four 
 
            exemptions.  According to the Guide to Iowa Workers' 
 
            Compensation Claims Handling for the injury date of December 
 
            10, 1990, the proper rate of compensation  found on page 25 
 
            is $182.18 per week.
 
            
 
                                
 

 
            
 
            Page  16
 
            
 
            
 
                                 PENALTY BENEFITS
 
            
 
            
 
                 Although in the past claimant may have occasionally 
 
            earned "less than the usual weekly earnings of the regular 
 
            full-time adult laborer in this line of industry in which 
 
            the employee is injured in that locality" Iowa Code section 
 
            85.36(10), normally claimant earned $240 per week whether 
 
            employer decided to designate him as a 1099 employee or a 
 
            W-2 employee (Ex. G).  The few notable exceptions are the 
 
            week of April 4, 1990, when claimant earned $75 per week; 
 
            two weeks in August of 1990 when claimant earned $147 and 
 
            $60 per week respectively; one week in September of 1990 
 
            when claimant earned $60 per week and one week in November 
 
            of 1990 when claimant earned $78 per week.
 
            
 
                 The overriding consideration in this case is that at 
 
            the time of the injury on December 10, 1990, claimant was 
 
            working under a new agreement as a full-time employee to 
 
            replace another full-time employee who had been called into 
 
            the military service, and that claimant was paid weekly, and 
 
            that he was to continue to work and be paid on a full-time 
 
            basis into the indefinite future, for perhaps six months or 
 
            a year at least, or even longer.
 
            
 
                 In the opinion of this deputy there is no question that 
 
            claimant was a full-time employee on the date of the injury, 
 
            December 10, 1990.  See the forgoing section on rate where 
 
            it is determined that employer clearly knew and designated 
 
            claimant as a full-time employee.  In the opinion of this 
 
            deputy it was not fairly debatable that claimant was a 
 
            part-time employee at the time of this injury, nor was it 
 
            fairly debatable that claimant was not earning as much as 
 
            "the regular full-time adult laborer" in this industry in 
 
            this locality at the time of this injury.  Iowa Code section 
 
            85.36(10).  In May, June and July of 1990 employer 
 
            considered claimant to be a full-time employee and 
 
            designated his earnings as W-2 earnings claimant was paid 
 
            $240 per week.  On November 28, 1990 and thereafter employer 
 
            admitted that he grossed up claimant's earnings so that he 
 
            would continue to receive $240 per week and employer again 
 
            designated that these earning were W-2 earnings which, 
 
            according to the employer's testimony was his criteria that 
 
            claimant was working as a full-time employee. 
 
            
 
                 Claimant's attorney contends:  "As such, the 
 
            determination of his weekly benefit amount was intentionally 
 
            calculated in such a way to provide him with the lowest 
 
            possible payment, and was based upon a known untruth.  This 
 
            is precisely the situation in which the penalty provision 
 
            was intended to remedy and therefore should be imposed." 
 
            (Clm's. Trial Brief, p. 4).  This contention is not without 
 
            merit.
 
            
 
                 Wherefore, it is determined that employer and insurance 
 
            carrier delayed the commencement of weekly workers' 
 
            compensation benefits at the proper rate of compensation 
 
            without reasonable or probable cause or excuse and that 
 
            claimant is entitled to penalty benefits in the amount of 50 
 
            percent of the amount of benefits that were unreasonably 
 
            denied.  Iowa Code section 86.13(4). 
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 It is further determined (1) that it was not fairly 
 
            debatable that claimant was not a full-time employee and (2) 
 
            it was not fairly debatable that claimant was a part-time 
 
            employee under the evidence summarized above and following 
 
            the standard or criteria that employer used to pay part-time 
 
            and full-time employees.  
 
            
 
                 Both employer and employee essentially testified that 
 
            claimant was employed to work full-time to replace a 
 
            full-time employee who had been called to active duty in the 
 
            military service indefinitely.  Employer's wage records show 
 
            that he considered claimant to be a full-time employee with 
 
            a weekly wage of $260 per week which he designated as W-2 
 
            wages.  Claimant was unjustly deprived of the workers' 
 
            compensation benefits at the proper rate of compensation and 
 
            therefor claimant is entitled to penalty benefits pursuant 
 
            to Iowa Code section 86.13(4).  
 
            
 
                 Defendant paid claimant 26.714 weeks of workers' 
 
            compensation weekly benefits at the rate of $90.74 per week 
 
            for the period from February 6, 1991 to August 12, 1991.  
 
            
 
                 Claimant should have been paid benefits at the rate of 
 
            $182.18 per week.  Thus, claimant was delayed in the 
 
            commencement of $91.44 per week worth of weekly compensation 
 
            benefits for temporary disability without reasonable or 
 
            probable cause or excuse for a period of 26.714 weeks in the 
 
            total amount of $2,442.73.  Claimant is entitled to a 
 
            penalty benefit of 50 percent of $2,442.73 in the amount of 
 
            $1,221.36.  Iowa Code section 86.13(4); Dolan v. Aid 
 
            Insurance Co., 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar 
 
            Mayer Foods Corp., File No. 724378 (1989); Collins v. K Mart 
 
            Corp., File No. 921081 filed March 11, 1993. 
 
            
 
                 Claimant is not entitled to penalty benefits for 
 
            defendants failure to pay permanent partial disability 
 
            benefits for the reason that there was a legitimate dispute 
 
            on the extent of impairment to claimant's left knee.  Juste 
 
            v. HyGrade Food Products Corp., IV Iowa Industrial 
 
            Commissioner Reports, 190 (App. Dec. 1984).  Even though 
 
            claimant's independent evaluator determined that claimant 
 
            had a 20 percent impairment of the left lower extremity, the 
 
            treating physician, Dr. Berg had found that claimant had 
 
            sustained no permanent impairment to his left knee or leg.  
 
            The opinion of Dr. Catalona, an independent evaluator for 
 
            defendants, that claimant had sustained a 5 percent 
 
            permanent impairment to his left leg did not occur until 
 
            shortly before the hearing and it was at odds with the 
 
            treating physician, Dr. Berg, who found no impairment.  
 
            Wherefore, it is determined that claimant is not entitled to 
 
            penalty benefits for defendants failure to commence payment 
 
            of permanent partial disability benefits.
 
            
 
                         INDEPENDENT MEDICAL EXAMINATION
 
            
 
                 The issue of whether claimant is entitled to an 
 
            independent medical examination was determined prior to this 
 
            hearing by another deputy industrial commissioner on 
 
            February 12, 1993.  Defendants filed a motion to reconsider 
 
            this ruling on February 23, 1993 and requested time to 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            prepare and file a resistance.  A motion for reconsideration 
 
            of this nature is considered to be an application for 
 
            rehearing pursuant to Iowa Administrative Act 17A.16(2) and 
 
            rule 343 IAC 4.24.  Defendants timely filed their motion 
 
            within the 20 days required by the statute and the rule.  
 
            Counsel correctly noticed the opposing party as required by 
 
            the statute and the rule.  At the time of hearing 
 
            defendants' counsel complained that he had not received a 
 
            response to his motion.  
 
            
 
                 Iowa Administrative Act 17A.16(2) provides, "Such an 
 
            application for rehearing shall be deemed to have been 
 
            denied unless the agency grants the application within 
 
            twenty days after its filing."  
 
            
 
                    Rule 343 IAC 4.24 provides, 
 
            
 
                    An application for rehearing shall be deemed 
 
                 denied unless the deputy commissioner rendering 
 
                 the decision grants the application within 20 days 
 
                 after its filing.  For purposes of this rule, 
 
                 motions or requests for reconsideration or new 
 
                 trial or retrial or any reexamination of any 
 
                 decision, ruling, or order shall be treated the 
 
                 same as an application for rehearing. 
 
            
 
                 Therefore, counsel either knew or should have known 
 
            that his motion for reconsideration was deemed denied when 
 
            he received no response within 20 days of the motion and 
 
            defendants should have immediately paid the reasonable 
 
            expenses of the requested examination, including travel 
 
            expenses, as ordered by the previous deputy.
 
            
 
                 The statement of defendants' counsel in his brief, 
 
            "Respondent's Motion to Reconsider has not been ruled on and 
 
            is pending." is a misunderstanding of the law on the part of 
 
            defendants' counsel (Respondent's Brief Phase II, p. 19).
 
            
 
                 This deputy has no power or authority to overrule the 
 
            determination of another deputy.  
 
            
 
                 Rather than pay for the examination as required by law 
 
            defendants continued to dispute that Dr. Berg was a 
 
            physician retained by the employer.  Iowa Code section 85.39 
 
            unnumbered paragraph 2.  However, Fairlie, admitted that the 
 
            insurance carrier paid for all of Dr. Berg's charges (Tran. 
 
            pp. 31 & 253).  It has been settled agency law and precedent 
 
            for many years that with respect to Iowa Code section 85.39, 
 
            a physician chosen by the employee but adopted by employer's 
 
            insurance carrier, is considered to be an employer-retained 
 
            physician.  Coble v. Metro Media, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner, 71 (1979).  
 
            Likewise, with respect to Iowa Code section 85.27, even 
 
            though the employer has the right to choose the care, when 
 
            the employer and insurance carrier acquiese in the care of 
 
            the physician chosen by claimant, then this physician is 
 
            considered to be an employer-retained physician.  Munden v. 
 
            Iowa Steel & Wire, Thirty-third Biennial Report of the 
 
            Industrial Commissioner 99 (1977).
 
            
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
                 Therefore, irrespective of whether claimant or 
 
            defendants chose Dr. Berg initially, he became the 
 
            employer-retained physician when defendants acquiesced in 
 
            his care by paying his charges.
 
            
 
                 Defendants either knew or should have known that they 
 
            were in violation of the order of the previous deputy to 
 
            immediately pay the reasonable expenses of the requested 
 
            examination including travel expenses after 20 days elapsed 
 
            subsequent to the filing of their motion.  The motion was 
 
            filed February 23, 1993, the Motion was deemed denied 20 
 
            days later on March 15, 1993.
 
            
 
                 Claimant's counsel contended that he was unable to get 
 
            Dr. Minks to testify live at the hearing because he had not 
 
            been paid $800 for his independent medical examination and 
 
            claimant was unable to advance Dr. Minks $200 in cash prior 
 
            to hearing (Tran. pp. 37 & 38).
 
            
 
                 Wherefore, it is determined, as a matter of fact, that 
 
            claimant was entitled to an independent medical examination 
 
            by Dr. Minks and was entitled to be reimbursed for it 
 
            including the reasonable travel expenses to and from the 
 
            examination as of March 15, 1993.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to 
 
            additional temporary disability benefits for the period from 
 
            December 10, 1990, the date of the injury, until February 6, 
 
            1991, when defendants commenced temporary disability 
 
            benefits.  Iowa Code section 85.33(1).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he sustained an injury to 
 
            the body as a whole or that the injury of December 10, 1990, 
 
            was the cause or aggravation or any increase or worsening of 
 
            his chronic preexisting peptic ulcer disease or his 
 
            preexisting chronic mental depression.  Iowa Code section 
 
            85.34(2)(u).  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 
 
            18 N.W.2d 607 (1945).
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence that the injury to his left 
 
            knee of December 10, 1990, was the cause of permanent 
 
            disability and that he sustained a 10 percent permanent 
 
            impairment of the left leg and is entitled to 22 weeks of 
 
            permanent partial disability benefits.  Iowa Code section 
 
            85.34(s)(o); Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); 
 
            Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945)
 
            
 
                 That the proper rate of compensation is $182.18 per 
 
            week.  Iowa Code section 85.36, introductory paragraph and 
 
            subsection 1; Guide to Iowa Workers' Compensation Claim 
 
            Handling, for the injury date of December 10, 1990, for a 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            gross weekly wage of $260 per week for a married person with 
 
            four exemptions found on page 25.
 
            
 
                 That claimant is entitled to an additional $91.44 per 
 
            week of temporary disability healing period benefits for 
 
            26.714 weeks from February 6, 1991 to August 12, 1991, in 
 
            the amount of $2,442.73.  Iowa Code section 85.36, 
 
            introductory paragraph and subsection paragraph 1; Iowa Code 
 
            section 85.33(1).
 
            
 
                 That claimant is entitled to penalty benefits of 50 
 
            percent of $2,442.73 in the total amount of $1,221.36.  Iowa 
 
            Code section 85.13(4).
 
            
 
                 That the order of the previous industrial commissioner 
 
            to reimburse claimant for an independent medical examination 
 
            including travel expenses became effective on February 15, 
 
            1993, that defendants are delinquent in the payment of these 
 
            expenses.  Iowa Administrative Procedure Act 17A.16(2) and 
 
            rule 343 IAC 4.24.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant twenty-six point seven 
 
            one four (26.714) weeks of additional temporary disability 
 
            healing period benefits in the amount of ninety-one and 
 
            44/100 dollars ($91.44) per week in the total amount of two 
 
            thousand four hundred forty-two and 73/100 dollars 
 
            ($2,442.73) commencing on February 6, 1991.  
 
            
 
                 That defendants pay to claimant twenty-two (22) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred eighty-two and 18/100 dollars ($182.18) per week in 
 
            the total amount of four thousand seven and 96/100 dollars 
 
            ($4,007.96) commencing at the end of healing period on 
 
            August 12, 1991.  Iowa Code section 85.34(2)(s); Teel v. 
 
            McCord, 394 N.W.2d 405 (Iowa 1986).  
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue on the foregoing benefits 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 That defendants pay to claimant penalty benefits in the 
 
            amount of fifty percent (50%) of two thousand four hundred 
 
            forty-two and 73/100 dollars ($2,442.73) in the total amount 
 
            of one thousand two hundred twenty-one and 36/100 dollars 
 
            ($1,221.36) in a lump sum.  Interest on penalty benefits 
 
            will commence on the date of this decision.  Iowa Code 
 
            section 86.13(4).
 
            
 
                 That defendants immediately obey the order of the 
 
            previous deputy and reimburse claimant $800 for the expense 
 
            of the independent medical examination and also pay the 
 
            travel expenses to and from the examination that became due 
 
            on February 15, 1993.
 
            
 
                 That the costs of this action, including the cost of 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.  
 
            
 
                 Claimant is not entitled to the cost for copies of 
 
            medical records in the amount of fifteen dollars ($15) 
 
            charged by Dr. Berg for the reason that medical records are 
 
            not one of the specified items of allowable costs enumerated 
 
            in rule 343 IAC 4.33.  Furthermore, claimant has not 
 
            demonstrated that these costs have actually been paid.  Rule 
 
            4.33 states, "Proof of payment of any cost shall be filed 
 
            with the industrial commissioner before it is taxed."  The 
 
            deputy gave this caveat at the hearing (Tran. pp. 44 & 45).
 
            
 
                 The charge of Medical Records Copying in the amount of 
 
            fifty-seven and 07/100 dollars ($57.07) is also excluded for 
 
            the reason that medical records are not one of the items 
 
            enumerated in rule 4.33 and in addition the document 
 
            submitted by claimant shows that the balance is still due.  
 
            
 
                 The cost of the service by the sheriff of Jefferson 
 
            County dated January 16, 1991, in the amount of twelve and 
 
            60/100 dollars ($12.60) cannot be related to this case in 
 
            which the original notice and petition was filed on May 13, 
 
            1992 (Ex. 9-4).  It should be added that there is no 
 
            evidence as to what legal document was served or who that 
 
            document was served upon that incurred the twelve and 60/100 
 
            dollars ($12.60) expense.  There is no proof of payment of 
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            this cost.
 
            
 
                 The cost in the amount of two and 29/100 ($2.29) for 
 
            the certified mail receipt dated January 12, 1993 to serve 
 
            the application for an independent medical examination on 
 
            defendants' counsel is allowed (Ex. 9-5).  It is considered 
 
            an original notice and petition pursuant to subsection 3 of 
 
            rule 343 IAC 4.33 and it is an established fact that the 
 
            United States Postal Service requires a cash payment at the 
 
            time the document is mailed.  The other receipt for 
 
            certified mail dated December 29, 1992, in the amount of two 
 
            and 29/100 dollars ($2.29) is not allowed for the reason 
 
            that it was an ineffective mailing because claimant's 
 
            attorney used the incorrect form to make an application for 
 
            the independent medical examination at that time (Ex. 9-5). 
 
            
 
                 Defendants are ordered to file claim activity reports 
 
            as requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Edward F. Noyes
 
            Attorney at Law
 
            104 1/2 N. Main St.
 
            Fairfield, IA  52566
 
            
 
            Mr. John C. Stevens
 
            Attorney at Law
 
            122 East Second St.
 
            P.O. Box 748
 
            Muscatine, IA  52761
 
            
 
            
 
 
            
 
            
 
            
 
                                   1802, 1803, 2502, 2901, 2903, 2906
 
                                   3001, 3002, 3003, 4000.2
 
                                   Filed January 28, 1994
 
                                   Walter R. McManus
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RONNIE HANEN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 972610
 
            STEVER'S CITY SANITATION,     
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            UNITED FIRE & CASUALTY CO.,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            2901, 2903, 2906
 
            
 
                 Both attorneys failed to file timely witness and 
 
            exhibits lists.
 
            
 
                 Late incurred medical expenses were not allowed in 
 
            evidence on an unfair surprise, prejudice standard but it 
 
            was commented that if claimant could show that the medical 
 
            treatment expenses were caused by this injury then 
 
            defendants would be obligated to pay them.
 
            
 
                 One of claimant's witnesses and three of defendants' 
 
            witnesses were not allowed to testify based on an unfair 
 
            surprise, prejudice standard.  One of defendants' excluded 
 
            witnesses was allowed to give limited rebuttal evidence.  
 
            One of defendants' witnesses was allowed to make an offer of 
 
            proof out of the presence of the deputy.
 
            
 
                 Defendants were not allowed to assert the issue of 
 
            injury arising out of and in the course of employment after 
 
            defendants failed to designate injury as a hearing issue on 
 
            the prehearing conference report.  This ruling was based on 
 
            the wording of the hearing assignment order and prejudicial 
 
            surprise.  Defendants elected to assert injury seven days 
 
            prior to hearing.
 
            
 
            1802
 
            
 
                 Claimant did not prove he was entitled healing period 
 
            benefits from the date of the injury until the date 
 
            defendants started paying healing period benefits because he 
 
            did not prove by any evidence (medical or nonmedical) that 
 
            he was unable to work during that period of time.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            1803
 
            
 
                 The injury was determined to be a scheduled member 
 
            injury to the knee.  Impairment ratings were (1) zero, (2) 5 
 
            percent and (3) 20 percent.  Claimant was determined to have 
 
            a 10 percent permanent impairment to the left knee and was 
 
            awarded 22 weeks of permanent partial disability benefits.
 
            
 
                 Claimant's independent evaluator indicated that the 
 
            injury was the cause of an aggravation of claimant's 
 
            preexisting peptic ulcer condition and mental depression 
 
            condition.  Treating physician and defendants' independent 
 
            medical examiner said there was no evidence that either one 
 
            of these two conditions was caused by or aggravated by this 
 
            injury to the knee.  Defendants' independent examining 
 
            psychologist said claimant did not suffer from mental 
 
            depression.
 
            
 
            3001, 3002, 3003
 
            
 
                 In the past claimant had worked as a full-time regular 
 
            employee, as a temporary employee and a part-time employee.  
 
            When he was a full-time regular employee, employer 
 
            designated his earnings as W-2 earnings and deducted FICA.  
 
            When claimant was only working temporary or part-time, 
 
            employer designated claimant's earnings as 1099 earnings and 
 
            made no deductions of any kind.
 
            
 
                 Employer and insurance carrier contended claimant was a 
 
            part-time employee and that his rate should be calculated 
 
            under Iowa Code section 85.36(10) which resulted in a rate 
 
            of $90.74 per week.
 
            
 
                 Claimant contended he was a full-time employee and that 
 
            his rate should be calculated under Iowa Code section 85.36, 
 
            introductory paragraph and subparagraph 1, which resulted in 
 
            a rate of $182.18.
 
            
 
                 Employer's contention that claimant was paid on a daily 
 
            basis was not supported by any other evidence.  On the 
 
            contrary, all of the evidence supported the fact that 
 
            claimant was paid on a weekly pay period basis.
 
            
 
                 Two weeks prior to this injury claimant and employer 
 
            agreed that claimant was rehired to take the place of a 
 
            full-time employee who had been called to active duty for 
 
            military duty in Operation Desert Storm for an indefinite 
 
            period of time.  He was not replacing someone who was sick 
 
            or on vacation.  Employer admitted that claimant was 
 
            full-time for two weeks and that employer designated his 
 
            earnings as W-2 earnings.
 
            
 
                 It was determined that claimant was a full-time 
 
            employee and that his rate should be determined under Iowa 
 
            Code section 85.36 introductory paragraph and subparagraph 
 
            1.
 
            
 
                 Claimant had been paid at the rate of $90.74 per week 
 
            using subsection 10.  The rate he should have been paid was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            $182.18.  Defendants were ordered to pay claimant an 
 
            additional $91.44 per week for the healing period of 26.714 
 
            weeks.
 
            
 
            4000.2
 
            
 
                 It was determined that it was not fairly debatable (1) 
 
            that claimant was a full-time employee at the time of the 
 
            injury and (2) that it was not fairly debatable that 
 
            claimant was not a part-time employee at the time of the 
 
            injury.  Claimant was awarded penalty benefits of 50 percent 
 
            of the $91.44 per week that was not commenced without 
 
            reasonable or probable cause or excuse.
 
            
 
            2502
 
            
 
                 It was determined that the ruling of another deputy 
 
            prior to hearing granting an independent medical examination 
 
            pursuant to Iowa Code section 85.39 was controlling and that 
 
            the hearing deputy had no authority to rehear the issue.
 
            
 
                 Defendants contended that they had asked for a 
 
            rehearing of the previous ruling and did not have a response 
 
            to their application for a rehearing.
 
            
 
                 The hearing deputy determined that defendants' counsel 
 
            either knew or should have known that if defendants' 
 
            application was not granted after twenty (20) days then the 
 
            ruling of the previous deputy became final.
 
            
 
                 Claimant's attorney contended that their evaluator who 
 
            they had planned would testify at the hearing refused to 
 
            testify for the reason he had not been paid for the 
 
            independent medical examination and claimant could not come 
 
            up with the cash advance he required prior to appearing at 
 
            the hearing to testify.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            MARY BUTRICK,   
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                               File No. 973009
 
            FALLS LODGING d/b/a WOODS      
 
            MOTOR HOTEL and PAUL BERTELSON 
 
                                             A R B I T R A T I O N
 
                 Employer,  
 
                 Non-Insured,                   D E C I S I O N
 
                 Defendant.      
 
                       
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Mary Butrick, against her employer, Falls Lodging 
 
            d/b/a Woods Motor Hotel and Paul Bertelson, personally, to 
 
            recover benefits under the Iowa Workers' Compensation Act, 
 
            as a result of an injury sustained on January 8, 1991.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner in Fort Dodge, Iowa, on December 16, 
 
            1993.  A first report of injury has not been filed.  The 
 
            record consists of the testimony of claimant and of 
 
            claimant's exhibits 1 through 7.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and the oral 
 
            stipulations of the parties at hearing, the parties agree 
 
            that claimant did receive an injury which arose out of and 
 
            in the course of her employment on January 1, 1991. 
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 (1)  Claimant's appropriate weekly rate of 
 
            compensation;
 
            
 
                 (2)  Whether claimant is entitled to healing period 
 
            benefits for the period from January 30, 1991 through April 
 
            30, 1991;
 
            
 
                 (3)  Whether claimant is entitled to payment of medical 
 
            expenses; and
 
            
 
                 (4)  Whether an employer-employee relationship existed 
 
            between claimant and Paul Bertelson, individually, at the 
 
            time of claimant's work injury.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 52-year-old single woman who was entitled 
 
            to one exemption on January 8, 1991.  Claimant was working 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            as manager of the Woods Motor Hotel on January 8, 1991, when 
 
            she fell down approximately five or six stairs and landed on 
 
            her right side, hit a wall, and injured her right arm, right 
 
            shoulder and face.  
 
            
 
                 Claimant initially sought treatment at Ellsworth 
 
            Hospital.  Physical therapy and muscle relaxers were 
 
            prescribed.  Claimant saw J. A. Brunhorst, M.D., for 
 
            conservative care through January 19, 1991.  Dr. Brunhorst 
 
            subsequently referred claimant to David W. Beck, M.D., a 
 
            neurosurgeon, who opined on January 30, 1991, that 
 
            claimant's symptoms were consistent with a C7-T1 herniated 
 
            disc as well as ulnar nerve neuritis.  Dr. Beck apparently 
 
            referred claimant to S. M. S. Hayreh, M.D., who admitted 
 
            claimant to St. Joseph Mercy Hospital on January 30, 1991 
 
            for treating and diagnostic testing.  
 
            
 
                 While hospitalized, claimant underwent radiographic 
 
            studies.  A chest x-ray was interpreted as normal; an MRI of 
 
            the cervical spine was interpreted as negative.  Dr. 
 
            Hayreh's discharge diagnoses of February 2, 1991, were:  
 
            Musculoskeletal cervical pain with right extremity pain 
 
            secondary to a muscle sprain; possible right carpal tunnel 
 
            syndrome; and depressive neurosis.  
 
            
 
                 Claimant last saw Dr. Hayreh on March 10, 1991.  She 
 
            has seen no physician for her continuing complaints of 
 
            headaches, numbness in the right arm and difficulties with 
 
            grasping with the right hand since that date as claimant has 
 
            no health insurance and claimant's employer had no workers' 
 
            compensation insurance coverage on January 8, 1991.  
 
            Claimant had conversation with Paul Bertelson subsequent to 
 
            her injury.  Mr. Bertelson instructed that he be sent 
 
            claimant's medical bills relative to the January 8, 1991 
 
            injury.  Claimant has outstanding medical bills equalling 
 
            $5,516.45 related to her work-injury.
 
            
 
                 Between claimant's injury and the end of January 1993, 
 
            the ownership of Woods Motor Hotel changed.  The new hotel 
 
            owners terminated claimant on or about February 1, 1991.  
 
            Claimant has never been released to return to work 
 
            subsequent to her St. Joseph Mercy hospitalization.  On 
 
            approximately May 1, 1991, claimant began to look for other 
 
            work.  Claimant stated that she did so because, while she 
 
            had not obtained a medical release to return to work, it was 
 
            financially impossible for her to continue without finding 
 
            work.  Claimant did find work in July 1991.  Claimant 
 
            currently works as a cook at the Fort Dodge Law Enforcement 
 
            Center.
 
            
 
                 Claimant's gross weekly wage, paid on a biweekly pay 
 
            period basis, was $900 per pay period or $450 per week.  
 
            Additionally, as hotel manager, claimant was required to 
 
            reside at the hotel.  Claimant's motel room would have 
 
            rented to a guest for $28 per night or $196 per week.  The 
 
            employer furnished the room to claimant without charge.  The 
 
            value of the employer-provided room is appropriately 
 
            included in determining claimant's gross weekly wage.  Hoth 
 
            v. Eilors, I Iowa Industrial Commissioner Report 156 (Appeal 
 
            Decn. 1980).  On cross-examination, claimant acknowledged 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            that the hotel was full every night only from April through 
 
            November.  That fact is not relevant in determining the 
 
            overall value of provision of a room for claimant.  What is 
 
            relevant is that claimant received lodging at her employer's 
 
            expense throughout her employment.  Likewise, that 
 
            withholding taxes were not made on the value of the lodging 
 
            is insufficient to obviate inclusion of the value of the 
 
            lodging in claimant's gross weekly wage.  Claimant's overall 
 
            gross weekly wage equals $646 ($450 + $196).  Claimant, as a 
 
            single woman entitled to one exemption/has a weekly 
 
            compensation rate of $359.62.
 
            
 
                 Paul Bertelson signed claimant's paychecks although the 
 
            checks themselves were drawn on accounts for Falls Lodging 
 
            or other Bertelson corporations.  Claimant's W2 tax 
 
            statement was issued from Falls Lodging Corporation and not 
 
            from Paul Bertelson individually.  Paul Bertelson acted as 
 
            president of Falls Lodging.  Mr. Bertelson performed in the 
 
            capacity of claimant's employer and can properly be 
 
            considered to have been the alter ego of Falls Lodging 
 
            Corporation.  As president of Falls Lodging Corporation, Mr. 
 
            Bertelson had statutory duty to see to it that the 
 
            corporation had workers' compensation insurance for its 
 
            employees.  See section 87.1.  A corporate officer cannot 
 
            intentionally or negligently fail to provide the 
 
            corporation's employees with statutorily mandated workers' 
 
            compensation insurance coverage while in the corporation's 
 
            employ and then hide behind the corporate veil as a means of 
 
            avoiding personal liability for injuries the corporation's 
 
            employees sustain which injuries arose out of and in the 
 
            course of the employees employment by the corporation.  See 
 
            Smith v. CRST Inc. and Lincoln Sales and Service, Arb. 
 
            Decn. 976632, filed November 15, 1993.
 
            
 
                 It is expressly found that the corporate veil between 
 
            Paul Bertelson as an officer of Falls Lodging Corporation 
 
            and Paul Bertelson individually is pierced.  Mr. Bertelson 
 
            is expressly found to have been claimant's employer at the 
 
            time of her injury and is expressly found to be personally 
 
            liable as her non-insured employer at the time of the 
 
            work-injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 We first consider the weekly rate issue.
 
            
 
                 The basis of compensation shall be the weekly earnings 
 
            of the injured employee at the time of the injury.  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, computed or 
 
            determined as follows and then rounded to the nearest 
 
            dollar: ... In the case of an employee who is paid on a 
 
            biweekly pay period basis, one-half of the biweekly gross 
 
            earnings. Section 85.36.
 
            
 
                 The value of an employer-provided room is appropriately 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            considered in determining gross weekly earnings.  Hoth, 
 
            supra.
 
            
 
                 Claimant has established a weekly rate of $359.62 for 
 
            compensation purposes.  
 
            
 
                 We consider the questions related to claimant's claimed 
 
            entitlement to healing period from January 30, 1991 through 
 
            April 30, 1991.  That question of necessity requires 
 
            consideration of the issue of whether claimant's incapacity 
 
            through that period related to her work injury.  
 
            
 
                 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).
 
            
 
                 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).
 
            
 
                 Section 85.33(1) provides that the employer pay an 
 
            employee for injury producing temporary total disability 
 
            weekly compensation benefits 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 the injury, whichever 
 
            occurs first.
 
            
 
                 All doctors who treated claimant for her neck, right 
 
            shoulder and right upper extremity complaints after January 
 
            8, 1991 and through March 1991 by history related claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            complaints and conditions to her fall at work on January 8, 
 
            1991.  Defendants presented no evidence demonstrating that 
 
            this was an inappropriate inference on the doctors' parts.  
 
            Claimant has established a causal relation between her 
 
            condition and her period of disability from January 30, 1991 
 
            through April 30, 1991.
 
            
 
                 Although no doctor released claimant to work on or 
 
            before April 30, 1991, claimant, in her testimony, related 
 
            that she began to seek employment on or about May 1, 1991.  
 
            Claimant's resumption of active attempts to find work may 
 
            appropriately be construed as evidence of the claimant's 
 
            being physically capable of returning to work.  Claimant is 
 
            entitled to an award of weekly workers' compensation 
 
            benefits from January 30, 1991 through April 30, 1991.  
 
            Whether this payment of benefits is properly characterized 
 
            as temporary total disability benefits or healing period 
 
            benefits cannot be ascertained at this time.  No medical 
 
            evidence in this record indicates that claimant's condition 
 
            has resolved to the point where whether claimant will be 
 
            entitled to permanent partial disability benefits in the 
 
            future can be ascertained.  
 
            
 
                 We next consider claimant's entitlement to medical 
 
            benefits under 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).
 
            
 
                 The medical care which claimant received from January 
 
            8, 1991 through March 1991 clearly related to claimant's 
 
            January 8, 1991 work injury.  Claimant is entitled to 
 
            payment of $5,516.45 for medical services provided as set 
 
            forth in exhibit 1.  Additionally, claimant is found to have 
 
            continuing symptoms relative to her work-related conditions.  
 
            Claimant is entitled to appropriate medical care at her 
 
            non-insured employer's expense for treatment of work-related 
 
            conditions and symptoms.
 
            
 
                 We reach the question of whether an employer-employee 
 
            relationship existed between claimant and Paul Bertelson, 
 
            individually, on January 1, 1991.  
 
            
 
                 For reasons set forth in the above findings of fact, it 
 
            is expressly concluded that claimant has established that 
 
            claimant was an employee of Paul Bertelson, individually, on 
 
            January 8, 1991.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Defendants pay claimant benefits for a period of 
 
            temporary total disability from January 30, 1991 through 
 
            April 30, 1991 at the rate of three hundred fifty-nine and 
 
            62/100 dollars ($359.62).  
 
            
 
                 Defendants pay claimant for costs of medical treatment 
 
            in the amount of five thousand five hundred sixteen and 
 
            45/100 dollars ($5,516.45). 
 
            
 
                 Defendants provide claimant with appropriate medical 
 
            care for her continuing symptoms relative to her 
 
            work-related condition. 
 
            
 
                 Defendants pay costs of this action.
 
            
 
                 Defendants file claim activity reports as the agency 
 
            orders. 
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. William G. Enke
 
            Attorney at Law
 
            Suite 340, Norwest Center
 
            P.O. Box 1826
 
            Fort Dodge, IA  50501
 
            
 
            Mr. Mark S. Brownlee
 
            Attorney at Law
 
            P.O. Box 957
 
            Fort Dodge, IA  50501
 
            
 
 
            
 
            
 
            
 
                                             2003; 3100
 
                                             Filed January 13, 1994
 
                                             Helenjean M. Walleser
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            MARY BUTRICK,   
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                                  File No. 973009
 
            FALLS LODGING d/b/a WOODS      
 
            MOTOR HOTEL and PAUL BERTELSON 
 
                                                A R B I T R A T I O N
 
                 Employer,  
 
                 Non-Insured,                      D E C I S I O N
 
                 Defendant.      
 
                       
 
            ___________________________________________________________
 
            2003
 
            
 
                 Corporate veil pierced to find president and chief 
 
            officer to be the alter ego of the corporation and therefore 
 
            personally liable as claimant's employer.  Held it would be 
 
            inconsistent to permit an individual, in the individual's 
 
            corporate officer capacity, to fail to provide statutorily 
 
            required workers' compensation coverage then be able to hide 
 
            behind the corporate veil and maintain an absence of 
 
            personal liability as regards payment of appropriate 
 
            workers' compensation benefits to corporate employees who 
 
            received work-related injuries.
 
            
 
            3100
 
            Hotel manager was required to live in motel as part of job 
 
            duties.  Rental value of room included in calculation of 
 
            gross weekly earnings.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         DAN R. SKIPTON,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                              File No. 973054
 
         HON INDUSTRIES - GENEVA,   
 
                                               A P P E A L
 
              Employer,   
 
                                              D E C I S I O N
 
         and         
 
                     
 
         THE TRAVELERS,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 25, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         That claimant and defendants shall share equally the costs of the 
 
         appeal including transcription of the hearing.  Defendants shall 
 
         pay all other costs.
 
         Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Motto
 
         Attorney at Law
 
         1000 Firstar Center
 
         201 W. Second St.
 
         Davenport, Iowa 52801
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 E. Third St.
 
         Davenport, Iowa 52801
 
         
 
 
 
 
 
 
 
 
 
 
                                           5-1803
 
                                           Filed November 17, 1993
 
                                           Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            DAN R. SKIPTON,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 973054
 
            HON INDUSTRIES - GENEVA,   
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            THE TRAVELERS,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAN R. SKIPTON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 973054
 
            HON INDUSTRIES - GENEVA,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dan R. 
 
            Skipton, claimant, against Hon Industries-Geneva, employer, 
 
            hereinafter referred to as Hon, and The Travelers, insurance 
 
            carrier, defendants, for workers' compensation benefits as a 
 
            result of an alleged injury on March 1, 1989.  On September 
 
            17, 1992 a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested 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.  On March 1, 1989, claimant received an injury 
 
            arising out of and in the course of his employment with Hon.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits only from March 26, 1990 through June 24, 
 
            1990 and defendants agree that he was not working at this 
 
            time. 
 
            
 
                 3.  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.
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of June 25, 1990.
 
            
 
                 5.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $539.60; he was married; and he was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            entitled to five exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $344.00 according to the Industrial 
 
            Commissioner's published rate booklet for this injury.  The 
 
            parties incorrectly believed at hearing that the correct 
 
            rate was $344.55
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      ISSUES
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to disability 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 nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Hon since the spring of 1972 
 
            and continues to do so at this time.  Hon is a manufacturer 
 
            of office furniture.  His duties over the years varied from 
 
            time to time but all involved the operation of machines in 
 
            the assembly of chairs, mostly in the wood fabrication 
 
            department.  In January 1986, claimant received a promotion 
 
            from his position as assembler to the position of utility at 
 
            a higher rate of pay.  At the time of the injury, claimant 
 
            was assigned primarily to operating a punch press machine 
 
            but as a utility he was occasionally moved to other machines 
 
            as needed such as the RF machine, band saw, shaper and T-
 
            nutter.  
 
            
 
                 It is found that the punch press job at the time of the 
 
            alleged injury subjected claimant to repetitious physical 
 
            and continuous stress to his left shoulder, upper back, 
 
            mid-back, lower back and left hip and leg.  This job 
 
            required claimant to repetitively bend over and pick up a 
 
            stack of pre-cut wood seats from a pallet, flip over the 
 
            wood, and place the wood seats individually into the press 
 
            using his hands, arms, shoulders, back and legs to overcome 
 
            the force of very tight springs in the press used as a 
 
            guide.  After the holes were made in the press, claimant 
 
            removed the wooden seat and placed it on a stack.  He then 
 
            bent over and placed the stacks on an adjacent pallet.  
 
            Claimant processed 700-1300 pieces of wood over 8-10 hours 
 
            each work day, five days per week with frequent overtime on 
 
            Saturdays.  Stacks of wooden seats weighed up to 60 pounds 
 
            each.  Claimant had the reputation at Hon prior to the 
 
            injury as a hard worker and routinely exceeded production 
 
            standards.
 
            
 
                 On or about March 1, 1989, claimant's hard work injured 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            his left shoulder, his upper, mid and lower back, and his 
 
            left hip and leg while working on the punch press machine at 
 
            Hon.  The injury date is the one chosen by the parties for 
 
            this injury.  This was a cumulative trauma injury and an 
 
            overuse syndrome from the continuous repetitive use of 
 
            hands, arms, left shoulder, back, left hip and leg.  
 
            Claimant began to experience serious difficulties with 
 
            chronic pain in the shoulder and upper back in March 1989.  
 
            Claimant's supervisor was aware of these problems at the 
 
            time they occurred.
 
            
 
                 The findings as to the nature and extent of the injury 
 
            herein is based upon the findings of two specialists:  
 
            Robert J. Chesser, M.D., a specialist in physical medicine, 
 
            and W. J. Robb, M.D., an orthopedic surgeon.  Dr. Chesser 
 
            was a treating physician.  Also, the views of a treating 
 
            chiropractor, M. R. Mally, D.C., was given weight as he was 
 
            very familiar with claimant's complaints from a clinical 
 
            perspective.  All of these physicians were much more con
 
            vincing than the other physicians such as:  J. R. Lee, M.D., 
 
            specialty unknown; D. V. Gierlus, D.O., the company doctor; 
 
            Charles T. Cassel, M.D., an orthopedic surgeon; Jeffrey A. 
 
            Shay, D.C., an evaluating chiropractor; and various staff 
 
            members of the Industrial Injury Clinic in Neenah, 
 
            Wisconsin.  Dr. Lee was a one time evaluator possessing 
 
            unknown qualifications who offered little to explain 
 
            claimant's problems and whose only suggestion was to discon
 
            tinue chiropractic care.  Dr. Gierlus only briefly treated 
 
            claimant and his opinions on causation and extent of injury 
 
            are not clearly expressed in the record other than that 
 
            claimant should not be taken off work as a treatment modal
 
            ity.  Dr. Chesser felt that claimant had muscle strain of 
 
            unknown etiology but failed to explain why he ignored a 
 
            clear history of a gradual onset while performing work 
 
            duties.  It was unknown whether Dr. Chesser was confused 
 
            about contributory causation or the physiological processes 
 
            involved.  Dr. Shay was a one-time evaluator who appeared to 
 
            be unfamiliar with claimant's condition to render a credible 
 
            opinion.  
 
            
 
                 The report from the staff at the Neenah Clinic was not 
 
            in the least bit persuasive.  According to the report, the 
 
            staff found that claimant suffered from no medical problem 
 
            or physical impairment whatsoever.  Who exactly was the 
 
            "staff" was not set forth.  The only reported examinations 
 
            were by a physician of unknown background, a psychiatrist, a 
 
            psychologist and a vocational consultant.  The reporting of 
 
            these examinations only reiterated claimant's history.  
 
            There was no attempted explanation why the views of almost 
 
            every physician in this case was rejected or why a psychia
 
            trist or psychologist is more qualified than an specialist 
 
            in physical medicine or orthopedics in the diagnosis and 
 
            treatment of musculoskeletal conditions.  The credibility of 
 
            such report was highly suspect.
 
            
 
                 As a result of the injury of March 1, 1989, claimant 
 
            was absent from his job at Hon for the period of time stipu
 
            lated in the prehearing report upon the advice of his treat
 
            ing chiropractor.  The company physician disagreed with 
 
            claimant's absence from work but Hon authorized this chiro
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            practic care.  It is found that claimant was temporarily 
 
            totally disabled during this period of treatment based upon 
 
            the views of the treating medical provider who is apparently 
 
            duly licensed to practice in this state.
 
            
 
                 As a result of the injury of March 1, 1989, claimant 
 
            has suffered a significant permanent partial physical 
 
            impairment to the body as a whole.  The exact percentage is 
 
            unimportant to this decision as this is an industrial case.  
 
            The finding of permanency is made with reference only to 
 
            claimant's low back problems.  According to the recent medi
 
            cal reports, claimant's upper back and shoulder problems 
 
            responded to treatment and he has not suffered permanent 
 
            shoulder or upper back problems.  The impairment ratings 
 
            from the most credible physicians in the record are based 
 
            upon the low back, hip and leg problems.  What is most 
 
            important to this decision is that claimant is now perma
 
            nently restricted from work involving repetitive bending or 
 
            twisting and lifting over 30 pounds.  These work limitation 
 
            findings are based upon the views of the physiatrist, Dr. 
 
            Chesser, whose specialty is the most appropriate for measur
 
            ing physical capacities.  Again, the views of Dr. Chesser 
 
            and Dr. Robb were given the most weight as they were the 
 
            most credible for the reasons given above and for the addi
 
            tional reason that they are consistent with claimant's ver
 
            sion of his medical history and current condition which is 
 
            found credible.
 
            
 
                 With reference to loss of earning capacity, it is found 
 
            that claimant's medical condition before the work injury was 
 
            excellent.  Although he had chiropractic treatments prior to 
 
            March 1989, he had no ascertainable impairments or disabili
 
            ties prior to March 1989.  Claimant was able to fully per
 
            form physical tasks involving heavy lifting; repetitive 
 
            lifting, bending, twisting and stooping and now is unable to 
 
            do so.  Although claimant today has physical limitations, he 
 
            is still performing the job of punch press at Hon.  However, 
 
            this is only due to ergonomic modifications of the job to 
 
            reduce the repetitive stressors.  Despite these modifica
 
            tions, claimant continues on occasion to suffer symptoms.  
 
            Clearly, the record shows that claimant's work has been 
 
            affected.  Prior to the work injury, claimant routinely 
 
            received "above standard" performance appraisals from his 
 
            supervisor.  Since the injury, claimant has primarily been 
 
            rated as "standard" because he is processing fewer seats per 
 
            hour than before.  
 
            
 
                 It is found that claimant has suffered an actual loss 
 
            of earnings due to the work injury.  After his return to 
 
            work in June 1989, claimant asked for and received a down
 
            grade to assembly from his higher paying utility job.  This 
 
            resulted in a reduction in pay of $1.24 per hour.  Claimant 
 
            stated that he asked for this downgrade due to his back 
 
            problems.  Apparently, even though the punch press job was 
 
            changed to allow him to continue on the job with his 
 
            restrictions, he was worried about being assigned to another 
 
            machine as a utility that he may not be able to physicallly 
 
            handle.  Hon management contends that they did not know why 
 
            claimant asked for the downgrade and that they did not 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            require him to do so in order to continue working.  Whether 
 
            or not Hon knew why he asked for a downgrade, it was reason
 
            able for claimant to conclude that he may not be able to 
 
            handle the other utility jobs.  Also, it is clear from 
 
            claimant's testimony that he was concerned about his future 
 
            at Hon when his productivity decreased.  Although Hon man
 
            agers testified at hearing that claimant's fears were 
 
            unfounded, they did little or nothing to inquire into 
 
            claimant's motives for the downgrade or to alleviate his job 
 
            security fears.
 
            
 
                 Claimant is 40 years of age.  He dropped out of high 
 
            school in his senior year but he has completed his GED.  
 
            Claimant's past employment consists solely of work in a 
 
            packing house for a short time and work at Hon.  Claimant 
 
            has very limited potential for vocational rehabilitation.  
 
            Claimant has considerable motivation to remain employed.  
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of March 1, 
 
            1989 was a cause of a 10 percent loss of earning capacity.  
 
            This finding is based largely on claimant's continuation of 
 
            employment at Hon.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  It is not necessary that claimant prove his dis
 
            ability results from a sudden unexpected traumatic event.  
 
            It is sufficient to show that the disability developed grad
 
            ually or progressively from work activity over a period of 
 
            time.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985).  The McKeever Court also held that the date of 
 
            injury in gradual injury cases is the time when pain pre
 
            vents the employee from continuing to work.  In McKeever the 
 
            injury date coincided with the time claimant was finally 
 
            compelled to give up his job.  This date was then used by 
 
            the Court to determine rate and the timeliness of claimant's 
 
            claim under Iowa Code section 85.26 and notice under Iowa 
 
            Code section 85.23.  
 
            
 
                 A disability may be either temporary or permanent.  In 
 
            the case of a claim for temporary disability, the claimant 
 
            must establish that the work injury was a cause of absence 
 
            from work and lost earnings during a period of recovery from 
 
            the injury.  Generally, a claim of permanent disability 
 
            invokes an initial determination of whether the work injury 
 
            was a cause of permanent physical impairment or permanent 
 
            limitation in work activity.  However, in some instances, 
 
            such as a job transfer caused by a work injury, permanent 
 
            disability benefits can be awarded without a showing of a 
 
            causal connection to a physical change of condition. Black
 
            smith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980).  
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The weight to be given to such an opinion is for the finder 
 
            of fact to determine from the completeness of the premise 
 
            given the expert or other surrounding circumstances.  Bodish 
 
            v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
            
 
                 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 perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, 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, February 28, 1985).
 
            
 
                 A showing that claimant had no loss or only a small 
 
            loss of actual earnings does not preclude a find of indus
 
            trial disability.  See Michael v. Harrison County, 34 Bien 
 
            Rep., Ia Ind. Comm'r 218, 220 (App. Dec. 1979).  Bearce v. 
 
            FMC Corp., 465 N.W.2d 531 (Iowa 1991) only held that contin
 
            ued employment with no loss of earnings is significant evi
 
            dence that should not be overlooked in measuring loss of 
 
            earning capacity.
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 10 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 50 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 10 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  In the case at 
 
            bar, it was found that claimant was totally disabled during 
 
            treatment for the time stipulated in the prehearing report.  
 
            Healing period benefits will be awarded accordingly.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant fifty (50) weeks 
 
            of permanent partial disability benefits at a rate of three 
 
            hundred forty-four and no/l00 dollars ($344.00) per week 
 
            from June 25, 1990.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from March 26, 1990 through June 24, 1990, at the 
 
            rate of three hundred forty-four and no/l00 dollars 
 
            ($344.00) per week.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 4.  Defendants shall pay interest on unpaid weekly ben
 
            efits awarded herein as set forth in Iowa Code section 
 
            85.30. 
 
            
 
                 5.  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.
 
            
 
                 6.  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 November, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Motto
 
            Attorney at Law
 
            1000 First Bank Center
 
            Davenport, Iowa  52801
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed November 25, 1992
 
                                             LARRY P. WALSHIRE
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DAN R. SKIPTON,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 973054
 
            HON INDUSTRIES - GENEVA, 
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            THE TRAVELERS, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.