BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            DAVID STARN,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 976100
 
            ROBINSON SERVICE, INC.,    
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            AETNA,      
 
                        
 
                 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 May 10, 1993 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert F. Wilson
 
            Attorney at Law
 
            810 Dows Bldg.
 
            Cedar Rapids, Iowa 52401
 
            
 
            Ms. Carole J. Anderson
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.30
 
                                               Filed August 27, 1993
 
                                               Byron K. Orton
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            DAVID STARN,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 976100
 
            ROBINSON SERVICE, INC.,    
 
                                                   A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            AETNA,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Claimant, who lacked credibility, was the only witness to 
 
            the alleged injury.  Much evidence was inconsistent with his 
 
            story.  Claimant failed to prove an injury arising out of 
 
            and in the course of employment.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAVID STARN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976100
 
            ROBINSON SERVICE, INC.,       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant David Starn seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition ins arbitration 
 
            against his employer, Robinson Service, Inc., and its 
 
            insurance carrier, the Aetna.  Mr. Starn alleges that he 
 
            sustained injury arising out of and in the course of his 
 
            employment as a heavy machine operator on January 18, 1991.  
 
            
 
                 A hearing was thereupon held in Cedar Rapids, Iowa on 
 
            April 5, 1993.  Claimant's exhibits 1-8 and defendants' 
 
            exhibits A-D were received into evidence.  Testimony was 
 
            received from claimant, Carlotta Starn, Fred Iben, James 
 
            Rolfes, Duane Robinson and Jerald Smithey.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship and agree, in the event of an award, 
 
            that defendants are entitled to certain credits under Iowa 
 
            Code section 85.38(2).
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained injury arising out of 
 
            and in the course of employment;
 
            
 
                 2.  Whether the injury caused either temporary or 
 
            permanent disability;
 
            
 
                 3.  The extent of permanent disability (it being 
 
            stipulated that if defendants are liable for the injury, 
 
            claimant is entitled to temporary total or healing periods 
 
            benefits from January 18 through March 25, 1991);
 
            
 
                 4.  The rate of compensation; and,
 
            
 
                 5.  Entitlement to medical benefits.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The parties agree that fees charged by medical 
 
            providers are reasonable and necessary, but dispute whether 
 
            that treatment was reasonable and necessary.  However, it is 
 
            stipulated that medical providers would testify as to the 
 
            reasonableness of treatment and defendants offer no contrary 
 
            evidence.  Causal connection to the work injury is disputed, 
 
            as is whether those expenses were authorized by defendants.  
 
            However, the authorization defense was ruled invalid at 
 
            hearing because defendants have denied liability on the 
 
            claim, thereby forfeiting the right to control the course of 
 
            medical care.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 David Starn, 43 years of age at hearing, has spent 
 
            basically all of his working life as a heavy machine 
 
            operator, both for wages and in self-employment.  Mr. Starn 
 
            has operated bulldozers, endloaders, cranes, tiling 
 
            machines, backhoes, dump trucks and other like equipment.  
 
            He also has experience in the repair of heavy machinery.
 
            
 
                 Of significance here, claimant was employed by Fred 
 
            Iben for approximately four or five years from 1980, then in 
 
            self-employment until 1989.  Claimant took work with 
 
            Robinson Service, Inc., in approximately September or 
 
            October, 1989.  Robinson Service is engaged in the earth 
 
            moving business, including excavating basements, excavating 
 
            for field tiles and similar work.
 
            
 
                 According to claimant's testimony, he had suffered no 
 
            back injuries prior to taking work with defendant.  He also 
 
            testified that he had not suffered substantial lower back 
 
            problems during his career.  However, there is substantial 
 
            contrary evidence in this record.  Fred Iben, claimant's 
 
            former employer, testified that claimant wore a back support 
 
            during the first spring of that employment and reported that 
 
            his back "occasionally" acted up.  During that employment, 
 
            claimant made occasional but not frequent complaints of back 
 
            ache.  Later, while claimant was self-employed, he on at 
 
            least one occasion subcontracted on a job for Mr. Iben.  
 
            Although claimant owned only a single bulldozer, he had also 
 
            hired an employee of his own.  Iben, curious as to why 
 
            claimant did not operate the dozer himself since he had only 
 
            a single machine, asked why.  Claimant answered that "with 
 
            my back problems, I'm not going to do this any more than I 
 
            have to."
 
            
 
                 According to claimant, he suffered injury on January 
 
            18, 1991 while cleaning up at the end of the work day.  A 
 
            standard calendar shows that January 18, 1991 fell on a 
 
            Friday.  Official notice is hereby taken of that fact 
 
            pursuant to Iowa Code section 17A.14(4).  It is determined 
 
            that fairness to the parties does not require an opportunity 
 
            to contest that fact.
 
            
 
                 Claimant went on to testify that while picking up a 100 
 
            pound LP gas tank he felt something pull in his back and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            experienced sharp pain.  He suffered pain on the way home 
 
            low on the right side and had to lie down upon arrival.  Mr. 
 
            Starn further testified that he sought medical treatment at 
 
            Mercy Hospital the very next day, presumably January 19.
 
            
 
                 However, Mercy Hospital chart notes dated January 21, 
 
            1991 reflect that claimant presented with complaints of 
 
            acute pain and spasm in the left lumbar-sacral spine after 
 
            lifting a tool chest.  Claimant's condition was so severe 
 
            that no evaluation could be done ("since the PT was very 
 
            acute & in spasm").
 
            
 
                 January 21, 1991, fell on a Monday.  Given the severity 
 
            of claimant's symptoms, it seems strange that he would have 
 
            waited over the entire weekend before seeking care (not to 
 
            mention the inconsistency with his testimony of seeking care 
 
            the next morning).  Also, the discrepancy in history is 
 
            noted: was claimant lifting a heavy propane tank or tool 
 
            box?
 
            
 
                 During direct examination, claimant denied having been 
 
            injured one year earlier.  He further indicated that he 
 
            sustained an additional injury approximately three weeks 
 
            later during a half-day attempted return to work, and 
 
            further testified that he did return to work approximately 
 
            March 25, 1991, following which he continued to work with 
 
            lower back pain for several weeks, until finally quitting 
 
            the job due to physical inability to continue.  Since then 
 
            (and beginning almost immediately), claimant has worked as a 
 
            heavy machine operator for other concerns.  As of hearing, 
 
            claimant was receiving job insurance benefits, certifying 
 
            weekly that he is able and available to work (although he 
 
            testified that he knows of no work he has been trained in 
 
            that he can actually do).  Mr. Starn indicated that he is 
 
            troubled by extended sitting, standing, driving or riding 
 
            over rough ground.
 
            
 
                 The sequence of events became murky on 
 
            cross-examination.  Claimant conceded that he had been seen 
 
            by a physician for lower back strain in 1982.  Indeed, 
 
            medical records of Dr. Phil First reflect complaints of 
 
            lumbo-sacral and thoracic spasm on November 2, 1982.  More 
 
            significantly, claimant was questioned in some detail as to 
 
            whether he had been off work for a back injury in January 
 
            1990.  Claimant repeatedly denied that he had missed work on 
 
            account of an LP tank incident in 1990, even going so far as 
 
            to state that Dr. MacMenamin (his treating orthopedic 
 
            specialist) was in error when he reported a year-old LP tank 
 
            injury and, that all 1990 records "can't be right" because 
 
            the LP tank incident was in 1991.
 
            
 
                 On re-direct examination, claimant (in response to 
 
            leading questions) agreed it was possible that the LP tank 
 
            incident occurred in 1990, and that a tool chest incident 
 
            (also work-related, of course) occurred in 1991.  On 
 
            questioning by this deputy, claimant asserted that he did 
 
            not claim workers' compensation benefits for a back injury 
 
            in 1990, even though such an injury would have occurred at 
 
            work and records show that he missed three weeks (the pay 
 
            periods ending January 13, 20 and 27 show no hours worked).  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Asked why he failed to file a claim for so much lost time, 
 
            claimant responded that he considered three weeks to be "no 
 
            big deal."  In each of the nine subsequent weeks, claimant 
 
            grossed $320.
 
            
 
                 As it happens, claimant was paid three weeks of 
 
            workers' compensation benefits following a claimed injury 
 
            lifting an LP gas tank in January 1990.  Following his 
 
            return to work, Duane Robinson indicated that claimant 
 
            performed his normal work without further complaint of back 
 
            problems until January 1991.  Then, he claimed to have 
 
            injured his back lifting his own toolbox out of the back of 
 
            his truck.  Robinson expressed ignorance as to why claimant 
 
            would have done this, since the employer provided all tools.  
 
            Recalled to the stand, claimant then averred that he had 
 
            been taking his toolbox into the shop to work on a machine.  
 
            On cross-examination, it was brought out that he had 
 
            specifically denied a toolbox incident of this type during 
 
            his deposition despite detailed questioning on the issue.  
 
            Claimant then asserted he had no recollection of the toolbox 
 
            incident until the day of hearing.
 
            
 
                 Physical therapy chart notes from Mercy Hospital dated 
 
            January 11, 1990 show that claimant reported with back pain 
 
            and inability to move after feeling immediate pain when 
 
            lifting a gas cylinder in excess of 100 pounds.  Claimant 
 
            had been to a chiropractor two times without relief.  
 
            Observation was made of a man in "very obvious acute pain" 
 
            who had a great deal of difficulty rising from his chair and 
 
            walking into the department.  Posture was deviated from 
 
            normal with knees and hips flexed, the spine very flat and 
 
            rigid and slightly bent forward.  Claimant was able to bend 
 
            forward, but could not return without "climbing up" his legs 
 
            and deviating to the left.  Physical therapy continued 
 
            through January 26, 1990.  A radiology report dated March 
 
            29, 1990, notes that claimant had suffered back pain with 
 
            numbness in the left leg and testicle since January.  It is 
 
            this incident that neither Mr. Starn nor his wife claim to 
 
            remember.
 
            
 
                 Dr. MacMenamin, a board certified orthopedic specialist 
 
            who testified by deposition on March 15, 1993, reported 
 
            seeing claimant for the first time on February 4, 1991.  
 
            Claimant gave a history of symptoms on and off for a year 
 
            after lifting a 100 pound LP tank in his house, with the 
 
            pain becoming worse in the last two weeks as he was using a 
 
            bulldozer and tearing down buildings.  A history 
 
            questionnaire of that date from Iowa Medical Clinic reports 
 
            pain developing on January 18 "lifting toolboxes out of the 
 
            truck."
 
            
 
                 These records, despite claimant's denial of accuracy, 
 
            establish that any gas tank lifting accident occurred in 
 
            1990, although claimant at least once reported that the 
 
            incident actually occurred at home.  As noted, claimant was 
 
            paid three weeks of workers' compensation benefits in 
 
            January 1990 based on this incident.  It now appears that 
 
            this was probably a fraudulent claim.  James Rolfes, also a 
 
            former employee of Robinson Service (in the two weeks before 
 
            trial, he again began working part time for defendant) 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            testified that claimant was off work for approximately three 
 
            weeks and reported hurting his back when he "twisted wrong" 
 
            while plowing out his own driveway.  According to Rolfes, 
 
            claimant said nothing about either a toolbox or an LP tank.  
 
            Although Rolfes believed that this conversation occurred in 
 
            January 1991, it seems clear that he has the year wrong, 
 
            since he left work with Robinson Service near the end of 
 
            1990, and certainty before March 1991 when claimant returned 
 
            to work.  Therefore, this revealing conversation with 
 
            claimant must have occurred in 1990.
 
            
 
                 Duane Robinson also testified that claimant, during his 
 
            tenure, often spoke about retiring because he was "too old" 
 
            for such heavy work.  Robinson also reported that when 
 
            claimant quit in 1991, he did not claim that his decision 
 
            was due to back problems, but instead, cited a prior leg 
 
            injury he had suffered when stepping off his bulldozer.  
 
            Medical records show such a incident occurred in 1988, while 
 
            claimant was self-employed.  Additionally, claimant was 
 
            again seen by Dr. MacMenamin for "swelling" in the right leg 
 
            on April 18, 1991. 
 
            
 
                 Based on the great number of inconsistencies with other 
 
            evidence, many of which are difficult to explain, it must be 
 
            concluded that claimant lacks credibility as a witness.
 
            
 
                          ANALYSIS AND CONCLUSION OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant was the only witness to this alleged injury.  
 
            He was not a credible witness.  Other evidence fails to 
 
            support his claim of injury arising out of and in the course 
 
            of employment.  Claimant has failed to meet his burden of 
 
            proof.
 
            
 
                 Other issues are accordingly rendered moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing.
 
            
 
                 Costs are assessed to claimant.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert F Wilson
 
            Attorney at Law
 
            210 2nd Street
 
            810 Dows Building
 
            Cedar Rapids Iowa 52401-1407
 
            
 
            Ms Carole J Anderson
 
            Attorney at Law
 
            600 Davenport Bank Building
 
            Davenport Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1402.30
 
                                                  Filed May 10, 1993
 
                                                  DAVID R. RASEY
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DAVID STARN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 976100
 
            ROBINSON SERVICES, INC., 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and      
 
                      
 
            AETNA,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1402.30
 
            
 
            Claimant, who lacked credibility, was the only witness to 
 
            the alleged injury.  Much evidence was inconsistent with his 
 
            story.  Claimant failed to prove an injury arising out of 
 
            and in the course of employment.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
SALLY J. GREINER,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                      File No. 976604
 
EXCEL CORP.,     
 
                                        A P P E A L
 
     Employer,   
 
                                      D E C I S I O N
 
and         
 
            
 
CNA,        
 
            
 
     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 April 25, 1994 is affirmed 
 
and modified as the final agency action in this case.  The order 
 
portion of the deputy's decision is modified as follows:
 
 
 
This case will not be returned to assignment for hearing.  Defendants 
 
may seek review-reopening if necessary.
 
 
 
Defendants shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
 
 
Signed and filed this ____ day of February, 1995.
 
                               ________________________________                 
 
                               BYRON K. ORTON           
 
                               INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Gregg A. Pieper
 
Attorney at Law
 
P.O. Box 170
 
Fairfield, IA  52556
 
 
 
Ms. Dorothy L. Kelley
 
Attorney at Law
 
500 Liberty Bldg
 
Des Moines, IA  50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               5-1803
 
                               Filed February 27, 1995
 
                               Byron K. Orton
 
               
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
SALLY J. GREINER,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 976604
 
EXCEL CORP.,  
 
                                      A P P E A L
 
     Employer, 
 
                                    D E C I S I O N
 
and       
 
          
 
CNA,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
5-1803
 
 Nonprecedential, extent of disability case.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SALLY J. GREINER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 976604
 
            EXCEL CORP.,                  :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Sally J. 
 
            Greiner, claimant, against Excel Corporation, employer, 
 
            hereinafter referred to as Excel, and CNA Insurance Company, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on February 18, 
 
            1989.  On August 31, 1993 and March 21, 1994, 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 hearing 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 hearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Excel at the time of the alleged injury.
 
            
 
                 2.  At the time of injury claimant was single and she 
 
            was entitled to one exemption.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
                                    ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II.  The extent of claimant's entitlement to 
 
            disability benefits, rate of weekly compensation and penalty 
 
            benefits, if any; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed the credibility of claimant and her family 
 
            at issue during the hearing as to the occurrence of the 
 
            injury and its impact upon claimant's back and mental 
 
            conditions.  From their demeanor, appearance and gestures 
 
            while testifying, claimant, her father and her mother are 
 
            found credible.  This finding was crucial to the issue of 
 
            which group of medical experts should be relied upon in this 
 
            decision because the treating physicians, which were 
 
            supportive of this claim for compensation, relied heavily 
 
            upon claimant's version of events and their own assessment 
 
            that she was a credible and honest person, an assessment 
 
            shared by the undersigned.
 
            
 
                 Claimant worked for Excel from November 1988 until 
 
            April 13, 1989 at which time she resigned.  It is found that 
 
            she resigned due to her work injury and low back pain.  This 
 
            was a disputed matter at hearing but her written exit 
 
            statement from Excel supported this finding as well as a 
 
            favorable ruling from an administrative law judge in 
 
            claimant's unemployment compensation hearing.  Although 
 
            appealed, the finding by the judge that claimant left her 
 
            Excel employment upon advice from her doctor due to back 
 
            pain from a work injury was upheld.  Although there was 
 
            evidence to indicate that claimant was unhappy at Excel 
 
            because of the physical work, the work injury and resulting 
 
            pain was the precipitating factor in her decision to leave.
 
            
 
                 On or about February 18, 1989, claimant suffered an 
 
            injury to her low back which arose out of and in the course 
 
            of her employment at Excel.  The account of the incident by 
 
            claimant is largely uncontroverted.  She fell on her back 
 
            while going down a flight of slippery stairs at Excel and 
 
            suffered the immediate onset of low back pain.  Claimant was 
 
            initially reluctant to report the injury and seek medical 
 
            treatment due to a policy at Excel that discourages the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            reporting of work injuries.  Apparently, there was an 
 
            incentive pay system in which employees in a department will 
 
            receive more pay if no work injuries are reported.  Claimant 
 
            was credible when she stated that this policy caused her to 
 
            delay reporting of the injury and seeking medical treatment 
 
            from Excel.  Hopefully, this policy is now ended at Excel as 
 
            it appears to greatly conflict with the purposes of the 
 
            workers' compensation and OSHA laws in this state.
 
            
 
                 After the injury, claimant did seek medical treatment 
 
            on her own from a local chiropractor who advised her to 
 
            leave Excel.  She was off work at Excel only a couple of 
 
            days.  Later on, she was treated by a family physician who 
 
            referred her to Donald Berg, M.D., an orthopedic surgeon.  
 
            Dr. Berg initially treated claimant for coccydynia thinking 
 
            her pain may be from a fractured tailbone.  However, by the 
 
            end of November 1990, he concluded that she had a bulging 
 
            disc at L4-5 of the low spine.  At claimant's request, Dr. 
 
            Berg referred claimant to a neurologist, Richard Neiman, 
 
            M.D.  Dr. Neiman has since remained as claimant's primary 
 
            treating physician for her chronic low back pain.
 
            
 
                 Dr. Neiman's diagnosis is degenerative arthritis of the 
 
            low spine at L4-5 and L5-S1 levels with bulging of the disc 
 
            at L4-5.  Dr. Neiman has treated this condition now for over 
 
            four years and believes that claimant's back condition has 
 
            stabilized.  However, he has imposed permanent activity 
 
            restrictions against heavy work.  Dr. Neiman causally 
 
            relates the degenerative arthritis and building disc 
 
            conditions to claimant's fall at Excel in February 1989.  In 
 
            his deposition he maintained this opinion despite records 
 
            that demonstrated low back pain episodes since 1981.  Dr. 
 
            Neiman explains that despite prior incidents of pain, 
 
            claimant relates a history of the start of her current 
 
            chronic and severe pain to the incident at Excel and he 
 
            believes her.  A contrary opinion was rendered by Michael 
 
            Kitchell, M.D., another orthopedic surgeon, on May 27, 1993 
 
            after a single examination of claimant.  The finding of a 
 
            work injury is based upon the views of Dr. Neiman, the 
 
            primary treating physician.  The rejection of Dr. Kitchell's 
 
            views is explained below.
 
            
 
                 It is also found that the work injury of February 18, 
 
            1989 was a significant cause of claimant's current low back 
 
            condition and significant permanent partial impairment.  
 
            This finding is likewise based upon the views of Dr. Neiman.  
 
            Dr. Neiman, as the treating physician, has far greater 
 
            understanding of the condition due to his clinical 
 
            involvement in claimant's case.  Also, like the undersigned, 
 
            he believes the claimant.  On the other hand, the report and 
 
            deposition of Dr. Kitchell demonstrated a cynicism toward 
 
            claimant's story that is not shared by this deputy 
 
            commissioner after observing her demeanor at hearing.
 
            
 
                 Claimant did return to work after leaving Excel.  In 
 
            August 1989 she worked for Copperfield Chimney tracing UPS 
 
            packages.  Between January 1990 and May 1992, she was 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            employed at Jefferson County Hospital.  Claimant stated that 
 
            the hospital work was less demanding but that she did 
 
            experience back problems with activity while walking and 
 
            moping or cleaning.  Claimant has not worked since leaving 
 
            the Jefferson hospital.  However, claimant's back problems 
 
            are not the cause of this inability to return to any type of 
 
            work.
 
            
 
                 Since childhood, claimant has suffered from episodes of 
 
            chronic mental depression.  Her first significant 
 
            hospitalization was in 1988, six months before starting at 
 
            Excel.  The diagnosis at the time was major depressive 
 
            disorder.  It was felt by her treating psychiatrist, Albert 
 
            Norris, M.D., that the accidental death of her brother a 
 
            year and a half before the admission was a significant 
 
            stressor leading to this disorder.  At the time of her fall 
 
            at Excel, claimant was under treatment for depression from 
 
            L. Elaine Ham, D.O., another psychiatrist.  Claimant was 
 
            taking anti-depressive medication when she fell at Excel but 
 
            there is evidence to suggest that she was not taking it 
 
            regularly.  It is found that claimant never fully recovered 
 
            from the depressive event in 1988.  However, according to 
 
            claimant's parents, claimant herself, and the records of her 
 
            physicians, she was greatly improved at the time of the 
 
            fall.  She was able to live independently and work despite 
 
            disliking the physical aspects of her job.  Otherwise, she 
 
            enjoyed working and her fellow employees.  She also began at 
 
            the time a significant relationship with a young man.
 
            
 
                 After the fall claimant began taking the 
 
            anti-depressive medication more frequently and Dr. Ham noted 
 
            an increase in her stress due to physical pain from the back 
 
            condition and from conflict with Excel over the 
 
            compensability of her workers' compensation claim.  Claimant 
 
            was hospitalized again in October 1990 by another 
 
            psychiatrist, Gary Tiegland, D.O., for major depressive 
 
            disorder.  Dr. Tiegland notes, as a significant cause for 
 
            this hospitalization, claimant's inability to cope with her 
 
            back pain following the Excel fall and the fact that she was 
 
            not improving.  This increased stress from the back pain and 
 
            its effect on her depression was clearly noted by Dr. Neiman 
 
            during his treatment of the back.
 
            
 
                 In April 1991, claimant was given an intensive soft 
 
            tissue program to relieve her back pain and was also treated 
 
            for depression.  Although claimant's back condition appeared 
 
            to stabilize, her depression continued to worsen.  
 
            Claimant's condition deteriorated until she became unable to 
 
            concentrate or to function.  Finally, she was again 
 
            hospitalized in June 1992 for major depressive disorder and 
 
            for suicidal idealization.  Claimant was subsequently 
 
            released but continues to be unable to work.  She is 
 
            currently attempting to return to college but is only 
 
            capable of one course per quarter due to a lack of 
 
            concentration ability.  She, however, does well in this one 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            course and has received A's so far for each course.  From 
 
            observations at hearing, claimant is still a long way from 
 
            being fully functional.  She has continual bouts of crying 
 
            and clearly has limited ability to concentrate.
 
            
 
                 It is found that this worsening of claimant's ongoing 
 
            depression was due to lingering back pain from the fall.  
 
            This finding is based upon the observations of Dr. Neiman 
 
            and the opinions of claimant's current board certified 
 
            treating psychiatrist, Russell England, M.D.  Dr. Neiman 
 
            clearly observed a change in her condition following the 
 
            fall and the lingering back pain.  Dr. Neiamn had evaluated 
 
            claimant on two occasions before the fall but noted no 
 
            severe depressive symptoms.  However, they became obvious 
 
            after the fall.
 
            
 
                 Dr. England, who testified personally at hearing, 
 
            opines that claimant's fall and continuing back pain from 
 
            this fall aggravated the prior-existing major depressive 
 
            disorder.  He attributes claimant's current emotional 
 
            condition to two significant stressors:  the death of 
 
            claimant's brother and her back condition.  At one point in 
 
            this deposition, Dr. England stated that he could not be 
 
            reasonably certain that the fall caused the episode but that 
 
            the fall did worsen the condition.  The undersigned believes 
 
            that this somewhat confusing statement is largely due to use 
 
            of the legal term "reasonable medical certainty."  However, 
 
            there is little doubt from his testimony at hearing and 
 
            later on in the deposition that the injury and pain has 
 
            probably worsened the condition.  There may have been many 
 
            other stressors which aggravated claimant's mental condition 
 
            such as stormy incidents with family members, a breakdown in 
 
            a love relationship, her continuing weight problem and just 
 
            coping with everyday life.  However, the fall of February 
 
            18, 1990 remains as one of the significant stressors causing 
 
            claimants' mental problems.
 
            
 
                 Dr. England states that claimant has not returned to 
 
            the condition she was in at the time of the fall.  Claimant 
 
            certainly was suffering from ongoing depression at the time 
 
            of the fall but she was recovering.  He states that his 
 
            treatment is continuing to improve the situation but he has 
 
            not as yet achieved relief of the depression.  Therefore, it 
 
            is found that claimant has not as yet achieved maximum 
 
            healing from the injury and aggravated depression.
 
            
 
                 As claimant has not as yet reached maximum healing, a 
 
            final assessment of industrial disability or loss of earning 
 
            capacity, if any, from the fall, the back condition and the 
 
            aggravated depression cannot be made at this time.
 
            
 
                 Defendants have denied the compensability of the fall 
 
            and have paid no workers' compensation benefits.  The 
 
            ongoing nature of the mental depression at the time of the 
 
            fall in February 1989 clearly makes the causal connection 
 
            between the fall and the depression fairly debatable.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            However, defendants also denied the causal connection of the 
 
            fall to her back complaints treated by Dr. Neiman despite 
 
            clear statements by Dr. Berg and Dr. Neiman causally 
 
            relating the complaints and treatment to the fall.  
 
            Defendants did not have a supportive medical opinion denying 
 
            the causal connection until they hired Dr. Kitchell.  Dr. 
 
            Kitchell did not issue his opinion until May 27, 1993, well 
 
            over four years after the injury.  It is found that the 
 
            denial of compensability for the back injury between 
 
            February 18, 1989 and May 27, 1993 was without reasonable or 
 
            probable cause.
 
            
 
                 Evidence in the record with reference to gross weekly 
 
            compensation at the time of this work injury was sparse.  
 
            The best evidence available shows that claimant was earning 
 
            $6.05 per hour in February 1989.  Claimant testified she 
 
            worked 40 hours a week.  Therefore, it is found that 
 
            claimant's gross weekly earnings at the time of injury was 
 
            $242.00.
 
            
 
                 It is found that all of the requested medical expenses 
 
            set forth in exhibit 2 constitute reasonable and necessary 
 
            treatment of the injury.  All of the treatment was conducted 
 
            by licensed physicians in Iowa and absent contrary evidence, 
 
            their treatment is found reasonably suited to treat the 
 
            injury.  With reference to the reasonableness of the fees 
 
            and charges by the medical providers, it is found that all 
 
            of the requested expenses were either totally or partially 
 
            paid by either claimant herself or a group insurance 
 
            carrier.  Absent contrary evidence, the fees and charges are 
 
            found reasonable and customary.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant received an 
 
            injury arising out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See generally, Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments.  A work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. U.S. Gypsum, 
 
            252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited 
 
            therein.
 
            
 
                 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, 
 
            positive 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            1974).  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).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with non-expert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  To establish compensability, the 
 
            injury need only be a significant factor, not be the only 
 
            factor causing the claimed disability. Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (1980).  In the case of a 
 
            preexisting condition, an employee is not entitled to 
 
            recover for the results of a preexisting injury or disease 
 
            but can recover for an aggravation thereof which resulted in 
 
            the disability found to exist.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, claimant established causal 
 
            connection by a preponderance of the credible evidence and 
 
            benefits will be awarded accordingly.
 
            
 
                  II.  Claimant is entitled to weekly benefits for 
 
            temporary total or healing period benefits under Iowa Code 
 
            section 85.33 from the date of injury until claimant returns 
 
            to work; until claimant is medically capable of returning to 
 
            substantially similar work to the work she was performing at 
 
            the time of injury; or, until it is indicated that 
 
            significant improvement from the injury is not anticipated, 
 
            whichever occurs first.
 
            
 
                 In this case, claimant returned to work several times 
 
            only to be compelled to end employment due to conditions 
 
            proximately caused by the injury.  Healing period may 
 
            terminate and then begin again.  Lawyer & Higgs, Iowa 
 
            Workers' Compensation -- Law and Practice Section 13-3.  
 
            Willis v. Lehigh Portland Cement Co., I-2 Iowa Indus. 
 
            Comm'r Dec 485 (1984); Riesselman v. Carrol Health Center, 3 
 
            Iowa Indus. Comm'r Rep 209 (Appeal Decision 1982); Clemens 
 
            v. Iowa Veterans Home, I-1 Iowa Indus. Comm'r Dec 35 (1984).  
 
            It was also found herein that claimant has not as yet 
 
            reached maximum healing.  Therefore, temporary total or 
 
            healing period benefits will be awarded for all times she 
 
            was off work and for an indefinite period of time into the 
 
            future until maximum healing or a return to work occurs.  
 
            This is a so-called "running award" as termed by this 
 
            agency.
 
            
 
                 With reference to rate of compensation, it was found 
 
            that claimant's gross weekly rate was $242.00.  Given the 
 
            stipulations as to marital status and entitlement to one 
 
            exemption, claimant's rate of compensation is $150.92 
 
            according to the commissioner's published rate booklet for 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            an injury in February 1989.
 
            
 
                 Claimant seeks additional weekly benefits under Iowa 
 
            Code section 86.13, unnumbered last paragraph.  That 
 
            provision states that if a delay in commencement or 
 
            termination of benefits occurs without reasonable or 
 
            probable cause or excuse, the industrial commissioner shall 
 
            award extra weekly benefits in an amount not to exceed 50 
 
            percent of the amount of benefits that were unreasonably 
 
            delayed or denied.  Defendants may deny or delay the payment 
 
            of benefits only when the claim is fairly debatable.  Seydel 
 
            v. U of I Physical Plant, (Appeal Decision, November 1, 
 
            1989).  When the claim is "fairly debatable," the insurer is 
 
            entitled to debate it, whether the debate concerns a matter 
 
            of fact or law.  The Supreme Court recently has clarified 
 
            the grounds necessary to impose a section 86.13 penalty.
 
            
 
                 In the recent case of Boylan v. American Motorists Ins. 
 
            Co., 489 N.W.2d 742, 744 (Iowa 1992), the Iowa Supreme Court 
 
            stated as follows:
 
            
 
                    We conclude that it is unlikely that the 
 
                 legislature intended the penalty provision in 
 
                 section 86.13 to be the sole remedy for all types 
 
                 of wrongful conduct by carriers with respect to 
 
                 administration of workers' compensation benefits.  
 
                 By its terms, it applies only to delay in 
 
                 commencement or termination of benefits. It 
 
                 contemplates negligent conduct rather than the 
 
                 willful or reckless acts that are required to 
 
                 establish a cause of action under Dolan.
 
            
 
                 Consequently, not only bad faith but also negligent 
 
            conduct can invoke the penalty provisions of section 86.13.  
 
            In reviewing the propriety of defendants' actions, Iowa Code 
 
            section 507B.4(9) lists uniform unfair settlement claims 
 
            practices for insurance companies.  This listing is useful 
 
            as a statement of public policy to identify the types of 
 
            claim settlement practices that should be viewed 
 
            unreasonable.  Failing to promptly and fully investigate a 
 
            claim and to force claimant to begin litigation to secure 
 
            benefits are two types of unfair claims practices in this 
 
            listing.
 
            
 
                 Therefore, Iowa Code section 86.13, as now interpreted 
 
            by Boylan, creates an affirmative duty for workers' 
 
            compensation insurance carriers and self-insureds to act 
 
            reasonably once a claim is filed.  Acting reasonably means 
 
            to fully and fairly investigate a claim, not to stand back 
 
            and deny a claim simply because they wish to deny a claim.
 
            
 
                 Failure to have a medical opinion to support a denial 
 
            of a claim may also justify an award of penalty benefits 
 
            when claimant's physician has opined in favor of claimant 
 
            even if an opinion supportive of denial is later obtained.  
 
            Turner v. Louis Rich Company, File No. 860345, (Appeal 
 
            Decision, June 5, 1991).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Given the conduct exhibited herein, a reasonable 
 
            penalty for a denial of benefits between the date of injury 
 
            and August 1990, the date claimant first became re-employed 
 
            following the back injury is eight weeks to be paid in 
 
            addition to the weekly benefits awarded herein.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, all of the expenses requested were 
 
            found causally connected to the injury.  However, no 
 
            evidence was offered as to the reasonableness of the charges 
 
            and fees despite the fact that the issue was listed as 
 
            disputed in the prehearing conference report.  However it 
 
            was found that all of these expenses were either paid by 
 
            claimant or partially paid by the group insurance carrier.  
 
            Payment of medical fees can constitute evidence of their 
 
            reasonableness and, in the absence of contrary evidence, is 
 
            sufficient to carry claimant's burden of proof on 
 
            reasonableness of the fees.  Schneider v. Prairie 
 
            Contractors, Inc., File No. 869747, (Appeal Decision, April 
 
            20, 1992).
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant temporary total 
 
            disability/healing period benefits from February 18, 1989 
 
            through the present and continuing for an indefinite period 
 
            into the future except for those periods of time claimant 
 
            was employed either at Excel or with some other employer at 
 
            the rate of one hundred fifty and 92/l00 dollars ($150.92) 
 
            per week.  These benefits shall continue until any of the 
 
            conditions set forth in Iowa Code section 85.33 or 85.34(1) 
 
            are satisfied which would justify a termination of such 
 
            benefits and the commencement of permanent partial benefits.
 
            
 
                 2.  Defendants shall pay in addition to the weekly 
 
            benefits set forth above an additional eight (8) weeks of 
 
            weekly benefits from February 18, 1989 as a penalty for an 
 
            unreasonable denial of weekly benefits.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the claimant's exhibit 2.  Claimant shall be reimbursed for 
 
            any of these expenses paid by him.  Otherwise, defendants 
 
            shall pay the provider directly along with any lawful late 
 
            payment penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 5.  Defendants shall receive credit for previous 
 
            payments of benefits under a non-occupational group 
 
            insurance plan, if applicable and appropriate under Iowa 
 
            Code section 85.38(2), less any tax deductions from those 
 
            payments.
 
            
 
                 6.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 7.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 9.  This matter shall be set back into assignment for 
 
            hearing on the issue of extent of permanency benefits and 
 
            for re-issuance of orders to submit a prehearing conference 
 
            report indicating readiness for hearing.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Gregg A. Pieper
 
            Attorney at Law
 
            103 1/2 E Broadway
 
            PO Box 170
 
            Fairfield, Iowa  52556
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed April 25, 1994
 
                                              LARRY P. WALSHIRE
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SALLY J. GREINER,   
 
                      
 
                 Claimant, 
 
                 
 
            vs.       
 
                                                  File No. 976604
 
            EXCEL CORP.,   
 
                                                A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            CNA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JEFFREY A. SCHWAB,    :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 976608
 
            COLONIAL BAKING COMPANY,   :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            PACIFIC EMPLOYERS INSURANCE,    :
 
                        :
 
                 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 September 22, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jack Paige
 
            Attorney at Law
 
            P.O. Box 1968
 
            Cedar Rapids, Iowa 52401
 
            
 
            Mr. James M. Peters
 
            Attorney at Law
 
            1200 Merchants Nat'l Bank Bldg.
 
            Cedar Rapids, Iowa 52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed January 28, 1993
 
            Byron K. Orton
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JEFFREY A. SCHWAB,    :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 976608
 
            COLONIAL BAKING COMPANY,   :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            PACIFIC EMPLOYERS INSURANCE,    :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            22, 1992.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JEFFREY SCHWAB,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976608
 
            COLONIAL BAKING COMPANY,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Jeffrey 
 
            Schwab, claimant, against Colonial Baking Company, employer, 
 
            and Pacific Employers Insurance, insurance carrier, as 
 
            defendants.  Claimant filed his petition based on an alleged 
 
            work-related injury occurring on December 30, 1990.
 
            
 
                 A hearing was held on August 5, 1992, at Cedar Rapids, 
 
            Iowa.  The record consists of testimony from the claimant 
 
            and Scott Edmunds; and, joint exhibits 1 through 10.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on December 
 
            30, 1990, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and claimant's disabilities;
 
            
 
                 3.  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits or permanent partial 
 
            disability benefits; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Jerry Schwab, was 22 years old at the time of 
 
            the hearing.  He currently works as a laborer at Colonial 
 
            Baking Company.  Claimant began working for the defendant on 
 
            June 5, 1988.
 
            
 
                 In December of 1990, claimant's title was that of "cake 
 
            person."  As such, he was required to unload a semi truck, 
 
            distribute different bakery products to trucks assigned to 
 
            various routes, and paperwork duties.  Claimant also has the 
 
            capability to "spot" trucks, and on a regular basis would 
 
            move trucks so that the semi could back into the loading 
 
            dock.  Claimant testified that he was the only one on his 
 
            shift that had the ability to move the trucks.
 
            
 
                 Claimant was classified as a part-time worker, but 
 
            averaged 44 hours of work per week.  As a part-time 
 
            employee, he was not given a guarantee to work any hours, 
 
            was offered no insurance plan, and could not participate in 
 
            the company's pension program.
 
            
 
                 December 30, 1990 was a Sunday.  Claimant was scheduled 
 
            to begin work at 6:00 a.m.  The weather on this particular 
 
            day was that of a typical Iowa winter day, freezing rain.  
 
            Claimant stated that some ice had formed on the sidewalks, 
 
            but he encountered no problems driving to work.
 
            
 
                 Claimant arrived at work and reported to Scott Edmunds, 
 
            his supervisor.  He was told that the semi truck that was to 
 
            be unloaded was late.  Claimant states he was told to go 
 
            home and wait by the phone so that Edmunds could call him 
 
            when the truck arrived.  Edmunds told claimant that the 
 
            truck could be five to six hours late.  Claimant apparently 
 
            told Edmunds that he could be reached by telephone at a 
 
            friend's house.  Claimant "punched out" and drove to his 
 
            friend's house.  As he reached the door of the house, he 
 
            slipped on the ice and fell.  He sustained a fractured 
 
            ankle, and has incurred medical bills totaling more than 
 
            $5,000 as a result of two surgeries and other medical 
 
            treatment rendered.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on December 30, 1990, which arose out of 
 
            and in the course of his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 30, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 
 
            Iowa 352, 154 N.W.2d 128.
 
            
 
                 Claimant argues that after he left the warehouse, he 
 
            was still under the employer's control because he was 
 
            instructed to wait for a telephone call from his supervisor 
 
            so that he could return to work when the truck arrived.  
 
            Claimant states that he was not free to do anything or go 
 
            anywhere he wanted, but rather had to be accessible by phone 
 
            until the truck arrive
 
            Comp., Ap. Bd., 106 Cal. Rptr. 39, 29 CoA.3d 902 (1973) 
 
            (benefits denied to police officer who, although on-call 24 
 
            hours per day, was not involved in any conduct for 
 
            employer's benefit when injured while driving to work); 
 
            Kansas City, Missouri, Police Dep't. v. Bradshaw, 606 SW2d 
 
            277 (Mo. App. 1980) (benefits denied when policeman, was on-
 
            call 24 hours a day, was traveling from his regular job to a 
 
            second job, as on-call does not necessarily mean on-duty); 
 
            Thornton v. Texarkana Cotton Oil Corp., 219 Ark.650, 243 
 
            SW2d 940 (1951) (benefits denied to employee who was going 
 
            home from regular work but was subject to call at any time).
 
            
 
                 Claimant argues that after he left the warehouse, he 
 
            was still under the employer's control because he was 
 
            instructed to wait for a telephone call summoning him back 
 
            to work.  Claimant contends he was not free to do anything 
 
            or go anywhere he wanted.  Additionally, he argues that his 
 
            act of going home to sleep benefited the employer and makes 
 
            his injury compensable.
 
            
 
                 The undersigned is not convinced that claimant was an 
 
            on-call employee, and that even if he was, does not believe 
 
            his claim is compensable.
 
            
 
                 Claimant, once he left the employer's premises, was 
 
            told that the truck would be five to six hours late.  During 
 
            those hours, he feasibly could have done anything he chose 
 
            to do.  He punched out, and returned to a friend's house to 
 
            sleep.  At 6:00 a.m., it is more likely than not that 
 
            claimant's act of sleeping was as much for his own benefits 
 
            (if not more so) than for the benefit of his employer.  
 
            Although claimant disagrees, the cakes job could have been 
 
            performed by other people at the plant and/or at anytime 
 
            after the truck finally arrived.
 
            
 
                 Likewise, the evidence does not support a finding that 
 
            claimant's act of going home to sleep until his duties could 
 
            be performed constitute a special errand.  Claimant was not 
 
            instructed to do anything other than return to the warehouse 
 
            when the truck arrived.
 
            
 
                 As a result, claimant has failed to prove by a 
 
            preponderance that his injury arose out of his employment.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendants shall pay the costs of this action.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Jack Paige
 
            Attorney at Law
 
            700 Higley Bldg
 
            P O Box 1968
 
            Cedar Rapids IA 52401
 
            
 
            Mr James M Peters
 
            Attorney at Law
 
            1200 Merchants natl Bank Bldg
 
            Cedar Rapids IA 52401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1100
 
                                           Filed September 22, 1992
 
                                           Patricia J. Lantz
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JEFFREY SCHWAB,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976608
 
            COLONIAL BAKING COMPANY,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he sustained a work-related injury.  Claimant had been 
 
            told to punch out on the time clock and wait for five to six 
 
            hours before returning to work.  Claimant was free to do 
 
            anything he wanted during the time he was off duty.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LARRY HOCH,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 956038
 
                                          :                   976617
 
            FIRESTONE TIRE & RUBBER,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Larry Hoch asserts that he suffered a 
 
            work-related injury to the left knee on December 8, 1988 
 
            (956038) or, in the alternative, on June 26, 1989 (976617).  
 
            He has filed petitions in arbitration seeking benefits under 
 
            the Iowa Workers' Compensation Act from his employer, 
 
            Firestone Tire & Rubber Company, and its insurance carrier, 
 
            Cigna.  Claimant also named Second Injury Fund of Iowa as a 
 
            party defendant in file number 956038.  The cases were 
 
            consolidated for hearing, and as the asserted injury dates 
 
            were offered in the alternative, it was determined that 
 
            Second Injury Fund of Iowa would properly be considered a 
 
            party defendant in both actions.
 
            
 
                 The cause came on for hearing in Des Moines, Iowa, on 
 
            July 9, 1992.  Claimant and Duane Abels testified at hearing 
 
            (claimant's deposition of April 29, 1992, is also in 
 
            evidence).  Claimant's exhibits 1 through 12 and Second 
 
            Injury Fund exhibits A, B and C were also received into 
 
            evidence.  Claimant's exhibit 13 and defendants' exhibits X, 
 
            Y and Z were excluded upon objection.
 
            
 
                 During the hearing, claimant requested that official 
 
            notice be taken of the first report of injury in each file.  
 
            The presiding deputy thereupon belatedly discovered that 
 
            defendants Firestone and Cigna had failed to file a first 
 
            report in case number 976617, as ordered by the hearing 
 
            assignment order filed January 9, 1992.  The hearing 
 
            assignment order further specified that failure to file the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            first report prior to commencement of hearing would result 
 
            in an order closing the record to further evidence or 
 
            activity on the part of those defendants.  Accordingly, that 
 
            sanction was imposed.  Defendants subsequently offered a 
 
            first report in case number 976617 which was accepted by the 
 
            deputy for filing.  Official notice was taken of the first 
 
            report of injury in each case.
 
            
 
                                  ISSUES
 
 
 
            The parties have stipulated to the existence of an 
 
            employment relationship at all times relevant; that if 
 
            liability is established, to temporary total disability/ 
 
            healing period from June 26 through August 27, 1989; that 
 
            any permanent disability is to the left leg; to the facts 
 
            necessary to determine the compensation rate; that 
 
            affirmative defenses are waived; that medical benefits are 
 
            not in dispute; and, that defendants Firestone and Cigna 
 
            paid nine weeks of compensation at the rate of $466.85 prior 
 
            to hearing.
 
 
 
            Issues presented for resolution include:
 
            1.  Whether claimant sustained an injury arising out of and 
 
            in the course of his employment on December 8, 1988, or June 
 
            26, 1989;
 
            2.  Whether there exists a causal relationship between the 
 
            claimed injury and temporary or permanent disability;
 
            3.  The extent of permanent disability;
 
            4.  Whether claimant sustained an injury under chapter 85 or 
 
            an occupational disease under chapter 85A; and,
 
            5.  The extent of Second Injury Fund liability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Larry Hoch, 52 years of age at hearing, is a high 
 
            school graduate with work experience in farm labor, factory 
 
            work, gas station work, and various unspecified part-time 
 
            jobs held briefly while on layoff or strike during the 
 
            course of his employment with defendant Firestone.  This 
 
            employment began in March 1960, although claimant's 
 
            seniority date is August of that year due to a layoff 
 
            shortly after his first hire.  Claimant continues to work 
 
            for Firestone, although he anticipates retiring in about 
 
            five years.
 
            
 
                 Claimant also has training as an emergency medical 
 
            technician and has been an EMT and volunteer fire fighter 
 
            since 1978, being assistant chief for the last five years.
 
            
 
                 When claimant took work with Firestone, he was in good 
 
            health and had no problems with either knee.  He injured the 
 
            right knee on November 17, 1981, while twisting and lifting.  
 
            He underwent surgery at the hands of Stephen G. Taylor, 
 
            M.D., on January 25, 1982.  Dr. Taylor eventually released 
 
            claimant to return to work (in fact, his same job) with no 
 
            medical restrictions whatsoever, although he assigned an 
 
            eight percent impairment rating.
 
            
 
                 In late 1988, claimant was employed in the operation of 
 
            a stand-up jeep.  This gasoline-powered device was, as 
 
            indicated by its name, operated in a standing position.  The 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            right foot operated an accelerator pedal, while the left 
 
            foot operated a clutch/brake device.  This hinged pedal was 
 
            sprung under tension, so that it popped up if released and, 
 
            doing so, acted automatically as a brake.  Operation of the 
 
            stand-up jeep required constant use of the pedal, as it must 
 
            be kept constantly depressed while the machine is in motion.
 
            
 
                 The particular jeep assigned to claimant was 
 
            characterized by extremely high tension on the left foot 
 
            clutch/brake pedal.  Persons of lighter weight than claimant 
 
            had trouble even depressing it at all.
 
            
 
                 In late 1988, claimant had worked in the operation of 
 
            this particular jeep for about one to one and one-half 
 
            years.  After developing pain symptoms in the left leg, and 
 
            successfully bid into another job operating a different jeep 
 
            in a sitting position.  This did not cause further problems 
 
            to the knee.  Later, he transferred to a different 
 
            department in the "floatation" area and aggravated his knee 
 
            symptoms pushing around and generally manhandling huge tires 
 
            (some 1,400-1,500 pounds).
 
            
 
                 Claimant reported this problem to Firestone for the 
 
            first time on February 8, 1989.  The company doctor referred 
 
            him back to Dr. Taylor, who eventually performed an 
 
            arthroscopy and partial lateral meniscectomy to the left 
 
            knee on June 26, 1989.  Post-operative diagnosis was of a 
 
            complex tear of the lateral meniscus in the left knee with 
 
            Grade I degenerative arthritis of the lateral compartment 
 
            and patellofemoral joint of the knee.
 
            
 
                 The date of surgery was the first time claimant missed 
 
            work due to left knee problems.
 
            
 
                 Claimant returned to work in August 1989, but still had 
 
            symptoms.  On September 12, Dr. Taylor limited him to duty 
 
            requiring no more than 50 percent of his time on his feet.  
 
            However, by October 10, 1989, claimant was doing much better 
 
            and was released to full work duties on a PRN basis without 
 
            restriction of any kind.  Dr. Taylor has rated claimant as 
 
            having sustained a 10 percent permanent partial impairment 
 
            of the left leg and has causally related the problem to work 
 
            activities which "significantly aggravated his underlying 
 
            knee problem" and eventually led to the surgical procedure.
 
            
 
                 Claimant now works the same job in the floatation area 
 
            as was the case immediately prior to surgery.  He still has 
 
            no restrictions, except that the company physician (James 
 
            Blessman, M.D.) has recommended that he not work as a tire 
 
            builder due to an unrelated upper extremity problem 
 
            concerning which claimant has undergone two other surgical 
 
            procedures.  Mr. Hoch is now relieved from his volunteer 
 
            fire fighting duties because of a heart ailment requiring 
 
            angioplasty in March 1992.  This problem bears no 
 
            relationship to the subject work injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Defendants dispute whether claimant sustained an injury 
 
            arising out of and in the course of employment on either 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            date alleged, and further deny the existence of a causal 
 
            relationship between that injury and temporary or permanent 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 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).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v.urse of employment.  The injury resulted in 
 
            surgery which, itself, has left claimant with an impairment 
 
            of the left leg.  Dr. Taylor's assigned impairment rating of 
 
            10 percent is uncontradicted, consistent with agency 
 
            experience and is hereby accepted.
 
            
 
                 The leg is a scheduled member, the loss of which is 
 
            compensable during 220 weeks under Iowa Code section 
 
            85.34(2)(o).  Claimant is accordingly entitled to 22 weeks 
 
            of compensation for his 10 percent impairment to that 
 
            member.
 
            
 
                 But what is the date of injury?  This is significant in 
 
            that the compensation rate varies from December 8, 1988, to 
 
            June 26, 1989.
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 Although claimant first developed symptoms in 1988, 
 
            those symptoms later improved with a change of job and 
 
            became aggravated with yet another change.  Claimant had no 
 
            disability or medical expenses until undergoing surgery on 
 
            June 26, 1989, the first time he missed work.  The date of 
 
            injury is June 26, 1989.
 
            
 
                 The parties have stipulated to a gross weekly wage of 
 
            $859.36, marital status of married and entitlement to two 
 
            exemptions with respect to that injury.  The Guide to Iowa 
 
            Workers' Compensation Claim Handling in effect at that time 
 
            shows that an individual so situated is entitled to a 
 
            compensation rate of $492.65.
 
            
 
                 Claimant also asserts entitlement to benefits from the 
 
            Second Injury Fund of Iowa.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Other than his healing period of June 26, 1989, through 
 
            August 27, 1989, as per the parties' stipulation (nine 
 
            weeks), claimant has suffered no actual loss of earnings.  
 
            He has no medical restrictions attributable to either knee 
 
            injury which in any way diminish his ability to perform any 
 
            work for which he is otherwise suited by education and 
 
            experience.  Claimant's only residual problem is that of 
 
            pain and soreness when he is on his feet too long, 
 
            particularly when working a 12-hour day.  Pain alone, absent 
 
            some impact on earning capacity, is not equivalent to 
 
            industrial disability.  If claimant has any industrial 
 
            disability at all, it does not exceed the disability 
 
            attributable to his "first" and "second" injuries.  
 
            Accordingly, the Second Injury Fund of Iowa has no liability 
 
            on this claim.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 956038:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 In file number 976617:
 
            
 
                 Defendants Firestone Tire & Rubber Company and Cigna 
 
            shall pay unto claimant nine (9) weeks of healing period 
 
            benefits at the rate of four hundred ninety-two and 65/100 
 
            dollars ($492.65) per week commencing June 26, 1989.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Defendants Firestone Tire & Rubber Company and Cigna 
 
            shall pay unto claimant twenty-two (22) weeks of permanent 
 
            partial disability benefits at the rate of four hundred 
 
            ninety-two and 65/100 dollars ($492.65) per week commencing 
 
            August 28, 1989.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Costs are assessed to defendants Firestone Tire & 
 
            Rubber Company and Cigna pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants Firestone Tire & Rubber Company and Cigna 
 
            shall file claim activity reports upon compliance with this 
 
            decision pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Ms. Anne L. Clark
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803; 2901; 3202
 
                                                 Filed July 13, 1992
 
                                                 DAVID RASEY
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LARRY HOCH,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                 File Nos. 956038
 
                                                          976617
 
            BRIDGESTONE/FIRESTONE,   
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            CIGNA INSURANCE COMPANIES,    
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            1803; 3202
 
            Claimant had impairment ratings to both legs.  Where neither 
 
            injury resulted in any medical restrictions whatsoever, his 
 
            industrial disability, if any, did not exceed scheduled 
 
            member disability, so there was no Second Injury Fund 
 
            liability.
 
            
 
            2901
 
            Evidence and activity was cut off for failure to file a 
 
            first report of injury prior to hearing.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM CONDON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976627
 
            RIVER CITY TRUCKING &         :
 
            EXCAVATING,                   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Defendants did not supply the services of a court 
 
            reporter, and at the beginning the hearing both parties 
 
            agreed that this decision would serve as the official 
 
            transcript of the case
 
            
 
                 The record consists of live testimony from the 
 
            claimant; Everett Rewold, vice president of River City 
 
            Trucking & Excavating; Wayne Sterher; and, Arnold Barnett.  
 
            Claimant offered exhibits 1-3, which were received.
 
            
 
                 This matter was heard on December 19, 1991, at 
 
            Davenport, Iowa.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy has carefully considered all of 
 
            the evidence and finds the following facts:
 
            
 
                 Claimant, William Condon, was born on July 18, 1953.  
 
            He is a high school graduate, and currently works as a 
 
            construction laborer, laying sewer tile for various 
 
            construction projects.
 
            
 
                 In July of 1990, claimant worked for the defendant 
 
            employer as a truck driver and loader.  At one particular 
 
            job site, the drivers were required to load their own dump 
 
            trucks using a 950 wheel loader.  Apparently, this piece of 
 
            machinery is somewhat difficult to use.  Another truck 
 
            driver, Arnold Barnett, was attempting to load his truck 
 
            using the wheel loader.  Mr. Barnett, who testified at the 
 
            hearing, indicated that while he was loading the truck, 
 
            several dump trucks were waiting to be loaded.  One of these 
 
            trucks was being driven by the claimant.
 
            
 
                 Claimant became frustrated waiting for Mr. Barnett to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            finish loading his dump truck.  Claimant approached Mr. 
 
            Barnett and offered to show him how to run the equipment.  
 
            Claimant then contacted his supervisor, Everett Rowold, 
 
            explained the situation, and was told to assume the loader 
 
            duties.  Mr. Rowold, who also testified at the hearing, 
 
            indicated that claimant was an experienced end loader 
 
            operator, but that the company also allowed employees to use 
 
            the end loader to load their trucks as on-the-job training.  
 
            When claimant approached Mr. Barnett and told him that he 
 
            (claimant) was to take over loading the trucks, Mr. Barnett 
 
            refused to relinquish the controls.  Claimant stated that 
 
            Mr. Barnett called him an obscene name.  Claimant felt 
 
            intimidated, and hit Mr. Barnett.  A brawl developed between 
 
            the two men, and claimant's ear was injured.  He reported to 
 
            his supervisor, who told him to get medical treatment.  
 
            Claimant visited several doctors, and incurred medical bills 
 
            totaling $489.00 (Claimant's exhibit 1-3).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The sole issue to be addressed is whether claimant 
 
            received an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 24, 1990, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Defendants raise an affirmative defense under Iowa Code 
 
            section 85.16, and argue that claimant's acts constitute a 
 
            willful injury, and preclude a recovery under Iowa's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            workers' compensation laws.
 
            
 
                 In the case at bar, there is no dispute that claimant 
 
            threw the first punch.  However, there is enough evidence in 
 
            the record to show that claimant was, or felt, intimidated 
 
            by Mr. Barnett, and it would be contrary to the underlying 
 
            concept of workers' compensation law to select one overt act 
 
            out of a series of hostile verbal, psychological and/or 
 
            physical acts as the one that caused a quarrel or fight.
 
            
 
                 However, Iowa has statutory language which specifically 
 
            addresses initial acts of aggression.
 
            
 
                 Iowa Code section 85.16(1) provides:
 
            
 
                    No compensation under this chapter shall be 
 
                 allowed for an injury caused by:
 
            
 
                    1.  By the employee's willful intent to injure 
 
                 the employee's self or to willfully injure 
 
                 another.
 
            
 
                 Several agency decisions are instructive.  Felder v. 
 
            Howard Steel Co., Thirty-fourth Biennial Rep., Iowa Indus. 
 
            Comm'r 67, analyzed a similar situation on this manner:
 
            
 
                 The key phrase to be interpreted is what 
 
                 constitutes "willful intent to injure."  Larson in 
 
                 his treatise, supra, at 3-155 suggests the phrase 
 
                 contemplates "behavior of greater deliberations, 
 
                 gravity and culpability that the sort of thing 
 
                 that has sometimes qualified as aggression."  
 
                 According to Larson, the factors to be examined in 
 
                 evaluating this defense are:  the seriousness of 
 
                 claimant's initial assault and the weighing of 
 
                 premeditation against impulsiveness.  Larson sees 
 
                 consistency in decisions construing "willful 
 
                 intent to injure" in that "[p]rofanity, suffering, 
 
                 showing, rough handling, or other physical force 
 
                 not designed to inflict real injury" do not arise 
 
                 to the requisite degree of seriousness.
 
            
 
                 The analysis must lie with whether claimant's actions 
 
            were of such a magnitude as to be a willful intent to 
 
            injure, which mandates a discussion of the seriousness of 
 
            claimant's initial assault.
 
            
 
                 Claimant's actions go well beyond those such as 
 
            profanity, rough handling or other physical force not 
 
            designed to inflict real injury.  Claimant hit Mr. Barnett 
 
            hard enough to draw blood, an act which was intended to 
 
            injure another.  Then, claimant hit Mr. Barnett again.  
 
            These acts clearly show that claimant was acting as the 
 
            aggressor, and was intentionally trying to hurt Mr. Barnett.  
 
            And, even though the fight arose from employment conditions, 
 
            the statute does not require a showing that it was 
 
            employment related in order to compensate claimant for the 
 
            injuries he sustained.
 
            
 
                 Furthermore, Mr. Barnett testified that by the time 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant approached him the second time, he (Barnett) was 
 
            almost finished loading his truck.  It was unnecessary for 
 
            claimant to try and remove Barnett from the equipment, let 
 
            alone use physical force in so doing.
 
            
 
                 And, although claimant was told by his supervisor to 
 
            operate the loader, it was never suggested that claimant hit 
 
            or punch Barnett in order to carry out his instructions.
 
            
 
                 The undersigned does not condone employees resorting to 
 
            violence in the work place in order to make operations run 
 
            more smoothly.  It is particularly offensive that claimant 
 
            hit Mr. Barnett while Mr. Barnett was performing duties 
 
            required by the job.  Although claimant is not necessarily 
 
            precluded from recovery because he was the first aggressor, 
 
            the legislature has specifically addressed his actions as 
 
            stated in Iowa Code section 85.16(1).  Even though it was 
 
            shown that the fight arose solely from employment conditions 
 
            on the job site, claimant's aggressiveness takes him out of 
 
            his employment duties, and constitutes a willful intent to 
 
            injure another.  As a result, any injuries sustained by 
 
            claimant are not covered by workers' compensation laws.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That each party shall pay their own costs in pursuing 
 
            this claim.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Douglas C Scovil
 
            Attorney at Law
 
            2009 9th Ave
 
            Rock Island IL 61201
 
            
 
            Ms Carole J Anderson
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport IA 52801
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1100
 
                                          Filed December 31, 1991
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM CONDON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976627
 
            RIVER CITY TRUCKING &         :
 
            EXCAVATING,                   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant was the initial aggressor in a fist fight which 
 
            developed on a construction job site.
 
            Claimant threw two punches, the first of which drew blood.  
 
            He had approached the company employee on two occasions.  
 
            Following Felder v. Howard Steel Co., Thirty-fourth Biennial 
 
            Rep., Iowa Indus. Comm'r 67, claimant's actions were 
 
            analyzed focusing on the seriousness and premeditation of 
 
            the aggression.
 
            Held:  Claimant's actions were serious, and went well beyond 
 
            accepted acts of profane language and shoving or rough 
 
            handling.  His actions precluded a recovery (defendants 
 
            relied on Iowa Code section 85.16(1) as a defense) and were 
 
            found to constitute a willful intent to injure another.