BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         WILLIAM E. SMITH,             :
 
                                       :
 
              Claimant,                :
 
                                       :        File No. 976632
 
         vs.                           :
 
                                       :          A P P E A L
 
         CRST, INC. AND LINCOLN        :
 
         SALES AND SERVICE,            :        D E C I S I O N
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are:  whether the Iowa industrial 
 
         commissioner has jurisdiction over this matter and, if so, the 
 
         extent of claimant's industrial disability.  These are the only 
 
         issues raised by defendant who is the only appealing party.  
 
         Findings of fact and conclusions of law contained in the 
 
         arbitration decision that have not been preserved by raising the 
 
         issues will not be reviewed.  Therefore, the finding and 
 
         conclusion that CRST, Inc. and Lincoln Sales and Service had the 
 
         same business identity and that claimant was an employee of CRST, 
 
         Inc. will be applicable and accepted for purposes of this 
 
         decision.  Only those facts and the law relevant to the issues 
 
         raised on appeal will be considered.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              William E. Smith (hereinafter referred to as either Smith or 
 
         claimant) was born December 21, 1938 and completed the tenth 
 
         grade of high school.  He had schooling and training in the Air 
 
         Force for four years (1956-1960) and attended a year of 
 
         vocational training at Kirkwood Community College (1984) prior to 
 
         his employment as a truck driver (Transcript pages 33-39).  His 
 
         work experience includes working as a butcher for various meat 
 
         processing companies (Tr. pp. 40-41 and Joint Exhibit 8); a 
 
         materials handler; warehouseman; apartment manager and an 
 
         independent contractor delivering telephone books (Jt. Ex. 8 and 
 
         Tr. pp. 41-45).  He began working for CRST in March 1989 (Jt. 
 
         Ex. 8).
 
         
 
              Smith went through an employment orientation process in 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         Schererville, Indiana and while in Schererville signed documents 
 
         relative to becoming an employee (Tr. pp. 118-119).  He began 
 
         working for CRST as a semi-tractor driver in March 1989.  CRST is 
 
         an Iowa Corporation that maintains its principal place of 
 
         business in Iowa (Claimant's Ex. 2, p. 4; Cl. Ex. 7; and Cl. Ex. 
 
         9).  CRST is an interstate common and contract motor carrier of 
 
         property and it operates under Interstate Commerce Commission 
 
         authority (Cl. Ex. 9).  CRST maintains terminals in Cedar Rapids, 
 
         Iowa; Schererville, Indiana; Richmond, Indiana; and Oklahoma 
 
         City, Oklahoma (Tr. pp. 61, 118-119 and Defendant's Ex. L).
 
         
 
              When hired, Smith was a resident of Illinois.  During the 
 
         initial months of the employer-employee relationship Smith did 
 
         not reside in Iowa.  He did not work out of the employer's Iowa 
 
         terminal.  He did, however, receive directions from the 
 
         dispatcher located in Cedar Rapids, Iowa.  Claimant moved to 
 
         Cedar Rapids, Iowa in the spring of 1990 and has lived there 
 
         since (Tr. p. 58).  After he moved to Cedar Rapids, Iowa, he was 
 
         dispatched from there (Tr. p. 62).
 
         
 
              For dispatch dates from March 13, 1989 through December 28, 
 
         1989, Smith was dispatched 169 times.  Seventeen of those 169 
 
         times either the origination or destination was in Iowa.  Nine of 
 
         the 169 times involved both origination and destination in Iowa.  
 
         For dispatch dates January 1, 1990 through October 22, 1990, 
 
         Smith was dispatched 162 times.  Twenty-two of these 162 times 
 
         either the origination or the destination was in Iowa.  
 
         Thirty-one of the 162 times involved both origination and 
 
         destination in Iowa.  For the trips dispatched in 1990, Cedar 
 
         Rapids, Iowa was given as the origination 35 times; Schererville, 
 
         Indiana was given as the origination six times; Oklahoma City, 
 
         Oklahoma was given as the origination five times; and Richmond, 
 
         Indiana was given as the origination twice.  For dispatches in 
 
         1990 from these four cities, two-thirds (35 out of a total of 48) 
 
         were from Cedar Rapids, Iowa (Def. Ex. L).
 
         
 
              The trip which eventually resulted in his work-related 
 
         injury began from Cedar Rapids, Iowa on October 10, 1990 (Def. 
 
         Ex. L and Tr. p. 61).  On October 23, 1993 the truck in which 
 
         claimant was riding was involved in an accident on an interstate 
 
         highway near Salt Lake City, Utah (Tr. p. 65).
 
         
 
              Smith had degenerative changes in his spine which preexisted 
 
         the October 23, 1990 injury.  Extensive care and diagnostic tests 
 
         have been conducted.  None of the tests have shown any 
 
         physiological abnormality which resulted from the injury.  The 
 
         injury is therefore found to have been an aggravation of the 
 
         preexisting degenerative condition and a lumbar sprain or strain.  
 
         While the degenerative condition preexisted the injury, it was, 
 
         for the most part, asymptomatic.  The injury has caused it to 
 
         become symptomatic and as a result, it now limits Smith's 
 
         physical capabilities.  
 
         
 
              Smith's original care for the injury was provided by 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         orthopedic surgeon Lawrence Strathman, M.D.  The recuperation 
 
         from the injury, which is the subject of this case, was 
 
         compromised by an intervening automobile accident that happened 
 
         on or about February 6, 1991 (Def. Ex. D).  That automobile 
 
         accident produced post-traumatic headaches, a cervical injury and 
 
         injury to the claimant's previously injured low back.  It is 
 
         found that the injury to the low back, that occurred on February 
 
         6, 1991, was a further aggravation of the low back injury.  Most 
 
         of that second aggravation was temporary.  The automobile 
 
         accident is found to have not produced any significant permanent 
 
         or long-term change in the low back condition through it likely 
 
         delayed the healing process somewhat.  This finding is based upon 
 
         the assessments of the case from Lawrence Strathman, M.D., 
 
         Richard F. Neiman, M.D., and Ellen M. Ballard, M.D.  Those three 
 
         doctors seem to be fairly consistent in their assessment of this 
 
         case and their assessments are generally accepted as being 
 
         correct.  These opinions outweigh any contrary opinion by Daniel 
 
         J. McGuire, M.D.
 
         
 
              At the time of the February 6, 1991 automobile accident, 
 
         Smith was working on a part-time basis performing tasks which 
 
         might be described as quite menial.  He was working under a 
 
         restriction which limited him to 40 pounds of lifting and 40 
 
         minutes of sitting without being able to move from the seated 
 
         position.  The records seem to indicate that he was progressing, 
 
         though somewhat slowly (Jt. Ex. 2, pp. 13-14).  Dr. Strathman 
 
         expected that claimant would eventually have a good recovery 
 
         without any long-term effects from the truck accident (Def. Ex. 
 
         C, pp. 10-12).  By late March Dr. Strathman seemed to be of the 
 
         opinion that claimant was not progressing in his recovery.  A 
 
         functional capacity assessment was conducted on April 8 and 9, 
 
         1991 (Def. Ex. C, pp. 20-24).  It is therefore found that Dr. 
 
         Strathman was correct.  It is found that April 9, 1991 marks the 
 
         end of the period of time during which further recuperation from 
 
         the injury was reasonably anticipated.  When looking back at the 
 
         record as a whole, a substantial improvement in Smith's 
 
         capabilities does not appear to have occurred since April 9, 
 
         1991.  While it is recognized that there was some improvement in 
 
         his range of motion between December 1991 and May 1992, that 
 
         improved range of motion does not seem to have produced any 
 
         accompanied increase in his physical capabilities.  Claimant 
 
         attempted care under the direction of Dr. Neiman.  While that 
 
         care may have provided some benefit to Smith, there is no 
 
         indication in the record that it increased his physical 
 
         capabilities.  
 
         
 
              Dr. Neiman diagnosed claimant as being depressed but that 
 
         the depression responded to medication.  The record does not show 
 
         that the depression was disabling or that it, combined with 
 
         claimant's other symptoms, were disabling in the sense that they 
 
         made claimant any more unfit for work than he had been before the 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         onset of the depression or that he was after the depression had 
 
         been successfully treated by Dr. Neiman.  
 
         
 
              It is found that the headaches, cervical and upper back 
 
         complaints which limit Smith are not shown to have been caused by 
 
         the October 23, 1990 truck accident.  When Smith's employability 
 
         is assessed as though he had sustained the truck accident, but 
 
         had not sustained further injury in the automobile accident, it 
 
         is found that the greater weight of the evidence tends to 
 
         indicate that he would have had a reasonably good recovery, that 
 
         he would have been able to resume full-time employment performing 
 
         work with a medium or moderate exertional requirements though he 
 
         would have had some restrictions.  It is found likely that he 
 
         would not have been able to resume over-the-road truck driving 
 
         and that he would have continued to have some level of lifting 
 
         restriction and some restriction on his ability to remain seated 
 
         for extended periods of time.
 
         
 
              Dr. Strathman was claimant's treating physician following 
 
         the work injury.  He noted that claimant's complaints were 
 
         somewhat out of proportion to findings and that some of 
 
         claimant's limitations were self-limited (Def. Ex. C, pp. 7, 
 
         27-28 and Jt. Ex. 3, pp. 44-45, 50).  On February 6, 1991 a 
 
         therapist gave claimant a release to return to work with a 45 
 
         pound lifting restriction and a sitting restriction of 40 minutes 
 
         and set a goal of a 50 pound lifting restriction and prolonged 
 
         sitting up to two hours (Jt. Ex. 3, p. 38).  Dr. Strathman did 
 
         not assign claimant a functional impairment rating (Def. Ex. C, 
 
         p. 27).  Dr. Ballard, who examined claimant on June 15 and June 
 
         29, 1993, found that he had a five percent permanent partial 
 
         "disability" based on the lumbar strain connected to the truck 
 
         accident (Jt. Ex. 4, p. 9).  Dr. Neiman's later impairment rating 
 
         for claimant's lower back was nine percent (Jt. Ex. 5, p. 44).  
 
         In his deposition, taken May 13, 1993, Dr. Neiman was of the 
 
         opinion that claimant was incapable of being a cross-county type 
 
         of truck driver because of his work-related low back injury, but 
 
         was capable of doing short-haul type driving.  The restrictions 
 
         he indicated for claimant were repetitive lifting of 20-25 pounds 
 
         and a maximum of 35-40 pounds four times an hour.  Dr. McGuire 
 
         examined claimant on April 2, 1992 and found his neurological 
 
         examination basically normal and surgery unnecessary (Def. Ex. F, 
 
         p. 82).
 
         
 
              Claimant was referred to the Kirkwood Community College 
 
         Skill Center for the period of August 19, 1992 through April 23, 
 
         1993.  He was present for 80 days and absent for 68 days.  He 
 
         completed the program.  The counselor, Barbara Mussman, noted 
 
         that claimant did not show much drive and motivation nor much 
 
         initiative to become employed and at the time of leaving he had 
 
         not begun active job seeking (Jt. Ex. 7, pp. 30006-30007).  
 
         Another counselor noted on August 20, 1992 that claimant had near 
 
         average reading skills but had many math skill deficiencies (Jt. 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         Ex. 7, pp. 300014-300015).  When claimant's deposition was taken 
 
         on November 19, 1991 he had not made an effort to try to find any 
 
         light duty work (Def. Ex. A, p. 44).  In his deposition, taken on 
 
         April 22, 1993, claimant stated that following his work-related 
 
         injury he had applied to only one employer for a job (Def. Ex. B, 
 
         p. 74).
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              The first question to be resolved is whether the Iowa 
 
         industrial commissioner has jurisdiction over this matter.  
 
         Jurisdiction of the Iowa industrial commissioner for work 
 
         injuries suffered outside the state of Iowa is found in Iowa Code 
 
         section 85.71.  Iowa Code section 85.71 provides in relevant 
 
         part:
 
         
 
                 If an employee, while working outside the 
 
              territorial limits of this state, suffers an injury on 
 
              account of which the employee, or in the event of 
 
              death, the employee's dependents, would have been 
 
              entitled to the benefits provided by this chapter had 
 
              such injury occurred within this state, such employee, 
 
              or in the event of death resulting from such injury, 
 
              the employee's dependents, shall be entitled to the 
 
              benefits provided by this chapter, provided that at the 
 
              time of such injury:
 
         
 
                 1.  The employment is principally localized in this 
 
              state, that is, the employee's employer has a place of 
 
              business in this or some other state and the employee 
 
              regularly works in this state, or if the employee is 
 
              domiciled in this state, or
 
         
 
         This language has been interpreted and applied.
 
         
 
                 Applying these principles to section 85.71(1), we 
 
              first analyze the language and purpose of the 
 
              provision.  The express over-all purpose of section 
 
              85.71 is to specify employees who are entitled to Iowa 
 
              workers' compensation benefits for injuries sustained 
 
              during employment outside the territorial limits of 
 
              this state....
 
         
 
              ....
 
         
 
              Defining employment that "is principally localized in 
 
              this state" to allow benefits to be based exclusively 
 
              upon the domicile of the employee, with no part of the 
 
              employment relationship either originating or performed 
 
              in Iowa would, in our opinion, be arbitrary.
 
         
 
              ....
 
         
 
              The plain meaning of the enacting clause indicates that 
 
              the employee must perform the primary portion of his 
 
              services for the employer within the territorial 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
              boundaries of the State of Iowa or that such services 
 
              be attributable to the employer's business in this 
 
              state.
 
         
 
              ....
 
         
 
              Accordingly, we hold that domicile in Iowa alone is not 
 
              sufficient to entitle an employee who has sustained an 
 
              injury outside the state to benefits provided by the 
 
              Iowa Workers' Compensation Act.  There must be some 
 
              meaningful connection between domicile and the 
 
              employer-employee relationship....
 
         
 
         Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 533, 534 
 
         (Iowa 1981).
 
         
 
              [W]e held in Iowa Beef Processors, Inc. v. Miller that 
 
              Iowa domicile is insufficient to entitle a worker 
 
              injured during the course of employment outside the 
 
              state to Iowa benefits, absent some "meaningful 
 
              connection between domicile and the employer-employee 
 
              relationship."...
 
         
 
                 Claimant's previous award of benefits under Nebraska 
 
              workers' compensation law does not preclude award of 
 
              benefits under our compensation law.  In workers' 
 
              compensation cases it is unnecessary to identify the 
 
              jurisdiction with the greatest contacts and interest.  
 
              The test is not whether Iowa's interest exceeds or 
 
              excludes those of other states, but whether Iowa's 
 
              interest is itself sufficient, based on analysis of our 
 
              workers' compensation statutes....
 
         
 
              ....
 
         
 
              We must determine whether a meaningful relationship 
 
              existed between claimant's Iowa domicile and the 
 
              employer-employee relationship....
 
         
 
              ....
 
         
 
              Based on the enacting clause of section 85.71(1), we 
 
              ascribed to the legislature an intent that "the 
 
              employee must perform the primary portion of his 
 
              services for the employer within the territorial 
 
              boundaries of the State of Iowa or that such services 
 
              be attributable to the employer's business in this 
 
              state."...
 
         
 
              ....
 
         
 
              In neither instance were the employee's services 
 
              attributable to business transacted in this state, nor 
 
              was any portion of the employee's services performed 
 
              here....
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495, 498, 501, 502 
 
         (Iowa 1983)
 
         
 
                 In the case at bar, we, then, must determine whether 
 
              a meaningful relationship existed between Orr's Iowa 
 
              domicile and his employment with McNair Inc.  Our focus 
 
              is on the employer-employee relationship and whether 
 
              this relation existed within Iowa's boundaries.
 
         
 
              None of Orr's services were attributable to any of 
 
              McNair Inc.'s business transacted in Iowa.  On two 
 
              occasions Orr did assist his employer in transporting 
 
              equipment from Iowa to Oklahoma.  However, he was not 
 
              compensated for those tasks and those were not the 
 
              services for which he was hired by McNair Inc.  
 
              Therefore, we find no meaningful connection between 
 
              Orr's domicile and the employer-employee relationship 
 
              in this case.
 
         
 
         Orr v. McNair, 386 N.W.2d 145, 149 (Iowa App. 1986)
 
         
 
                 Regarding subsection (1), our supreme court has 
 
              held:
 
         
 
                   [D]omicile in Iowa alone is not sufficient to 
 
                   entitle an employee who has sustained an 
 
                   injury outside the state to benefits provided 
 
                   by the Iowa Workers' Compensation Act.  There 
 
                   must be some meaningful connection between 
 
                   domicile and the employer-employee 
 
                   relationship....
 
         
 
              However, the court reserved the question of how 
 
              substantial that connection must be to be "meaningful" 
 
              and merely stated the interpretation of subsection (1) 
 
              must be consistent with the model act.  Id.  The court 
 
              had previously noted:
 
         
 
                   [U]nder the model act employment is localized 
 
                   in a particular state when the employee 
 
                   regularly works in the state or is domiciled 
 
                   in the state and a substantial portion of the 
 
                   employee's working time is spent serving the 
 
                   employer in the state.
 
         
 
         Ewing v. George A. Hormel & Co., 428 N.W.2d 674, 675 (Iowa App. 
 
         1988)
 
         
 
              In the instant case claimant moved to Iowa in March 1990.  
 
         There is no argument that claimant was domiciled in Iowa at the 
 
         time of his October 23, 1990 work-related injury.  As the cases 
 
         above discuss domicile alone is not enough to trigger 
 
         jurisdiction under Iowa Code section 85.71(1).  There must also 
 
         be some meaningful connection between domicile and the 
 
         employer-employee relationship.  In this case there is a 
 
         meaningful relationship between claimant's Iowa domicile and the 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         employer-employee relationship.  The employer had a terminal in 
 
         Iowa.  The employee would regularly pick up the semi-tractor 
 
         trailer he was assigned to drive from that Iowa terminal (See 
 
         Def. Ex. L).  The employee was dispatched regularly from that 
 
         Iowa terminal.
 
         
 
              In approximately ten months of calendar year 1990 that the 
 
         employee drove, prior to his injury, 19 percent (31 out of 162) 
 
         trips had originations and destinations both in Iowa.  In this 
 
         same ten month period 14 percent (22 out of 162) trips either 
 
         originated or concluded in Iowa.  The employee regularly drove 
 
         trips that originated or concluded in Iowa or both originated and 
 
         concluded in Iowa.  Two-thirds (35 out of 48) of the times the 
 
         employee started a trip from a terminal location it was from the 
 
         Cedar Rapids terminal.  The trip which ultimately ended in the 
 
         employee's work injury originated from Cedar Rapids.
 
         
 
              All these factors distinguish the instant case from the 
 
         cases cited above where the employees had no or virtually no 
 
         relationship with their employment in the state.  In this case 
 
         there is a meaningful relationship between Smith's domicile and 
 
         the employer-employee relationship.  A substantial portion of the 
 
         employee's working time was spent serving the employer in this 
 
         state.  The employer-employee relationship existed in Iowa.  
 
         Smith's services were regularly attributable to CRST's business 
 
         transacted in Iowa.  The Iowa industrial commissioner has 
 
         jurisdiction over this matter pursuant to Iowa Code section 
 
         85.71(1).
 
         
 
              The next issue to be resolved is the extent of Smith's 
 
         industrial disability.
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. App. P. 14(f).
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 
 
         the Iowa court formally adopted the "odd-lot doctrine."  Under 
 
         that doctrine a worker becomes an odd-lot employee when an injury 
 
         makes the worker incapable of obtaining employment in any 
 
         well-known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         "so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist."  Guyton, 373 
 
         N.W.2d at 105.
 
         
 
              The burden of persuasion on the issue of industrial 
 
         disability always remains with the worker.  When a worker makes a 
 
         prima facie case of total disability by producing substantial 
 
         evidence that the worker is not employable in the competitive 
 
         labor market, the burden to produce evidence of suitable 
 
         employment shifts to the employer, however.  If the employer 
 
         fails to produce such evidence and if the trier of fact finds the 
 
         worker does fall in the odd-lot category, the worker is entitled 
 
         to a finding of total disability.  Guyton, 373 N.W.2d at 106.  
 
         Even under the odd-lot doctrine, the trier of fact is free to 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         determine the weight and credibility of evidence in determining 
 
         whether the worker's burden of persuasion has been carried, and 
 
         only in an exceptional case would evidence be sufficiently strong 
 
         as to compel a finding of total disability as a matter of law.  
 
         Guyton, 373 N.W.2d at 106.
 
         
 
              Claimant argues in his appeal brief that he is an odd-lot 
 
         employee.  Claimant has a limited functional impairment (three to 
 
         nine percent) and has not had surgical treatment for his work 
 
         injury.  Most importantly, Smith has made no meaningful attempt 
 
         to gain employment.  Making one application and looking at 
 
         newspaper ads is not a meaningful employment search.  A claimant 
 
         must demonstrate a reasonable effort to secure employment as part 
 
         of a prima facie showing that his is an odd-lot employee.  See 
 
         e.g. Emshoff v. Petroleum Transportation and Great West Casualty, 
 
         (Appeal Decision, March 31, 1987); Collins v. Friendship Village, 
 
         Inc., (Appeal Decision, October 31, 1988); Reed v. Glenwood State 
 
         Hospital School, (Appeal Decision May 24, 1991).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience 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 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 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         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.  Iowa Code section 85.34.
 
         
 
              Claimant was 51-years-old when the work injury occurred.  He 
 
         has not had surgical treatment and has a relatively low 
 
         functional impairment rating (three to nine percent).  His work 
 
         restrictions are consistent with the functional impairment 
 
         rating.  His prospects for retraining are not good although some 
 
         of this relates to his non-work-related auto accident and 
 
         resulting physical limitations.  His intellectual capabilities 
 
         and education are not favorable.  He is precluded from doing the 
 
         job he was performing at the time of his injury.  He cannot 
 
         return to long-distance truck driving.  His employer has not 
 
         rehired him and has not assisted in his vocational 
 
         rehabilitation.  His work history is primarily manual labor.  He 
 
         is not motivated to return to work.  He has not demonstrated 
 
         motivation to be retrained.  Because he has not returned to any 
 
         work his actual loss of earnings is unknown.  When all relevant 
 
         factors are considered Smith has suffered a 35 percent industrial 
 
         disability as a result of his October 23, 1990 work injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay William E. Smith eight and six-sevenths 
 
         (8 6/7) weeks of compensation for healing period at the rate of 
 
         three hundred fifty-one and 70/100 dollars ($351.70) per week 
 
         payable commencing February 7, 1991.  
 
         
 
              That defendants pay William E. Smith healing period and 
 
         temporary partial disability compensation based on the weekly 
 
         rate of three hundred fifty-one and 70/100 dollars ($351.70) per 
 
         week commencing October 23, 1990, and continuing through February 
 
         6, 1991.  Defendants are entitled to credit for the weekly 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         compensation previously paid under the laws of the state of 
 
         Indiana in the amount of three thousand eight hundred eighty-nine 
 
         and 20/100 dollars ($3,889.20).  
 
         
 
              That defendants pay William E. Smith one hundred 
 
         seventy-five weeks of compensation for permanent partial 
 
         disability at the rate of three hundred fifty-one and 70/100 
 
         dollars ($351.70) payable commencing April 10, 1991.  Defendants 
 
         are entitled to credit in the amount of four thousand four 
 
         hundred ten dollars ($4,410.00) for the permanent partial 
 
         disability compensation benefits previously paid under the laws 
 
         of the state of Indiana.
 
         
 
              That all unpaid weekly compensation be paid to William E. 
 
         Smith in a lump sum together with interest pursuant to section 
 
         85.30 computed from the date each payment came due until the date 
 
         of its actual payment.
 
         
 
              That claimant receive nothing in the way of additional 
 
         benefits under the provisions of the fourth unnumbered paragraph 
 
         of section 86.13 of the Code of Iowa.
 
         
 
              That defendants shall pay the costs of this matter including 
 
         transcription of the hearing and shall reimburse claimant for the 
 
         filing fee if previously paid by claimant.
 
         
 
              That defendant shall file claim activity reports as required 
 
         by this agency pursuant to rule 343 IAC 3.1(2).
 
         
 
              That all benefits, interest and costs awarded in this 
 
         decision are assessed against defendants jointly and severally.
 
         
 
              Signed and filed this ____ day of June, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas Wertz
 
         Attorney at Law
 
         4089 21st Ave SW  STE 114
 
         Cedar Rapids IA  52404
 
         
 
         Mr. Chris J. Scheldrup
 
         Attorney at Law
 
         2720 First Ave NE
 
         PO Box 1943
 
         Cedar Rapids IA  52406-1943
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 2303
 
                                               Filed June 24, 1994
 
                                               BYRON K. ORTON
 
                                         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            WILLIAM E. SMITH,   
 
                      
 
                 Claimant, 
 
                                                  File No. 976632
 
            vs.       
 
                                                    A P P E A L
 
            CRST, INC. AND LINCOLN   
 
            SALES AND SERVICE,                    D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            1803
 
            Poorly motivated claimant who was, nevertheless, foreclosed 
 
            from over-the-road truck driving awarded 35 percent 
 
            permanent partial disability.  Claimant was 51-years-old at 
 
            time of work injury to his lower back.
 
            
 
            2303
 
            Claimant was an Iowa resident who drove over-the-road for 
 
            employer both within and out of the State of Iowa.  Work 
 
            accident occurred in Utah.  Employee regularly drove in Iowa 
 
            and drove from a terminal located in Cedar Rapids.  Employee 
 
            regularly had trips either originate in Iowa or end in Iowa 
 
            or both originate and end in Iowa.  There was a meaningful 
 
            relationship between the employee's domicile and the 
 
            employer-employee relationship.  Iowa had jurisdiction over 
 
            this claim pursuant to Iowa Code section 85.71(l).
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM E. SMITH,             :
 
                                          :
 
                 Claimant,                :       File No. 976632
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            CRST, INC. and LINCOLN SALES  :       D E C I S I O N
 
            AND SERVICE,                  :
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            E. Smith against CRST, Inc., and Lincoln Sales and Service 
 
            based upon an injury that occurred on October 23, 1990.  
 
            Smith seeks compensation for healing period, permanent 
 
            disability and a penalty under section 86.13 of the Code.  
 
            The other issues in the case involve whether or not CRST, 
 
            Inc., is an employer of the claimant and whether the State 
 
            of Iowa has subject matter jurisdiction of this claim.  
 
            Based upon the subject matter jurisdiction issue 
 
            determination there is also an issue with regard to the rate 
 
            of compensation which should be paid depending upon whether 
 
            Iowa or Indiana law controls. 
 
            
 
                 This case was heard in Cedar Rapids, Iowa, on August 
 
            10, 1993.  The record consists of testimony from William E. 
 
            Smith, joint exhibits 1 through 8, claimant's exhibits 1 
 
            through 12, and defendants' exhibits A through I, L and N.  
 
            Official notice was taken of the motions which are part of 
 
            the agency file.  
 
                          
 
                          EMPLOYER-EMPLOYEE RELATIONSHIP
 
                          
 
                 Issue:  Smith asserts that CRST, Inc., was his employer 
 
            at the time of the injury.  CRST, Inc., denies the existence 
 
            of an employer-employee relationship, but Lincoln Sales and 
 
            Service admits that it was Smith's employer.  
 
            
 
                 Findings of Fact:  William E. Smith went to truck 
 
            driving school and then applied to drive a truck for CRST, 
 
            Inc., working through Lincoln Sales and Service.  The actual 
 
            application and other paper work associated with the hiring 
 
            all name Lincoln Sales and Service as the employer.  Lincoln 
 
            Sales and Service then leased its employees to CRST, Inc., 
 
            to drive the trucks used by CRST, Inc., in its trucking 
 
            business.  Lincoln Sales and Service performs no other 
 
            substantial functions other than to hire and supply drivers 
 
            to CRST, Inc.  It does not supply drivers to any other 
 
            trucking companies.  Exhibit 9 which is entitled "Operating 
 
            and Service Agreement" provides the written contract between 
 

 
            
 
            Page   2
 
            
 
            
 
            CRST, Inc., and Lincoln Sales and Service under which 
 
            drivers were purportedly leased.  It is particularly noted 
 
            that with regard to paragraph five as far as selecting 
 
            routes and controlling the activities of drivers that these 
 
            are all matters which were performed by CRST, Inc., not by 
 
            Lincoln Sales and Service, despite the terms of the 
 
            agreement to the contrary.  It is further interesting to 
 
            note, as shown in exhibit 8, that Lincoln Sales and Service 
 
            contracted with CRST, Inc., in order to have CRST, Inc., 
 
            manage and operate Lincoln Sales and Service.  Examination 
 
            of exhibit 7 shows that Lincoln Sales and Service and CRST, 
 
            Inc., are both Iowa corporations which have (1) the same 
 
            corporate address, (2) the same registered agent whose 
 
            address is at the office of the corporations and (3) the 
 
            same person serves as secretary treasurer for both 
 
            corporations.  Exhibit 7 further shows that the majority of 
 
            the persons who serve as either officer or director of one 
 
            of the corporations also serves as an officer or director of 
 
            the other.
 
            
 
                 The day-to-day activities that Smith performed as a 
 
            truck driver were exclusively within the control of CRST, 
 
            Inc.  It told him where to go, when to go, what truck to 
 
            drive, and what route to follow.  CRST, Inc., gave him 
 
            commendations and awards when he performed well (ex. 12, pp. 
 
            7-8).  It reprimanded him with warnings when he was not 
 
            performing well (ex. 12, pp. 1, 4, 6).  Lincoln Sales and 
 
            Service also exercised the right to impose discipline on 
 
            Smith (ex. 12, p. 5).  
 
            
 
                 It is clear from the record in this case that there 
 
            were no arms length transactions between CRST, Inc. and 
 
            Lincoln Sales and Service.  Both corporations were 
 
            controlled and operated by the same individuals.  They 
 
            operated as if they were one business with Lincoln Sales and 
 
            Service being merely a personnel office for CRST, Inc.  
 
            Lincoln Sales and Service functioned merely as a conduit 
 
            between CRST, Inc. and the persons who drove CRST, Inc.'s 
 
            trucks.  CRST, Inc. paid money to Lincoln Sales and Service 
 
            which in turn paid the salaries to the drivers such as 
 
            Smith.  It is clear that a great deal of effort was expended 
 
            in drafting lengthy and complex documents such as exhibits 8 
 
            and 9, yet when the actual day-to-day operations are viewed 
 
            it is clear that the two entities operated as though they 
 
            were one.  Lincoln Sales and Services merely functioned as a 
 
            conduit.  It had no other reason for existence and performed 
 
            no other function.  Since CRST, Inc., actually operated 
 
            Lincoln Sales and Service and Lincoln Sales and Service did 
 
            not do business with any trucking company other than CRST, 
 
            Inc., it is clear that Lincoln Sales and Service was not 
 
            engaged in independent business.  It is noted that CRST, 
 
            Inc. even provided the facilities and equipment with which 
 
            Lincoln Sales and Service operated (ex. 8, paragraph 5).  
 
            The fact that the employment arrangement with the drivers 
 
            contained a provision that all workers' compensation claims 
 
            would be covered by the state of Indiana is a very strong 
 

 
            
 
            Page   3
 
            
 
            
 
            indication that Lincoln Sales and Service existed only as a 
 
            device through which CRST, Inc., attempted to avoid the 
 
            workers' compensation laws of the state of Iowa as the same 
 
            applied to the persons who functioned as employees of CRST, 
 
            Inc.
 
            
 
                 It is clear from the record made in this case that 
 
            Lincoln Sales and Service is not a bona fide good faith 
 
            independent business entity.  It is merely a sham which was 
 
            created solely for the purpose of enabling CRST, Inc., to 
 
            avoid its legal obligations under the Iowa worker's 
 
            compensation laws and perhaps other laws and regulations of 
 
            the state and federal governments which come into play based 
 
            upon the existence of an employer-employee relationship.  It 
 
            is recognized that there are some good faith independent 
 
            employee leasing businesses, such as Manpower, Inc. and 
 
            Kelly Services, but Lincoln Sales and Service was not one of 
 
            them.  Lincoln Sales and Service was merely the alter-ego of 
 
            CRST, Inc.  It is noted that even in the defense of this 
 
            proceeding CRST, Inc. and Lincoln Sales and Service are 
 
            represented by the same attorney.
 
            
 
                 Conclusions of Law:  The law dealing with leased 
 
            employees is developing.  It is a well regarded proposition 
 
            that the employee of an independent contractor is not to be 
 
            considered an employee of the general contractor.  Krueger 
 
            v. Iowa Rails to Trails, Inc., 435 N.W.2d 391 (Ia. App. 
 
            1988); Bashford v. Slater, 252 Iowa 726, 108 N.W.2d 474 
 
            (1961); Larson, Workmen's Compensation Law, 85.61(3)(b).  
 
            That rule is not applicable in this case however, because 
 
            Lincoln Sales and Service was not an independent contractor.  
 
            It functioned exclusively as an arm of CRST, Inc.  The facts 
 
            in this case are much like those in the case Crane v. Meier, 
 
            332 N.W.2d 344 (Iowa 1982).  Meier was hired by a person by 
 
            the name of Werner.  Werner had a contract with Crane which 
 
            provided that Werner could not perform work for other siding 
 
            companies.  Crane exercised control over the employees hired 
 
            by Werner.  It was held that Werner therefore had authority 
 
            to hire employees to do the work for Crane Siding Company.  
 
            Despite the fact that Werner had the authority to hire and 
 
            fire those employees, Meier was nevertheless held to be an 
 
            employee of Crane.  
 
            
 
                 Section 85.18 of the Code states:  "No contract, rule, 
 
            or device whatsoever shall operate to relieve the employer, 
 
            in whole or in part, from any liability created by this 
 
            chapter except as herein provided."  It is clear that CRST, 
 
            Inc., went to a great deal of trouble and expense to create 
 
            Lincoln Sales and Service for no apparent purpose other than 
 
            to avoid workers' compensation liability and other legal 
 
            obligations which arise when an employer-employee 
 
            relationship exists.  It is clear that CRST, Inc., was the 
 
            employer of William E. Smith.  
 
            
 
                 Further the law dealing with identifying employers when 
 
            leased employees are the issue seems to be developing into a 
 
            quite logical, workable and fair status as evidenced by the 
 
            case Jones v. Sheller-Globe, Corp., 487 N.W.2d 88 (Iowa App. 
 

 
            
 
            Page   4
 
            
 
            
 
            1992).  In those situations the employee is prohibited by 
 
            the exlusive remedy provisions at section 85.20 from 
 
            bringing a tort action against both the labor broker and the 
 
            employer for whom the services are being performed.  The 
 
            workers' compensation recovery is the exclusive remedy only 
 
            as to claims against the employer.  If either were allowed 
 
            to escape from the workers' compensation remedy, then the 
 
            one which escaped liability under workers' compensation laws 
 
            should be subjected to liability under the tort laws.  The 
 
            better rule is that both are employers and that they are 
 
            jointly and severally liable under the workers' compensation 
 
            laws for the injury sustained by the employee.  This 
 
            situation is not greatly different than that in Carlson v. 
 
            Carlson, 346 N.W.2d 525 (Iowa 1984) and Beck v. Rounds, 332 
 
            N.W.2d 109 (Iowa App. 1982).  It is in the public interest 
 
            that all employees be covered by workers' compensation 
 
            insurance.  If either of the two employers defaults in its 
 
            obligation then the employee should be free to seek recovery 
 
            from the other.  The two employers should be free to 
 
            contract between themselves as to which will actually pay 
 
            the premiums for purchasing the insurance but it is 
 
            incumbent upon them to be certain that the insurance is in 
 
            fact purchased since if one defaults in its portion of the 
 
            obligation the other will be left holding the bag.  Those 
 
            two employers are in a much better position to be able to 
 
            acquire and monitor the activities of purchasing the 
 
            insurance than is the employee.  If someone is to suffer 
 
            from a breach of the agreement between the two employers, 
 
            then it should be the employers who made the agreement.  The 
 
            benefits paid by one should satisfy the obligations of both.  
 
            (There is some question about whether permanent or 
 
            indefinite leased employees should be treated differently 
 
            than temporaries.  A reasonable argument can be made that 
 
            the short-term temporary employee is an employee only of the 
 
            labor broker.  In this case, however, it is clear that 
 
            William Smith was not a temporary.  He was hired to drive 
 
            indefinitely for CRST, Inc.)  
 
            
 
                 It is therefore concluded that under any view of the 
 
            facts in this case it is clear that William E. Smith was an 
 
            employee of CRST, Inc., for purposes of workers' 
 
            compensation as well as an employee of Lincoln Sales and 
 
            Service.  
 
                    
 
                    SUBJECT MATTER JURISDICTION-SECTION 85.71
 
                    
 
                 Issue:  Smith contends that Iowa has subject matter 
 
            jurisdiction of his claim.  Defendants assert that Indiana 
 
            is the proper forum.
 
            
 
                 Findings of Fact:  It is clear, regardless of the fact 
 
            that CRST is actually the employer and that Lincoln Sales 
 
            and Service was acting as its agent or representative, that 
 
            the contract of hire was made in the state of Indiana.  When 
 
            hired, Smith was a resident of Illinois.  During the initial 
 
            months of the employer-employee relationship Smith did not 
 
            reside in Iowa.  He did not work out of the employer's Iowa 
 
            terminal.  He did, however, receive directions from the 
 

 
            
 
            Page   5
 
            
 
            
 
            dispatcher located in Cedar Rapids, Iowa.
 
            
 
                 Smith then moved to Cedar Rapids, Iowa.  He was 
 
            dispatched out of Cedar Rapids, Iowa.  He parked his truck 
 
            at the employer's main terminal at Cedar Rapids, Iowa, when 
 
            he was off duty.  Iowa became Smith's principle place of 
 
            residence and his domicile.  Smith was residing at Cedar 
 
            Rapids, Iowa, and had been dispatched from Cedar Rapids, 
 
            Iowa, when the injury which performs the basis for this case 
 
            occurred.  The injury was a traumatic event which occurred 
 
            in the state of Utah.  Following the injury, Smith returned 
 
            to Iowa and received medical care in the state of Iowa.  
 
            Smith was paid workers' compensation benefits under the 
 
            Indiana statues.  Apparently these were voluntary payments 
 
            and it is not known whether or not Indiana actually has 
 
            subject matter jurisdiction.  
 
            
 
                 Conclusions of Law:  Subject matter jurisdiction for 
 
            injuries which occur outside of this state must be based 
 
            under section 85.71 of the Code.  At the outset, it is clear 
 
            that the facts are such that subsections three and four are 
 
            not applicable.  The fact that payments were paid under the 
 
            laws of Indiana do not conclusively establish that the 
 
            Indiana workers' compensation laws are applicable but it is 
 
            a strong indication of such.  This analysis is made assuming 
 
            that Indiana does have jurisdiction.  It is also made based 
 
            upon the assumption that the state of Utah, where the 
 
            accident occurred, likewise has jurisdiction.  
 
            
 
                 It must be recognized at the outset that subsection one 
 
            of section 85.71 is somewhat unclear and can be given 
 
            various interpretations.  The Iowa statute is not completely 
 
            consistent with either Restatement (second) of Conflict of 
 
            Laws, section 181 or Counsel Of State Governments Model Act 
 
            Comprehensive Workman's Compensation Rehabilitation Law, 
 
            section 7(d)(4)(1963).  The term "principally localized" can 
 
            be given different meanings.  The last phrase of subsection 
 
            one which reads "...or if the employee is domiciled in this 
 
            state,..." constitutes a phrase which has not been 
 
            interpreted by the Iowa courts.  It is certain that the 
 
            employer, be it CRST, Inc., or Lincoln Sales and Service, 
 
            certainly has a place of business in Cedar Rapids, Iowa.  It 
 
            is further certain that Smith regularly received directions 
 
            regarding the employment activities he was directed to 
 
            perform from the Cedar Rapids terminal.  We thus have a case 
 
            in which the employer had a place of business in the state 
 
            of Iowa, the employee regularly worked from that place of 
 
            business and the employee was domiciled in this state.  
 
            
 
                 This issue is discussed at length in 4 Larson, 
 
            Workmen's Compensation Law, 87.42-87.71.  Much was made at 
 
            hearing about the fact that the employer required Smith to 
 
            sign a document, as part of his employment application 
 
            process, which states that workers' compensation issues will 
 
            be handled under the laws of the state of Indiana.  It is 
 
            well recognized that such a provision is void and illegal.  
 
            It violates section 85.18 of the Code of Iowa.  Such a 
 
            provision is simply ineffectual (4 Larson, 87.71, 85.72).  
 

 
            
 
            Page   6
 
            
 
            
 
            Simply stated, parties cannot, by contract, alter the 
 
            statutory plan for jurisdiction in workers' compensation 
 
            cases.  While William Smith might not have sufficient 
 
            knowledge and expertise to understand that fact, it is clear 
 
            that an employer such as CRST, Inc., would be fully aware of 
 
            the illegality of that contractual provision.  
 
            
 
                 It is well established that the mere domicile of an 
 
            employee in this state is not sufficient to grant 
 
            jurisdiction.  George H. Wentz, Inc. v. Sebasta, 337 N.W.2d 
 
            495 (Iowa 1983);  Iowa Beef Processors, Inc. v. Miller, 312 
 
            N.W.2d 530 (Iowa 1981); Ewing v. Geo. A. Hormel and Co., 428 
 
            N.W.2d 674 (Iowa App. 1988); and Orr v. McNair, 386 N.W.2d 
 
            145 (Iowa App. 1986).  Nevertheless, it is recognized that 
 
            in appropriate situations the place of residence or domicile 
 
            of the employee is a factor to be considered (4 Larson, 
 
            87.60).  The inclusion of the last four words in subsection 
 
            one of section 85.71 dealing with domicile in this state is 
 
            a statutory indication that the domicile of the employee is 
 
            a factor.  
 
            
 
                 Another factor is the location of the employer's 
 
            business.  Employer in this case is in the business of truck 
 
            transportation.  It operates across the country though its 
 
            principle office and principle terminal is in Cedar Rapids, 
 
            Iowa.  The location of the employer's place of business and 
 
            the significance of its operations in this state are another 
 
            factor (4 Larson, 87.42 - 87.71).  It can reasonably be 
 
            urged that a situation such as the one in this case, where 
 
            the employer has its principle place of business in this 
 
            state, the employee is domiciled in this state and the 
 
            employee regularly works from the employer's principle place 
 
            of business in this state constitutes sufficient facts to 
 
            make the employment principally localized in this state.  
 
            The interest of this state in this case is certainly 
 
            substantial since both the employer and employee are 
 
            residents and domiciliaries of this state.  While the 
 
            overwhelming majority of the work was actually performed 
 
            outside of the state of Iowa, the direction and control of 
 
            the work was transmitted to Smith and other CRST employees 
 
            from Cedar Rapids, Iowa.  The brain or control center for 
 
            the work remained in Cedar Rapids, Iowa.  Smith's job was to 
 
            travel but the routes started and ended in Iowa.  This case 
 
            is unlike Orr, 386 N.W.2d 145, because the Iowa business 
 
            location of that employer was of insignificant importance 
 
            with regard to the employee's work and work assignment.  In 
 
            this case, Smith's relationship with the state of Iowa is 
 
            much more substantial since there is a continuing and 
 
            recurring relationship with the state of Iowa since Iowa is 
 
            the base of operations.  Hiller v. Workman's Compensation 
 
            Appeal Board, 569 A. 2d 1024 (Pa. Commw. Ct. 1990).  In this 
 
            case it is clear that regardless of whether dealing with 
 
            Indiana or Iowa the employment contract did not provide for 
 
            all of the work to be performed outside of the state in 
 
            which the contract was made.  Nevertheless, in those cases 
 
            much weight is given to the center or base of operations 
 

 
            
 
            Page   7
 
            
 
            
 
            from which directions are given and from which control is 
 
            exercised [4 Larson, 87.42(c-e)].
 
            
 
                 Much litigation has occurred over the years attempting 
 
            to pinpoint the place at which a contract of hire is entered 
 
            into.  Numerous fictions have been made based supposedly 
 
            upon factual matters such as who made the final acceptance 
 
            or from where the person spoke when making that final 
 
            acceptance of an offer.  The ultimate fact of the matter is 
 
            that a contract of hire which is made when the parties are 
 
            located in different states at the time of the negotiations, 
 
            final offer and acceptance is made in both states from which 
 
            the parties speak.  Who gets in the last word should not 
 
            control the legal rights and responsibilities which flow 
 
            from the employment relationship.
 
            
 
                 A contract of hire, once made, is not concrete and 
 
            unyielding.  Like any other contract it can be rescinded, 
 
            renegotiated or modified.  As indicated in cases such as 
 
            Ewing the place of the making of a contract of hire is 
 
            subject to change every time any term of the contract of 
 
            hire is altered.  In this case, the initial contract of hire 
 
            was made in the state of Indiana.  It is possible that some 
 
            directives may have emanated from Cedar Rapids, Iowa, but 
 
            whether or not they did is not critical to the outcome.  The 
 
            fact critical to the outcome is that the contract of hire 
 
            was altered and remade when Smith moved to Cedar Rapids, 
 
            Iowa.  It was at that time he became an Iowa domiciliary and 
 
            operated out of the Iowa CRST terminal.  If his work as an 
 
            over-the-road truck driver is characterized as "not 
 
            principally localized in any state," the state of Iowa has 
 
            jurisdiction since the contract of hire under which he was 
 
            working at the time of injury was made in Cedar Rapids, 
 
            Iowa.  It is a contract separate and distinct from the 
 
            earlier contract which was made in the state of Indiana.  It 
 
            is very reasonable to urge, though unnecessary to decide, 
 
            that the state of Indiana lost jurisdiction at the time the 
 
            contract of hire was changed.  It is clear that Smith no 
 
            longer worked out of the Indiana terminal at the time of his 
 
            injury.  There was no significant contact between Smith's 
 
            employment and the state of Indiana, other than for the fact 
 
            that CRST chose to have a location in the state of Indiana 
 
            where some employee files were maintained and from which 
 
            payroll was computed and checks were issued.  The location 
 
            from which a paycheck is issued is of very minor 
 
            significance.  The location to which it is sent is of 
 
            significantly greater significance.  Johnson v. United 
 
            Airlines, 550 So. 2nd 124 (Fla. Dist. Ct. App. 1989) reh'g 
 
            denied (Nov. 13, 1989).  The doctrine of changing the place 
 
            of the situs of employment is approved in 4 Larson, 
 
            87.42(a).  
 
            
 
                 It is therefore concluded that the state of Iowa has 
 
            subject matter jurisdiction of this case.  This is so 
 
            because the employment was principally localized in this 
 
            state by virtue of the fact that the employer's main office 
 
            and principal terminal is located in Cedar Rapids, Iowa, 
 

 
            
 
            Page   8
 
            
 
            
 
            that Smith worked from that terminal at the time of his 
 
            injury and that Smith was a resident and domiciliary of the 
 
            state of state of Iowa at the time of his injury.  Further, 
 
            if it were to be held that the employment was not 
 
            principally localized in any state since a majority of 
 
            Smith's working time was not spent in any single state, 
 
            jurisdiction can be based upon section 85.71(2) because the 
 
            contract of hire was made when Smith changed from operating 
 
            out of the Indiana terminal to the Cedar Rapids, Iowa, 
 
            terminal.  That act constituted a substantial change in the 
 
            contract of hire and in fact resulted in a new or amended 
 
            contract of hire being made.  That contract of hire was made 
 
            in the state of Iowa.    
 
            
 
                 Healing period and permanent partial disability
 
            
 
                 Issues:  There is a dispute as to whether the healing 
 
            period was properly ended on or about February 9, 1991, or 
 
            whether it should continue, as claimant contends, until 
 
            December 18, 1991.  There is also a dispute with regard to 
 
            the extent of permanent disability compensation which should 
 
            be payable with the claimant contending he is totally 
 
            disabled with reliance on the odd-lot doctrine and with 
 
            defendants asserting that the disability is minimal.  
 
            
 
                 Findings of Fact:  William E. Smith had degenerative 
 
            changes in his spine which preexisted the October 23, 1990 
 
            injury.  Extensive care and diagnostic tests have been 
 
            conducted.  None of the tests have shown any physiological 
 
            abnormality which resulted from the injury.  The injury is 
 
            therefore found to have been an aggravation of the 
 
            preexisting degenerative condition and a lumbar sprain or 
 
            strain.  While the degenerative condition preexisted the 
 
            injury, it was, for the most part, asymptomatic.  The injury 
 
            has caused it to become symptomatic and as a result, it now 
 
            limits Smith's physical capabilities.  
 
            
 
                 Smith's original care for the injury was provided by 
 
            orthopedic surgeon Lawrence Strathman, M.D.  The 
 
            recuperation from the injury which is the subject of this 
 
            case was compromised by an intervening automobile accident 
 
            that happened on or about February 6, 1991 (ex. D).  That 
 
            automobile accident produced posttraumatic headaches, a 
 
            cervical injury and injury to the claimant's previously 
 
            injured low back.  It is found that the injury to the low 
 
            back that occurred on February 6, 1991, was a further 
 
            aggravation of the low back injury.  Most of that second 
 
            aggravation was temporary.  The automobile accident is found 
 
            to have not produced any significant permanent or long-term 
 
            change in the low back condition through it likely delayed 
 
            the healing process somewhat.  This finding is based upon 
 
            the assessments of the case from Lawrence Strathman, M.D., 
 
            Richard F. Neiman, M.D., and Ellen M. Ballard, M.D.  Those 
 
            three doctors seem to be fairly consistent in their 
 
            assessment of this case and their assessments are generally 
 
            accepted as being correct.  Daniel J. McGuire, M.D., is a 
 
            physician to whom defendants commonly refer patients with 
 
            back injuries.  Dr. McGuire has a pattern in cases before 
 

 
            
 
            Page   9
 
            
 
            
 
            this agency of providing the assessment which is the most 
 
            favorable to the defendants in comparison to assessments 
 
            from all the other physicians who are involved in the cases.  
 
            His assessments on issues of causation, impairment ratings 
 
            and activity restrictions in cases before this agency are 
 
            commonly more favorable to the defense of the case than that 
 
            of any other physician involved in the case.  Accordingly, 
 
            the weight given to his assessments is reduced accordingly.  
 
            The fact that defendants would send someone from Cedar 
 
            Rapids, Iowa, to Des Moines for an assessment by Dr. McGuire 
 
            is a strong indication that they expect an assessment which 
 
            is very favorable to them when a number of well regarded 
 
            orthopedic surgeons are available in the Cedar Rapids-Iowa 
 
            City area.  Accordingly, Dr. McGuire's assessment is 
 
            rejected where it differs from that of the other physicians.
 
            
 
                 At the time of the February 6, 1991, automobile 
 
            accident, Smith was working on a part-time basis performing 
 
            tasks which might be described as quite menial.  He was 
 
            working under a restriction which limited him to 40 pounds 
 
            of lifting and 40 minutes of sitting without being able to 
 
            move from the seated position.  The records seem to indicate 
 
            that he was progressing, though somewhat slowly, (jt. ex. 2, 
 
            pp. 13-14), Dr. Strathman expected that claimant would 
 
            eventually have a good recovery without any long-term 
 
            effects from the truck accident (def. ex. C, pp. 10-12).  By 
 
            late March Dr. Strathman seemed to be of the opinion that 
 
            claimant was not progressing in his recovery.  A functional 
 
            capacity assessment was conducted on April 8 and 9, 1991 
 
            (def. ex. C, pp. 20-24).  It is therefore found that Dr. 
 
            Strathman was correct.  It is found that April 9, 1991, 
 
            marks the end of the period of time during which further 
 
            recuperation from the injury was reasonably anticipated.  
 
            When looking back at the record as a whole, a substantial 
 
            improvement in Smith's capabilities does not appear to have 
 
            occurred since April 9, 1991.  While it is recognized that 
 
            there was some improvement in his range of motion between 
 
            December 1991 and May 1992, that improved range of motion 
 
            does not seem to have produced any accompany increase in his 
 
            physical capabilities.  Claimant attempted care under the 
 
            direction of Dr. Neiman.  While that care may have provided 
 
            some benefit to Smith, there is no indication in the record 
 
            that it increased his physical capabilities.  
 
            
 
                 Dr. Neiman diagnosed claimant as being depressed but 
 
            that the depression responded to medication.  The record 
 
            does not show that the depression was disabling or that it, 
 
            combined with claimant's other symptoms, were disabling in 
 
            the sense that they made claimant anymore unfit for work 
 
            than he had been before the onset of the depression or that 
 
            he was after the depression had been successfully treated by 
 
            Dr. Neiman.  
 
            
 
                 It is found that the headaches, cervical and upper back 
 
            complaints which limit William Smith are not shown to have 
 
            been caused by the October 23, 1990 truck accident.  When 
 
            Smith's employability is assessed as though he had sustained 
 

 
            
 
            Page  10
 
            
 
            
 
            the truck accident, but had not sustained further injury in 
 
            the automobile accident, it is found that the greater weight 
 
            of the evidence tends to indicate that he would have had a 
 
            reasonably good recovery, that he would have been able to 
 
            resume full-time employment performing work with a medium or 
 
            moderate exertional requirements though he would have had 
 
            some restrictions.  It is found likely that he would not 
 
            have been able to resume over-the-road truck driving and 
 
            that he would have continued to have some level of lifting 
 
            restriction and some restriction on his ability to remain 
 
            seated for extended periods of time.
 
            
 
                 Conclusions of Law:  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. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 
 
            1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah 
 
            Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An 
 
            occupational disease covered by chapter 85A is specifically 
 
            excluded from the definition of personal injury.  Iowa Code 
 
            section 85.61(5); Iowa Code section 85A.8.
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  While a claimant is not 
 
            entitled to compensation for the results of a preexisting 
 
            injury or disease, its mere existence at the time of a 
 
            subsequent injury is not a defense.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            materially aggravated, accelerated, worsened or lighted up 
 
            so that it results in disability, claimant is entitled to 
 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 

 
            
 
            Page  11
 
            
 
            
 
                   It has been found that the claimant's recuperation 
 
            from the injury was substantially completed on April 9, 
 
            1991, and that he thereafter did not make any noticeable 
 
            improvement in his physical capabilities.  It is therefore 
 
            concluded that his entitlement to healing period 
 
            compensation ends on April 9, 1991.  Pitzer v. Rowley, No. 
 
            290/92-776, Iowa Supreme Court (October 10, 1993).  In this 
 
            case is can be reasonably urged that the care from Dr. 
 
            Neiman should extend the healing period.  It certainly 
 
            appears as though it was reasonable to attempt further 
 
            treatment but it cannot be said that the success was 
 
            particularly probable or expected.  In view of the amount of 
 
            time that had elapsed since the original injury, the change 
 
            of care from Dr. Neiman being successful was merely 
 
            possibly, not probable.  That care therefore does not 
 
            constitute a basis for extending the healing period 
 
            entitlement, particularly where it was unsuccessful from the 
 
            view point of its impact in enabling claimant to return to 
 
            work.  
 
            
 
                 In view of the intervening automobile accident, the 
 
            claimant's failure to return to work was not voluntary.  It 
 
            does not constitute a basis for terminating benefits.  He is 
 
            therefore entitled to recover full healing period 
 
            compensation benefits from February 6, 1991 through April 9, 
 
            1991.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Total disability does not mean a state of absolute 
 
            helplessness.  Permanent total disability occurs where the 
 
            injury wholly disables the employee from performing work 
 
            that the employee's experience, training, education, 
 
            intelligence and physical capacities would otherwise permit 
 
            the employee to perform.  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 
 
            219 Iowa 587, 258 N.W. 899 (1935).
 
            
 
                 A finding that claimant could perform some work despite 
 
            claimant's physical and educational limitations does not 
 

 
            
 
            Page  12
 
            
 
            
 
            foreclose a finding of permanent total disability, however.  
 
            See Chamberlin v. Ralston Purina, File No. 661698 (App. 
 
            October 29, 1987); Eastman v. Westway Trading Corp., II Iowa 
 
            Industrial Commissioner Report 134 (App. 1982).
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist."  Guyton, 373 N.W.2d at 105.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  When a worker 
 
            makes a prima facie case of total disability by producing 
 
            substantial evidence that the worker is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of suitable employment shifts to the employer, however.  If 
 
            the employer fails to produce such evidence and if the trier 
 
            of fact finds the worker does fall in the odd-lot category, 
 
            the worker is entitled to a finding of total disability.  
 
            Guyton, 373 N.W.2d at 106.  Even under the odd-lot 
 
            doctrine, the trier of fact is free to determine the weight 
 
            and credibility of evidence in determining whether the 
 
            worker's burden of persuasion has been carried, and only in 
 
            an exceptional case would evidence be sufficiently strong as 
 
            to compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.
 
            
 
                 The demeanor exhibited by William Smith at hearing is 
 
            consistent with the comments made in the discharge report 
 
            from Kirkwood Community College dated May 7, 1993 (ex. 7).  
 
            Claimant does not show much drive or motivation.  He likely 
 
            has been compliant with instructions given to him but has 
 
            not shown any initiative on his own as far as significant 
 
            attempts to resume employment.  The case is one in which the 
 
            anatomical and physiological results of the injury appear to 
 
            be minimal.  They do appear, however, to have been 
 
            sufficient to make over-the-road, long distance truck 
 
            driving beyond the claimant's physical capabilities.  As 
 
            shown by the wages Smith earned in this case that occupation 
 
            provides a very good rate of earnings in comparison to other 
 
            occupations which would be expected to be available to a 
 
            person with Smith's education and general work 
 
            qualifications.  The fact that he can no longer engage in 
 
            over-the-road truck driving, his preferred occupation, is 
 
            convincing evidence that he has experienced a significant 
 
            loss of earning capacity.  In view of the fact that his 
 
            efforts at obtaining re-employment have been less than 
 
            stellar, the fact of his current unemployment is given 
 
            little weight in the assessment of this case.  Smith is 
 
            capable of working, though his physical capabilities are 
 
            certainly less than they were prior to the injury which is 
 
            the subject of this case.  The case must be assessed based 
 

 
            
 
            Page  13
 
            
 
            
 
            upon the best evidence available as though the February 
 
            automobile accident had not occurred.  The subsequent slip 
 
            and fall does not appear to have been a significant injury 
 
            based upon the records which are in evidence.    
 
            
 
                 When considering this claimant's loss of access to his 
 
            chosen career field, as well as all the other material 
 
            factors affecting industrial disability, it is determined 
 
            that William E. Smith sustained a 35 percent permanent 
 
            partial disability as a result of the October 23, 1990 truck 
 
            accident.  This entitles him to recover 175 weeks of 
 
            permanent partial disability compensation payable commencing 
 
            April 10, 1991.  The amount past due and owing draws 
 
            interest at the rate of 10 percent per annum pursuant to 
 
            section 85.30 of the Code.
 
                         
 
                         RATE OF COMPENSATION AND CREDITS
 
                         
 
                 Issues:  The parties stipulated to claimant's rate of 
 
            earnings as providing a gross average weekly wage of $626.19 
 
            per week.  Claimant contends that the rate should be based 
 
            on the Iowa benefit booklet while defendants contend that 
 
            the law of the state of Indiana should be controlling.
 
            
 
                 Findings of Fact:  It is found that the stipulation is 
 
            correct.  It was further stipulated that claimant was single 
 
            and entitled to one exemption.  It was also stipulated that 
 
            claimant had been paid weekly benefits under the laws of the 
 
            state of Indiana in the amount of $3,889.20 for temporary 
 
            total and temporary partial disability.  It was further 
 
            stipulated that he was paid $4410 in permanent partial 
 
            disability compensation benefits.  
 
            
 
                 Conclusions Of Law:  Since it has been determined that 
 
            the state of Iowa has jurisdiction of this proceeding, it 
 
            only follows that Iowa law controls all portions of the 
 
            proceeding.  It was further stipulated that Smith was single 
 
            and entitled to one exemption, therefore, based upon 
 
            earnings of $626.19 per week, the correct weekly rate of 
 
            compensation is $351.70 per week.  The law is well settled 
 
            that benefits paid under the laws of another state are 
 
            entitled to full faith and credit when concurrent 
 
            jurisdiction exits, as it does in this case.  Defendants are 
 
            therefore entitled to credit for all amounts paid under the 
 
            laws of the state of Indiana regardless of whether or not 
 
            those amounts were correct and regardless of whether or not 
 
            the state of Indiana actually had jurisdiction.  Thomas v. 
 
            Washington Gas Light Co., 448 U.S. 261 100 S. Ct. 2647, 65 
 
            L.Ed. 2nd 757 (1980); Wentz, 337 N.W.2d 495.  It has also 
 
            been held that this agency has no statutory authority to 
 
            apply the law of another jurisdiction when deciding a case 
 
            in this jurisdiction.  Snyder v. Continental Grain Co., II-1 
 
            Iowa Industrial Commissioner Decisions 363 (1985).
 
            
 
                                     PENALTY
 
            
 
                 Findings of Fact:  There was a bona fide good faith 
 
            dispute with regard to whether or not the state of Iowa had 
 
            subject matter jurisdiction over this claim.  
 
            
 

 
            
 
            Page  14
 
            
 
            
 
                 Conclusions of Law:  In view of the bona fide good 
 
            faith dispute, there is no basis of imposition of a penalty.  
 
            Covia v. Robinson, No. 302/92-1769, Iowa Supreme Court 
 
            (Iowa 1993).
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay William E. 
 
            Smith eight and six-sevenths (8 6/7) weeks of compensation 
 
            for healing period at the rate of three hundred fifty-one 
 
            and 70/100 dollars ($351.70) per week payable commencing 
 
            February 7, 1991.  
 
            
 
                 It is further ordered that defendants pay William E. 
 
            Smith healing period and temporary partial disability 
 
            compensation based on the weekly rate of three hundred 
 
            fifty-one and 70/100 dollars ($351.70) per week commencing 
 
            October 23, 1990, and continuing through February 6, 1991.  
 
            Defendants are entitled to credit for the weekly 
 
            compensation previously paid under the laws of the state of 
 
            Indiana in the amount of three thousand eight hundred 
 
            eighty-nine and 20/100 dollars ($3,889.20).  
 
            
 
                 It is further ordered that defendants pay William E. 
 
            Smith one hundred seventy-five weeks of compensation for 
 
            permanent partial disability at the rate of three hundred 
 
            fifty-one and 70/100 dollars ($351.70) payable commencing 
 
            April 10, 1991.  Defendants are entitled to credit in the 
 
            amount of four thousand four hundred ten dollars ($4410) for 
 
            the permanent partial disability compensation benefits 
 
            previously paid under the laws of the state of Indiana.
 
            
 
                 It is further ordered that all unpaid weekly 
 
            compensation be paid to William E. Smith in a lump sum 
 
            together with interest pursuant to section 85.30 computed 
 
            from the date each payment came due until the date of its 
 
            actual payment.
 
            
 
                 It is further ordered that claimant receive nothing in 
 
            the way of additional benefits under the provisions of the 
 
            fourth unnumbered paragraph of section 86.13 of the Code of 
 
            Iowa.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants.
 
            
 
                 It is further that all benefits, interest and costs 
 
            awarded in this decision are assessed against defendants 
 
            jointly and severally.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Thomas Wertz
 
            Attorney at Law
 
            4089 21st Ave SW STE 114
 
            Cedar Rapids, Iowa  52404
 
            
 
            Mr. Chris J. Scheldrup
 
            Attorney at Law
 
            2720 First Ave NE
 
            PO Box 1943
 
            Cedar Rapids, Iowa  52406-1943
 
            
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                          2001 2003 1802 1803 1703 2303 
 
                                          4000.2
 
                                          Filed November 15, 1993
 
                                          Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            WILLIAM E. SMITH,   
 
                      
 
                 Claimant,                       File No. 976632
 
                      
 
            vs.                               A R B I T R A T I O N
 
                            
 
            CRST, INC. and LINCOLN SALES         D E C I S I O N
 
            AND SERVICE,   
 
                      
 
                 Self-Insured,  
 
                 Employer,       
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            2001
 
            The CRST-Lincoln Sales and Service employee leasing 
 
            agreement was held to be sham.  The two corporations were 
 
            not independent entities.  They had interlocking 
 
            directorships, Lincoln Sales and Service did business with 
 
            no one except CRST and had a contract under which CRST 
 
            managed an operated Lincoln Sales and Service.  Claimant was 
 
            held to be an employee of both Lincoln Sales and Service and 
 
            CRST.  Whenever a leased employee situation exists, it was 
 
            held that the employee is free to pursue the claim against 
 
            either or both of the two employers involved and that the 
 
            liability of the employers is joint and several.
 
            
 
            2303
 
            Claimant was hired in Indiana and worked out of an Indiana 
 
            terminal as an over-the-road truck driver.  He later moved 
 
            to Cedar Rapids and began operating out of the Cedar Rapids 
 
            terminal.  He was injured in Utah.  It was held that there 
 
            were two possible bases for jurisdiction.  The move to Cedar 
 
            Rapids constituted a change in the employment contract and 
 
            that as a result thereof the new employment contract was 
 
            made in the state of Iowa rather than Indiana.  It was 
 
            further held that under section 85.71 that when an employer 
 
            has its principle place of business in the state of Iowa and 
 
            the employee is an Iowa domiciliary who operates out of that 
 
            principle place of business that the employment is 
 
            principally localized in the state of Iowa, even though the 
 
            employee does not spend a majority of his working time in 
 
            the state of Iowa.  
 

 
            
 
            Page   2
 
            
 
            
 
            1802
 
            Healing period ended when initial treating orthopedic 
 
            surgeon determined that further improvement was not 
 
            anticipated.  Subsequent care by a different physician which 
 
            was not successful at materially increasing the claimant's 
 
            employability was held to not extend the healing period.  
 
            
 
            1803
 
            Poorly motivated claimant who was, nevertheless, foreclosed 
 
            from over-the-road truck driving awarded 35 percent 
 
            permanent partial disability.
 
            
 
            1703 2303
 
            Defendants granted credit for benefits paid under the law of 
 
            the state of Indiana.  
 
            
 
            4000.2
 
            There was a bona fide good faith dispute regarding subject 
 
            matter jurisdiction and that was held sufficient to deny any 
 
            claim for penalty.
 
            
 
 
            
 
           
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            BRADLEY LOFTSGARD,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                            File Nos. 976635/976636
 
            WALTER FARMS, INC.,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            GRINNELL MUTUAL,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                   ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Defendants state the following issues on 
 
            appeal:
 
            1.  The Deputy Industrial Commissioner erred in finding that 
 
            Claimant incurred an occupational disease (asthma) as a 
 
            result of and arising out of and in the course of his 
 
            employment at Defendant/Employer's farm on September 9, 
 
            1990.
 
            2.  The Deputy Industrial Commissioner erred in finding that 
 
            Claimant proved by the greater weight of the evidence that 
 
            Claimant's employment at Walter Farms, Inc. caused 
 
            compensable permanent disability.
 
            3.  The Deputy Industrial commissioner erred in determining 
 
            that claimant sustained his burden of proof with regard to a 
 
            30 percent award of industrial disability benefits
 
            4.  The Deputy Industrial Commissioner erred in including 
 
            Claimant's income from hog sales in Claimant's rate since 
 
            Claimant himself had declared such income for tax purposes 
 
            as profit from his business.
 
            Claimant states the following issues on cross-appeal:
 
            I. The Deputy Industrial Commissioner was correct in finding 
 
            claimant's occupational disease arose out of and in the 
 
            course of his employment with the employer.
 
            II. The Deputy Industrial Commissioner was correct in 
 
            determining that claimant's employment caused permanent 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability.
 
            III. Claimant is entitled to more than 30 percent industrial 
 
            disability.
 
            IV. The Deputy Industrial Commissioner correctly included 
 
            claimant's so called "hog sales commissions" in claimant's 
 
            income.
 
            V. The Deputy Industrial Commissioner erred in failing to 
 
            include more in claimant's average weekly wage.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed April 20, 1992 are adopted as final agency 
 
            action.
 
            
 
                             CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed April 20, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury or occupational 
 
            disease on July 2, 1990, or September 9, 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury or 
 
            occupational disease of July 2, 1990 or September 9, 1990, 
 
            is causally related to the disability on which he now bases 
 
            his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Iowa workers' compensation law distinguishes 
 
            occupational diseases from work injuries.  An occupational 
 
            disease is a disease which arises out of and in the course 
 
            of the employee's employment.  The disease must have a 
 
            direct causal connection with the employment and must follow 
 
            as a natural incident from injurious exposure occasioned by 
 
            the nature of the employment.  While the disease need not be 
 
            foreseeable or expected, after its contraction, it must 
 
            appear to have had its origin in a risk connected with the 
 
            employment and to have resulted from that risk.  A disease 
 
            which follows from a hazard to which an employee has or 
 
            would have been equally exposed outside of the occupation is 
 
            not a compensable occupational disease.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The claimant need meet only two basic requirements to 
 
            prove causation of an occupational disease.  First, the 
 
            disease must be causally related to the exposure to the 
 
            harmful conditions in the field of employment.  Second, the 
 
            harmful conditions must be more prevalent in the employment 
 
            than in everyday life or other occupations.  Section 85A.8; 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Where an employee is injuriously exposed to hazardous 
 
            conditions producing occupational disease while employed by 
 
            several successive employers, the employer where the 
 
            employee was last injuriously exposed is liable for the 
 
            total disability.  Doerfer Div. of CCA v. Nicol, 359 N.W.2d 
 
            428 (Iowa 1984).
 
            
 
                 To be compensable, an aggravation of an occupational 
 
            disease must be more than a temporary aggravation curable by 
 
            removal from the exposure.  McNeil v. Grove Feed Mill, II 
 
            Iowa Industrial Commissioner Report 261 (App. 1981).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            *****
 
            [The medical evidence consists of a rating of permanent 
 
            impairment by Dr. McMullan of ten percent.  However, Dr. 
 
            McMullan acknowledged that he did not rely on the AMA Guides 
 
            to the Evaluation of Permanent Impairment.  Although the AMA 
 
            Guides are not the only source of evaluation that can be 
 
            utilized in these proceedings, they are the source that have 
 
            been recognized by our rules.  In addition, the fact that 
 
            Dr. McMullan did not offer a detailed basis as to how he 
 
            arrived at the rating tends to detract from the weight the 
 
            rating is entitled to.
 
            Dr. Zorn, on the other hand, did rely on the AMA Guides, and 
 
            concluded that claimant had no permanency.  Taken as a 
 
            whole, the record indicates that, whether or not claimant 
 
            had been diagnosed with asthma as a child, claimant has an 
 
            underlying susceptibility to asthmatic reactions when 
 
            exposed to dusts and other irritants.  The record also shows 
 
            that when removed from exposure to these irritants, claimant 
 
            is not symptomatic.  It cannot be concluded that claimant 
 
            has a permanent condition resulting from his work exposure 
 
            under these facts.  Claimant's condition is disabling only 
 
            when he is exposed to irritants, and is not disabling when 
 
            he is removed from the irritants.  Claimant's disability is 
 
            therefore temporary, rather than permanent, in nature.
 
            It appears that, whether diagnosed as asthma or not, 
 
            claimant has a preexisting condition that makes him unable 
 
            to be around certain irritants.  His exposure to such 
 
            irritants while employed by defendant employer has resulted 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            in an asthmatic reaction.  Claimant's work exposure did not 
 
            cause his asthma; it merely aggravated it.  Claimant had the 
 
            susceptibility to asthmatic reactions apparently since 
 
            childhood, and the medical evidence also seems in agreement 
 
            that his work did not give him asthma, but rather aggravated 
 
            his asthma.
 
            Where a condition preexists the work injury or exposure, 
 
            such as preexisting asthma, and the condition is temporarily 
 
            aggravated by exposure to irritants, this agency was held 
 
            that a claimant is entitled to recovery for the aggravation 
 
            only.  The fact that claimant cannot work around irritants 
 
            does not compel a conclusion of an occupational disease 
 
            caused by work.  A worker with a preexisting condition such 
 
            as asthma already has the disability prior to working for 
 
            the employer, and work for the employer merely aggravates 
 
            the condition that already existed.  Absent a showing that 
 
            the exposure has permanently worsened the underlying 
 
            condition, a claimant under such circumstances is entitled 
 
            only to temporary total disability for the times off work 
 
            caused by the exposure.  See Gettler v. Robert Ticknor, 
 
            (Appeal Decision, April 15, 1988); Reynolds v. Amana 
 
            Refrigeration, (Appeal Decision, November 1992); Schwab v. 
 
            Pioneer Hi-Bred International, Inc., (Arbitration Decision, 
 
            May 22, 1991); and Senne v. Cedar Valley Farm Service, 
 
            (Arbitration Decision, May 9, 1991).
 
            In this case, however, claimant did not experience a time 
 
            off work due to his asthmatic reaction, then a return to 
 
            work.  Rather, claimant was medically advised to find 
 
            another job.  Claimant then entered truck driving school and 
 
            was able to find a position in that field.  Claimant's 
 
            preexisting asthmatic condition was temporarily aggravated 
 
            by his exposure to irritants at work, and this aggravation 
 
            prompted claimant to change jobs, tut it did not result in 
 
            time lost from work.  Under these facts, claimant is not 
 
            entitled to temporary total disability benefits or permanent 
 
            disability benefits.  Claimant's preexisting asthma 
 
            condition has caused him disability, but that disability is 
 
            not the responsibility of his employer.  The employer is 
 
            responsible for the medical expenses caused by the work 
 
            exposure.]
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant's medical expenses 
 
            as set out in joint exhibit 3.
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            Defendants shall pay all other costs.
 
            
 
                 That defendants shall file a first report of injury for 
 
            the September 9, 1990 incident, as provided in Iowa Code 
 
            section 86.11.
 
            
 
            Signed and filed this ____ day of June, 1993.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                                 BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. David Linquist
 
            Attorney at Law
 
            Breakwater Bldg
 
            3708 75th St.
 
            Des Moines, IA 50322
 
            
 
            Mr. Philip H. Dorff, Jr.
 
            Attorney at Law
 
            Terrace Ctr,  Ste 111
 
            2700 Grand Ave
 
            Des Moines, IA 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1801, 2203, 3000
 
                                                Filed June 30, 1993
 
                                                Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
         
 
            BRADLEY LOFTSGARD,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                          File Nos. 976635/976636
 
            WALTER FARMS, INC.,   
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            GRINNELL MUTUAL,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1801, 2203
 
            Claimant awarded temporary total disability for aggravation 
 
            of preexisting asthma.
 
            
 
            3000
 
            Found claimant's rate to be based on fair market value of 
 
            free house ($200 per month), free utilities ($70 per month), 
 
            free beef and pork ($500 per year) and commissions on hogs 
 
            sold by defendant employer who controlled which hogs to sell 
 
            and when, hauling, and determined amount of check hog buyer 
 
            was to write to claimant, usually four percent of sale.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRADLEY LOFTSGARD,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 976635
 
                                          :                976636
 
            WALTER FARMS, INC.,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GRINNELL MUTUAL,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on April 6, 1992, in 
 
            Waterloo, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of either an alleged injury or an 
 
            occupational disease occurring on July 2, 1990, or September 
 
            9, 1990.   The record in the proceedings consist of the 
 
            testimony of the claimant; claimant's wife, Gail Loftsgard; 
 
            Duane Walter; and Donald Blummer; and, joint exhibits 1 
 
            through 5.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's condition and alleged permanent 
 
            disability is causally connected to the July 2, 1990, or 
 
            September 9, 1990 injury or occupational disease;
 
            
 
                 2.  The extent of claimant's permanent partial 
 
            disability and entitlement to disability benefits;
 
            
 
                 3.  The rate at which any benefits would be paid;
 
            
 
                 4.  Claimant's entitlement to 85.27 medical benefits, 
 
            the issue being causal connection;
 
            
 
                 5.  If liability is found, whether claimant recovers 
 
            under 85A, occupational disease, or Chapter 85; and,
 
            
 
                 6.  Whether defendants are obligated to pay claimant's 
 
            medical bills, including those bills in 1988 and 1989, if 
 
            causal connection and liability are found.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 35-year-old high school graduate who also 
 
            graduated from truck driving school in 1990.  Claimant grew 
 
            up on a farm and helped his parents in every aspect in the 
 
            livestock and grain farm operation.
 
            
 
                 Claimant played in various sports in high school and 
 
            took the normal high school courses.  After graduation, 
 
            claimant worked in a cheese factory, then an implement 
 
            company, and then selling feed.  He described the nature of 
 
            his work at these places of employment.  He also continued 
 
            to help his parents with their farm work.
 
            
 
                 Claimant then did farming for his mother after his 
 
            father died, and another person for approximately one year 
 
            each until he began working for the defendant employer in 
 
            January of 1980 or 1981 at $750 per month plus other 
 
            benefits such as health insurance, a house to live in, free 
 
            utilities and beef and pork.  Claimant described the nature 
 
            of the livestock and grain operation of defendant employer, 
 
            the nature of claimant's work for defendant employer, and 
 
            the full span of duties he did.
 
            
 
                 Claimant said he basically had no physical or health 
 
            problems while growing up and he played sports without any 
 
            problems.  Claimant did relate an incident while in the 
 
            eighth or ninth grade in which he had a coughing spell and 
 
            his family doctor suggested claimant could have asthma but 
 
            there was no asthmatic diagnosis.
 
            
 
                 Claimant said he first noticed breathing problems in 
 
            the fall of 1988, the problems being coughing and tightening 
 
            of the lungs.  Claimant said he was having a hard time 
 
            sleeping.  Duane Walter, president of Walter Farms, had 
 
            received earlier a letter soliciting participation in a hog 
 
            and swine confinement and respiratory health project by the 
 
            University of Iowa.  Claimant and Mr. Walter discussed 
 
            claimant going to Iowa City for this project and it was 
 
            agreed that claimant should go for testing.
 
            
 
                 Claimant related the tests he had and the number of 
 
            visits and who prescribed the drugs and inhalants.
 
            
 
                 Claimant indicated he was having coughing problems, 
 
            shortness of breath, became weak at times and felt like 
 
            vomiting around dust, cattle, hogs, grain, etc.  Claimant 
 
            said Mr. Walter would let him get out of the buildings or 
 
            silo when he had these spells.
 
            
 
                 Claimant was referred to several medical reports (which 
 
            will be discussed later) but claimant did emphasize that 
 
            joint exhibit 2, page 99, a September 13, 1988 letter, was 
 
            the first time he actually knew he had a diagnosis of 
 
            asthma.
 
            
 
                 Claimant moved from one farmhouse he lived in on 
 
            defendant employer's farm to another farmhouse in which Mr. 
 
            Walter had previously lived before he moved off the farm 
 
            into town in 1988.  This house placed claimant closer to the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            hog confinement buildings which enabled claimant to more 
 
            closely watch the hog operation and pig farrowing.  Claimant 
 
            indicated that when he moved to this second house, he could 
 
            smell the hog urine more.
 
            
 
                 Claimant said he tried to move from the farm and was 
 
            going to buy a house but defendant employer wanted claimant 
 
            to stay at the farm and live on the premises so he would be 
 
            there in the evenings in case the electricity went out or 
 
            some other problem developed.  The evidence showed the house 
 
            utilities were on the same system as the other building.  
 
            The evidence shows that at any one time defendant employer 
 
            had 900 hogs and 250 to 500 head of cattle.
 
            
 
                 In 1989, claimant received a raise in his monthly 
 
            salary from $750 per month to $1000 per month.  The evidence 
 
            shows claimant began receiving a percent of the proceeds 
 
            from the sale of hogs of defendant employer beginning 
 
            sometime in 1989.  The defendant employer was on a fiscal 
 
            year tax basis (July 1 to June 30 of each year).  Claimant's 
 
            tax return (Joint Exhibit 1, page 143) shows claimant made 
 
            $16,034 gross income from this operation and $6,113 in 1990 
 
            (Jt. Ex. 1, p. 150).  Claimant worked for defendant employer 
 
            only part-time from July 1, 1990 to September 9, 1990, when 
 
            he quit.  Claimant said a load of hogs was sold every week 
 
            and that he would receive commissions once or twice every 
 
            two or three weeks.  Claimant testified these checks came 
 
            directly from the hog buyer and not from defendant employer.  
 
            Claimant also received beef and pork to eat during his 
 
            employment with defendant employer.  The meat and claimant's 
 
            housing and utilities were not reflected monetarily in 
 
            claimant's income, on any W2 or any 1099.  Claimant did not 
 
            report the value of the house rental, meat or free utilities 
 
            on his income tax return.  Joint exhibit 5 reflects an 
 
            appraisal value by Northeast Realty showing the rental value 
 
            of the farmhouse provided by defendant employer to the 
 
            claimant.  Claimant obtained this appraisal.  The appraisal 
 
            opined that the fair market rental value of the house in 
 
            which claimant was living at $250 per month.  Mr. Walter, 
 
            the president of Walter Farms, Inc., defendant employer, 
 
            disagreed with this figure and through his inquiry felt that 
 
            $150 to $200 was the fair market value.  Mr. Walter seems to 
 
            indicate there is not anyone in the area he could get to 
 
            give an appraisal.
 
            
 
                 Claimant never paid any utilities, which he estimated 
 
            averaged $70 or $80 per month based upon what he is paying 
 
            where he is now living.  Claimant valued the one-half to one 
 
            whole steer and one to three hogs he received per year at 
 
            $500 to $700.
 
            
 
                 Claimant understood from the doctor in the spring of 
 
            1990, that he was to look for different employment or 
 
            occupation due to his condition.  Claimant began looking for 
 
            another job.  He filled out applications but found it hard 
 
            to find a job.  Claimant then decided to go to Area 1 truck 
 
            driving school beginning July 2, 1990.  He graduated on 
 
            August 20, 1990.  Claimant began a new job with Olson 
 
            Explosives in September of 1990 driving a straight truck 
 
            daily round trip from Decorah to Minneapolis at $350 per 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            week ($18,200 per year).
 
            
 
                 Claimant testified that if a better paying job came 
 
            along and is not too physical, he would take it; otherwise, 
 
            he intends to continue driving a truck for Olson Explosives.
 
            
 
                 Claimant currently takes medicine mainly in the form of 
 
            inhalers which he uses daily when he needs help in his 
 
            breathing.
 
            
 
                 On cross-examination, claimant was questioned 
 
            concerning his visit with Steven Zorn, M.D., and the 
 
            doctor's records indicating claimant thought he had asthmas 
 
            as a child.  Claimant said he did have some wheezing 
 
            difficulty when exposed to oat and wheat dust when growing 
 
            up on the farm.  Claimant testified he has seen no doctor 
 
            since December 1990, a Dr. McMullan visit, except he saw a 
 
            new local doctor last Saturday (April 4, 1992).  Claimant 
 
            indicated he has no plans to farm again even though he would 
 
            like to.
 
            
 
                 Gail Loftsgard, claimant's wife, testified she and 
 
            claimant married in July 1977 and claimant had no physical 
 
            breathing problems nor was he going to the doctor at that 
 
            time.  She said they moved to the Walter farm in January 
 
            1980 or 1981.  She indicated the first time she became aware 
 
            of claimant having problems was in the summer of 1988 at 
 
            which time she thought claimant had a cold.  He was sneezing 
 
            and coughing.  Mrs. Loftsgard's testimony is cumulative as 
 
            to parts of claimant's testimony and there is no reason to 
 
            set out her testimony in any more detail.
 
            
 
                 Duane Walter, president of defendant employer, is a 
 
            shareholder of defendant employer along with his wife who is 
 
            also an officer of the company.  He testified he has at any 
 
            one time 250 to 500 cattle and 900 hogs on his 330 acre 
 
            livestock and grain farm.  He employs two people which was 
 
            the same number when claimant worked for him from 1980 to 
 
            September 9, 1990.  He said it is a full-time job for the 
 
            employees.  He acknowledged claimant began at $750 per month 
 
            plus the house, free utilities, and some free beef and pork.  
 
            He raised claimant's monthly salary to $1000 per month in 
 
            1989 and said he began giving claimant commissions on the 
 
            sale of hogs around the middle of 1988.  The undersigned is 
 
            not sure whether this date is correct or if he misunderstood 
 
            as claimant's tax returns show no commissions until 1989 in 
 
            which year claimant's records (Jt. Ex. 1, p. 143) show 
 
            $16,034.  Mr. Walter seemed surprised at the $16,034 figure 
 
            for 1989 and thought it was high.  He commented that maybe 
 
            claimant put 1988 income into 1989.  The undersigned finds 
 
            no evidence of this.  In fact, defendant employer was sent 
 
            request for production of records which would indicate any 
 
            commissions, hog sale information, etc. (Jt. Ex. 1, p. 120, 
 
            121).  Mr. Walter had in his possession records showing hog 
 
            sales and commissions to the claimant only for defendant 
 
            employer's fiscal year, July 1, 1989 to June 30, 1990.  He 
 
            indicated he just gave those to his attorney the morning of 
 
            the hearing and didn't bring any others.  He said he didn't 
 
            know until today (April 6, 1992) that the sale tickets had 
 
            claimant's commission amounts on the ticket.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Mr. Walter said claimant began working part-time for 
 
            defendant employer in July 1990 when claimant started going 
 
            to truck driving school.  At this time, claimant no longer 
 
            received commissions on the sale of hogs.  Claimant worked 
 
            part-time around the first of July to September 9, 1990, at 
 
            which time he left the defendant employer.
 
            
 
                 Mr. Walter acknowledged that his reasons for giving 
 
            claimant commission is for claimant to have a more real and 
 
            personal interest in raising the hogs and not because 
 
            claimant had any outside expertise.  Claimant had no contact 
 
            with the buyers and Mr. Walter made the sole decision when 
 
            and what hogs were to be sold each week and he took them to 
 
            the market himself and told the buyer what the commission 
 
            check to the claimant should be.  The hog sale ticket showed 
 
            the gross sale and claimant's commission and the net to 
 
            defendant employer.  Mr. Walter said a weekly hog load would 
 
            involve 45 to 48 hogs at $100 per hog.  He said at one time 
 
            they were $150 per hog.  Claimant was to get 4 percent 
 
            commission.
 
            
 
                 Mr. Walter, who has no other house rental income, 
 
            thought $250 was high for the rental value appraisal.  He 
 
            thought $150 to $200 was more reasonable pursuant to his 
 
            inquiry.  In his answer to interrogatory No. 7, he was 
 
            supposed to provide the fair market value.  There has been 
 
            nothing placed in evidence in writing by the defendant (Jt. 
 
            Ex. 1, p. 348).  Mr. Walter thought $70 per month as utility 
 
            value was high but offered no other figure.  He never kept 
 
            track of the cattle and pigs he gave claimant to eat but 
 
            thought claimant's estimate was fair.  He later estimated 
 
            the value at $300 to $400 for beef and $100 to $125 for a 
 
            hog.
 
            
 
                 Although claimant's Schedule C on his income tax return 
 
            showed claimant as broker, Mr. Walter acknowledged that 
 
            claimant had no separate business.
 
            
 
                 Mr. Walter indicated he was related to claimant's 
 
            father (third cousin) and said he treated claimant as a son, 
 
            but now feels betrayed by the claimant's workers' 
 
            compensation action.  He said claimant was a good, hard and 
 
            trustworthy employee.
 
            
 
                 Donald Blummer testified he has worked for defendant 
 
            employer since June 1988 and moved into the house on 
 
            defendant employer's farm that claimant originally lived in.  
 
            Mr. Blummer worked with claimant when they were both on the 
 
            farm.  Blummer said he had just started working for 
 
            defendant employer and with claimant when claimant started 
 
            going to the University of Iowa in connection with the 
 
            research testing project.  Blummer said claimant was a good, 
 
            hard, honest and trustworthy worker and able to do the work.  
 
            Blummer said the farm work was an all day job and sometimes 
 
            started early in the morning and ended late at night in 
 
            order to get all the work done, depending on the time of the 
 
            year, etc.  He said claimant used inhalers and if he got 
 
            worse he would take other medicine.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Steven K. Zorn, M.D., a specialist in internal and 
 
            pulmonary medicine, testified through his deposition on 
 
            February 28, 1992 (Jt. Ex. 4).  Dr. Zorn examined claimant 
 
            on July 19, 1991.  He had reviewed claimant's medical 
 
            records and those records of the claimant's treating family 
 
            doctor, Thomas M. McMullan, M.D., prior to his examination.  
 
            Dr. Zorn also said he has subsequently reviewed Dr. 
 
            McMullan's report of December 4, 1991.
 
            
 
                 He related the medical history he took from claimant.  
 
            The doctor said this included a diagnosis of asthma at age 
 
            10 and then claimant went into remission as claimant grew up 
 
            and was in high school (Jt. Ex. 4, p. 9).  The doctor 
 
            indicated that claimant's present condition was an 
 
            exacerbation of the asthma claimant had since childhood.  
 
            The doctor indicated claimant related a change of homes on 
 
            the Walter farm in the fall of 1988 which placed claimant 
 
            closer to the hog confinement buildings and exposed claimant 
 
            to much longer periods of exposure to hogs, urine and odor 
 
            smell.  The doctor indicated the 24 hour exposure aggravated 
 
            claimant where the eight hour day did not (Jt. Ex. 4, p. 
 
            12).
 
            
 
                 The doctor related the specifics of his physical 
 
            examination of claimant.  Everything appeared normal.  The 
 
            doctor testified there was a test given claimant which 
 
            included a pulmonary function study to see if there was 
 
            evidence of restrictive or obstructive lung disease.  
 
            Complete pulmonary functions study done on July 19, 1991 was 
 
            normal (Jt. Ex. 4, pp. 14 and 15).
 
            
 
                 The doctor then performed a methacholine challenge.  
 
            This substance in a person without asthma does not cause any 
 
            decrease in flow rate.  Claimant did have a significant dip 
 
            in flow rates when given this and asthma was confirmed (Jt. 
 
            Ex. 4, p. 16).  The doctor, therefore, said all the tests 
 
            were normal except the methocholine challenge test which was 
 
            positive for an asthmatic condition (Jt. Ex. 2, pp. 39, 44).
 
            
 
                 The doctor agreed the condition on the Walter Farms 
 
            likely exacerbated claimant's asthma but he did not think 
 
            the condition caused claimant's asthma.  He believed 
 
            claimant has had the asthma since childhood.  He also did 
 
            not think the farm conditions caused any permanency nor is 
 
            claimant currently suffering from any residual damage or 
 
            symptoms or physical permanent impairment as a result of his 
 
            acute episode in the summer of 1990 (Jt. Ex. 4, pp. 19, 20, 
 
            21).
 
            
 
                 The doctor disagreed with Dr. McMullan's 10 percent 
 
            permanent impairment if you use the AMA Guides which 
 
            indicate no impairment.  There is no evidence that Dr. 
 
            McMullan used the AMA Guides.  Dr. Zorn believes that 
 
            claimant will have no restrictions as to his current work as 
 
            regards claimant's 1990 exposure (Jt. Ex. 4, p. 22).  Dr. 
 
            Zorn did opine claimant's current symptoms and complaints 
 
            were due to his asthma.  He said claimant, being asthmatic, 
 
            may need treatment in the future (Jt. Ex. 4, p. 23).
 
            
 
                 Dr. Zorn said asthma is a reversible airway 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            obstruction.  People can have it as a child and nothing 
 
            shows up for twenty years and then it can then appear again 
 
            (Jt. Ex. 4, p. 24).  On cross-examination, the doctor seemed 
 
            to indicate that claimant had a genetic predisposition to 
 
            asthma and when claimant moved from one house to another 
 
            house on defendant employer's farm in which claimant was 
 
            exposed twenty-four hours a day due to the hog fumes rather 
 
            than an eight hour day, that brought claimant to a level of 
 
            having symptoms (Jt. Ex. 4, pp. 28 and 29).
 
            
 
                 Dr. Zorn acknowledged that the University of Iowa 
 
            doctors that claimant went to, James A. Merchant, M.D., and 
 
            David A. Schwartz, M.D., are experts in their area and that 
 
            they work in the area of reaction to farming such as hog 
 
            confinement (Jt. Ex. 4, p. 29).
 
            
 
                 The doctor would not advise claimant to return to the 
 
            farm doing the same thing he originally did that caused 
 
            claimant his problems.  In other words, duties such as 
 
            working in the hog confinement areas, around oat dust or 
 
            silage fumes (Jt. Ex. 4, pp. 32 and 33).
 
            
 
                 The doctor did agree that before the 1990 incident, 
 
            claimant was not on breathalyzers, inhalers or on 
 
            medication.
 
            
 
                 A September 25, 1986 letter from the University of Iowa 
 
            is a letter thanking claimant for participating in a swine 
 
            confinement and respiratory health project and reflected no 
 
            significant decrease in lung function.  Certain tests did 
 
            not indicate claimant experienced any abnormal reaction to 
 
            his work environment but skin tests showed claimant 
 
            vulnerable to molds, short rag weed and tree pollen (Jt. Ex. 
 
            2, p. 17).
 
            
 
                 Dr. Zorn's history taken from claimant on July 19, 
 
            1991, has a note indicating that claimant was told when he 
 
            was in tenth grade he had an "exacerbation of asthma."  It 
 
            appears to the undersigned that this is where Dr. Zorn 
 
            "understood claimant had asthma" and therefore 18 to 20 
 
            years later, this "same asthma" showed up again.  There is 
 
            no diagnosis of asthma prior to 1990 and it appears to the 
 
            undersigned that that was a passing comment and no medical 
 
            determination that claimant had asthma.  It is not unusual 
 
            for a comment to be made when one has congestion, allergies, 
 
            etc., that one might suggest an asthmatic condition.  This 
 
            situation appears similar to a situation in which a person 
 
            may come in with a stomach or lower abdomen complaint and a 
 
            comment might be made that the condition is suggestive of 
 
            appendicitis or a hernia but was just a stomach ache.  
 
            Eighteen years later one had his appendix removed or a 
 
            hernia operation.  This doesn't mean claimant had 
 
            appendicitis or a ruptured hernia eighteen years earlier 
 
            just because a comment in the record suggested it might be 
 
            an appendicitis or hernia situation even though no diagnosis 
 
            or follow-up was made.  The undersigned believes Dr. Zorn 
 
            took off on a layman's medical comment of claimant and this 
 
            then tainted his follow-up that claimant has the asthmatic 
 
            condition he had 18 to 20 years earlier when actually there 
 
            was no asthmatic diagnosis earlier.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Joint exhibit 2, page 1, reflects a December 4, 1991 
 
            letter of Dr. McMullan who opined that claimant's lung 
 
            condition was definitely aggravated by his employment at 
 
            Walter Farms and claimant had a 10 percent permanent 
 
            impairment related to his employment at Walter Farms.  
 
            Claimant was advised not return to his former employment.
 
            
 
                 A letter by David A. Schwartz, M.D., of the University 
 
            of Iowa College of Medicine, on December 17, 1990, reflects 
 
            that Dr. Schwartz medically cared for claimant for 
 
            approximately one and one-half years in the occupational 
 
            medicine program at the university.  He opined claimant had 
 
            occupational asthma caused by exposure to fumes generated 
 
            from the hog confinement building.  He told claimant that 
 
            claimant needs to seek employment elsewhere (Jt. Ex. 2, p. 
 
            46).
 
            
 
                 There is a series of letters or reports written by the 
 
            University of Iowa beginning September 13, 1988 to December 
 
            1990, referring to claimant's diagnosis of asthma (Jt. Ex. 
 
            2, pp. 46-99).
 
            
 
                 In an October 19, 1888 letter, Dr. Schwartz and Dr. 
 
            Merchants referred to claimant's childhood history of 
 
            asthma, but again the undersigned cannot tell where the 
 
            doctors received this information other than from the 
 
            claimant's comment, which has been previously referred to.  
 
            It is of importance that Dr. Schwartz diagnosed claimant's 
 
            condition as occupational asthma and causally connected it 
 
            to his workplace as set out above (Jt. Ex. 2, p. 46).
 
            
 
                 An October 30, 1986 letter from the University of Iowa 
 
            College of Medicine, occupational health department, signed 
 
            by Dr. Merchants, does not show any asthma diagnosis (Jt. 
 
            Ex. 2, p. 109).
 
            
 
                 There has been two alleged injuries.  It is obvious 
 
            from the evidence and in visiting with the attorneys that, 
 
            in fact, if liability and causation is found, there would 
 
            only be one injury or one occupational disease and not two.  
 
            It would appear because of the nature of the issues that for 
 
            protection, two petitions for two separate dates were filed.  
 
            It would also appear and is agreed to by the parties that if 
 
            a permanent injury or occupational disease is found, it 
 
            would be in reference to the September 9, 1990 date (File 
 
            No. 976636).  The undersigned, therefore, will be proceeding 
 
            on the basis of an alleged September 9, 1990 injury or 
 
            occupational disease.
 
            
 
                 Prior to claimant leaving the employment of defendant 
 
            employer on or around September 9, 1990, claimant did not 
 
            lose any time and therefore there is no claim for time loss, 
 
            healing period or temporary total disability.  The record is 
 
            somewhat confusing in that the parties stipulated that as to 
 
            both the July 2, 1990 and September 9, 1990 incidents, an 
 
            injury arose out of and in the course of claimant's 
 
            employment.  The prehearing form is not conducive to an 
 
            occupational disease as an occupational disease is not an 
 
            injury.  In looking at the entire record and the parties' 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            description of disputes, it is obvious that the defendants 
 
            did not agree there was a temporary occupational disease.  
 
            It is obvious the defendants contend that any disease 
 
            (asthmatic condition) was preexisting and not work related 
 
            and that any injury was not work related but if, in fact, it 
 
            was, it only resulted in a temporary aggravation or injury 
 
            and not permanent.  The undersigned will proceed on that 
 
            basis and understanding.
 
            
 
                 The first main issue is whether there is causal 
 
            connection.  The undersigned finds that there is no injury.  
 
            There is no evidence of any trauma or injury as defined 
 
            under the law.  Of course, if there was a traumatic injury, 
 
            there could not have been an occupational disease finding.
 
            
 
                 There is an obvious disagreement among the medical 
 
            evidence.  Defendants' specialist finds that there is no 
 
            permanency and that claimant's asthmatic condition is a 
 
            preexisting condition and not caused by his work.  It is 
 
            obvious that Dr. Zorn would indicate that claimant's 
 
            asthmatic condition was exacerbated by the working 
 
            conditions at defendant employer's farm.  Dr. Zorn seemed to 
 
            indicate that claimant had asthma when he was ten years old 
 
            and that it was in remission.  As indicated earlier, the 
 
            undersigned believes that Dr. Zorn thought there was a 
 
            diagnosis of asthma.  There is nothing in the record to show 
 
            that claimant was ever determined to have had asthma prior 
 
            to 1988.  This consequently set Dr. Zorn off on a separate 
 
            course.  Notwithstanding this, and assuming for argument 
 
            purposes, that claimant did have asthma at age 10, the 
 
            record shows that there was no reoccurrence until 
 
            approximately 1988, almost eighteen years later.  Therefore, 
 
            it would appear that even from Dr. Zorn's testimony, there 
 
            was a material and substantial aggravation of a preexisting 
 
            condition and that this condition was caused by the 
 
            conditions at the defendant employer's farm.
 
            
 
                 The undersigned believes the greater weight of medical 
 
            testimony is that testimony or records of the University of 
 
            Iowa, whose doctor(s) cared for the claimant for one-half 
 
            years and where claimant was a participant in a swine 
 
            confinement and respiratory health project, are more 
 
            acceptable and credible.  Dr. Schwartz opined that claimant 
 
            had occupational asthma as a result of exposure to fumes 
 
            generated from the hog confinement buildings and that 
 
            claimant needed to seek other employment obviously to 
 
            separate himself from the environmental conditions that 
 
            existed at defendant employer's farm.  Dr. McMullan also 
 
            causally connected claimant's condition to his employment 
 
            with defendant employer.  Therefore, the undersigned finds 
 
            that claimant incurred an occupational disease (asthma) as a 
 
            result of and arising out of and in the course of his 
 
            employment at defendant employer's farm on September 9, 
 
            1990.  As indicted earlier, in any event, claimant would 
 
            recover even if the undersigned had taken the position that 
 
            there was a preexisting disease.  If the undersigned had 
 
            taken that position, he would have found that claimant's 
 
            condition was substantially and materially aggravated, 
 
            lighted up and worsened as a result of claimant's employment 
 
            with defendant employer.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 It is obvious that claimant's last injurious exposure 
 
            to the hazardous disease was while employed at defendant 
 
            employer's farm.  The evidence is undisputed that claimant 
 
            should remove himself from the hog, livestock and farming 
 
            operations because of the effect that those conditions have 
 
            on his asthmatic conditions.  Claimant has followed the 
 
            doctor's advice and removed himself from that type of 
 
            employment and is now driving a truck.  The undersigned 
 
            finds that claimant has actually become incapacitated from 
 
            performing the work that he was doing at the time of his 
 
            occupational disease in which he had to on September 9, 1990 
 
            sever his relationship with defendant employer because of 
 
            his medical condition.  Because of the occupational disease, 
 
            claimant also has been prevented from earning equal wages in 
 
            other suitable employment.  The undersigned therefore finds 
 
            that claimant has reached the necessary threshold under 
 
            85A.4 disablement.
 
            
 
                 There is a dispute as to rate.  Defendants contend that 
 
            the claimant's income was $1,000 per month or $12,000 per 
 
            year and based on claimant's exemptions would amount to a 
 
            rate of $204.95 per week.  Claimant contends that the $1,000 
 
            per month was only part of the actual salary he received and 
 
            that should also be increased by the value of other certain 
 
            fringe benefits that claimant received, namely, commissions 
 
            on sale of hogs, the rental value of claimant's free home, 
 
            the free utilities, and the cost of the beef and pork that 
 
            claimant received each year.  Claimant contends the rate 
 
            should at least be $389.62 per week based on $626.50 gross 
 
            weekly wage.  The evidence in the record in which to try to 
 
            arrive at a rate is confusing and not as complete as it 
 
            should be.  It is obvious from claimant's counsel that he 
 
            had a hard time trying to determine the rate.  The action or 
 
            failure to act on the part of defendant has contributed in 
 
            part to this dilemma, namely, that the defendants did not 
 
            completely respond to the request for production of 
 
            documents as to this area.
 
            
 
                  Mr. Walter testified on the date of the hearing that 
 
            he just brought some statements to the court and showed his 
 
            attorney just before the hearing started even though a 
 
            request had been made some time ago.  Mr. Walter also 
 
            indicated that he didn't even know the statements had the 
 
            commission to which the claimant was entitled on them until 
 
            he was noticing them on the date of the hearing.
 
            
 
                 The claimant should not be penalized by the failure of 
 
            defendants to provide information that could clarify, at 
 
            least in part, some of the deficiencies in trying to 
 
            determine the true rate to which claimant would be entitled 
 
            based on the undersigned's determination.  The undersigned 
 
            finds that claimant's $1,000 a month was not his sole 
 
            compensation for working for defendant employer.  Based on 
 
            the testimony and evidence, the amount of pay, if it were 
 
            $1,000 per month, would be considerably low and unfair based 
 
            on the duties, obligations, and hours worked by this 
 
            claimant for defendant employer.  It is obvious to the 
 
            undersigned that other benefits were given to the claimant 
 
            to make his compensation fair.  Likewise, Mr. Walter 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            indicated that the commission system was set up considering 
 
            the sale of hogs, to give claimant a more personal interest 
 
            in raising the hogs all of which was for the benefit of both 
 
            parties but more beneficial to defendant employer 
 
            considering the number of hogs the company had.
 
            
 
                 Even though claimant's tax returns refer to him as a 
 
            broker and this income is set out on Schedule C, the 
 
            undersigned finds this is for the convenience of the 
 
            defendant employer.  Mr. Walter indicated he strictly 
 
            controlled the situation, not only when and how many hogs 
 
            were sold but he also delivered the hogs to the market and 
 
            actually told the buyer the percent of commission that 
 
            claimant was to make and that the check would be made out to 
 
            the claimant, all under the instructions of Mr. Walter.
 
            
 
                 The undersigned finds that the value of the home, free 
 
            utilities, and the value of the beef and pork should be 
 
            considered in attempting to figure claimant's gross income.  
 
            The undersigned finds that the fair market rental of the 
 
            house is $200 per month, the utilities $70 per month, and 
 
            the beef and pork given to claimant as $500 per year.  The 
 
            undersigned must determine the value of the commissions for 
 
            purposes of determining claimant's gross income.  As 
 
            referred to earlier, this is not an easy task based on the 
 
            record.  The undersigned believes that the value of the 
 
            commissions on the fiscal year beginning September 1, 1989 
 
            to August 31, 1990, amounted to $11,457.68.  The undersigned 
 
            arrived at that figure by taking eight months in 1990 and 
 
            the four months of 1989 to make up a fiscal year of 
 
            September 1, 1989 to August 31, 1991.  Joint exhibit 1, page 
 
            143, reflects that claimant had a gross income of $16,034 
 
            for the year 1989.  Dividing that by 12, one arrives at a 
 
            monthly commission average of $1,336.16 per month.  Taking 
 
            that times four months in 1989 amounts to $5,344.64.  Taking 
 
            the figure on joint exhibit 1, page 150, claimant had income 
 
            from the commission on hogs of $6,113.  This amount was 
 
            actually earned in the first six months of 1990.  The 
 
            testimony indicates that claimant began driving school 
 
            around July 2, 1990 and finished in August 1990 and quit 
 
            employment with defendant employer around September 8, 1990.  
 
            Mr. Walter indicated that claimant was taken off the 
 
            commission basis when he began truck driving school and 
 
            became a part-time worker but he did continue to draw the 
 
            $1,000 per month wage.  Taking the $6,113 as the commission 
 
            for the eight months that claimant was employed with 
 
            defendant employer in 1990 and add that to the $5,344.64 
 
            which is a four month commission for 1989, as figured above,  
 
            plus claimant's $12,000 salary ($1,000 per month), $840 for 
 
            the $70 per month for 12 months utilities, $2,400 for the 
 
            $200 per month free house based on its fair market rental 
 
            value found by the undersigned and $500 for the value of the 
 
            beef and pork given to claimant, this amounts to $27,197.68, 
 
            or $523.03 gross per week for the fiscal year of September 
 
            1, 1989 to August 31, 1990.  The undersigned finds that the 
 
            weekly rate based on four exemptions is $331.27.  Although 
 
            claimant's attorney thought the basic computation should be 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            under 85.36(10), the undersigned finds the closest category 
 
            would be 85.36(4).
 
            
 
                 As to the 85.27 dispute, the issues within that were 
 
            causal connection and if found, whether defendants are 
 
            responsible for claimant's medical going back to 1988 to the 
 
            present or only from September 9, 1990.  Having found causal 
 
            connection, the undersigned finds that defendants are 
 
            responsible for claimant's medical.  The undersigned further 
 
            finds that this being found to be an occupational disease, 
 
            the medical bills incurred because of this disease should be 
 
            paid by defendants.  Therefore, the bills beginning with the 
 
            medical services rendered in 1988 to the present are owed by 
 
            and shall be paid by defendants.  No specific figure shall 
 
            be set out herein or in the order as the parties agree that 
 
            if causal connection is found and the particular years 
 
            involved are found by the undersigned, they then can work 
 
            out the amount of medical bills that would be owed and any 
 
            credit without the undersigned determining any exact figure.
 
            
 
                 The last issue is the determination of the extent of 
 
            claimant's permanent disability.  There is only one 
 
            impairment rating and that is by Dr. McMullan of 10 percent.  
 
            The University of Iowa Hospital gave no impairment rating 
 
            and it appears from the records that no rating was requested 
 
            of them.  It would appear from the record that considering 
 
            the manner in which the University of Iowa became involved, 
 
            which originated from a research project, it seems 
 
            reasonable that they weren't asked for an impairment rating 
 
            even though that might have helped to some extent.  Dr. Zorn 
 
            indicated that the AMA Guides do not indicate any impairment 
 
            rating under the circumstances herein.  There is no evidence 
 
            that Dr. McMullan used the AMA Guides.  The AMA Guides are 
 
            only a guide and not the gospel as far as helping to 
 
            determine claimant's industrial disability and trying to 
 
            determine any impairment that may or may not have an 
 
            appreciable effect on the undersigned's determination of 
 
            industrial disability.
 
            
 
                 The greater weight of evidence shows that claimant has 
 
            a loss of income.  Claimant is now making $18,200 per year 
 
            and obviously putting in less time and involved in less 
 
            rigorous work.  As set out above, claimant was making the 
 
            equivalent of approximately $27,198 per year working for 
 
            defendant employer.  The record indicates that claimant no 
 
            longer will be able to work in the industry that he has 
 
            devoted a considerable part of his life in which he had the 
 
            expertise and the transferable skills.  Defendant employer 
 
            inferred he would not take the claimant back even if 
 
            claimant could come back.
 
            
 
                 Claimant searched for various jobs it and appears the 
 
            current job he has found suits his medical situation.  
 
            Taking into consideration all those items that the 
 
            undersigned must consider to determine claimant's industrial 
 
            disability, said items including but not necessarily limited 
 
            to claimant's age, work experience, medical history prior to 
 
            and after his September 9, 1990 occupational disease, his 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            education, nature of his occupational disease, and 
 
            motivation, the undersigned finds that claimant has incurred 
 
            a 30 percent industrial disability.  He is therefore 
 
            entitled to 150 weeks of permanent partial disability 
 
            benefits at the rate of $331.27 per week.
 
            
 
                 The undersigned finds that claimant takes nothing 
 
            concerning his allegation of an injury or occupational 
 
            disease occurring on July 2, 1990.
 
            
 
                           analysis and conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury or occupational 
 
            disease  on July 2, 1990, or September 9, 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury or 
 
            occupational disease of July 2, 1990 or September 9, 1990, 
 
            is causally related to the disability on which he now bases 
 
            his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Iowa workers' compensation law distinguishes 
 
            occupational diseases from work injuries.  An occupational 
 
            disease is a disease which arises out of and in the course 
 
            of the employee's employment.  The disease must have a 
 
            direct causal connection with the employment and must follow 
 
            as a natural incident from injurious exposure occasioned by 
 
            the nature of the employment.  While the disease need not be 
 
            foreseeable or expected, after its contraction, it must 
 
            appear to have had its origin in a risk connected with the 
 
            employment and to have resulted from that risk.  A disease 
 
            which follows from a hazard to which an employee has or 
 
            would have been equally exposed outside of the occupation is 
 
            not a compensable occupational disease.
 
            
 
                 The claimant need meet only two basic requirements to 
 
            prove causation of an occupational disease.  First, the 
 
            disease must be causally related to the exposure to the 
 
            harmful conditions in the field of employment.  Second, the 
 
            harmful conditions must be more prevalent in the employment 
 
            than in everyday life or other occupations.  Section 85A.8; 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Where an employee is injuriously exposed to hazardous 
 
            conditions producing occupational disease while employed by 
 
            several successive employers, the employer where the 
 
            employee was last injuriously exposed is liable for the 
 
            total disability.  Doerfer Div. of CCA v. Nicol, 359 N.W.2d 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            428 (Iowa 1984).
 
            
 
                 To be compensable, an aggravation of an occupational 
 
            disease must be more than a temporary aggravation curable by 
 
            removal from the exposure.  McNeil v. Grove Feed Mill, II 
 
            Iowa Industrial Commissioner Report 261 (App. 1981).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an occupational disease that arose 
 
            out of and in the course of his employment and was caused by 
 
            exposure to harmful conditions in the field of employment 
 
            and that these harmful conditions were more prevalent in the 
 
            employment than the everyday life or other occupations.
 
            
 
                 Claimant was injuriously exposed to hazardous 
 
            conditions producing occupational disease while employed at 
 
            defendant employer, Walter Farms, Inc., and that this was 
 
            the employer in which the claimant was last injuriously 
 
            exposed.
 
            
 
                 Because of claimant's occupational disease, claimant is 
 
            incapacitated from performing the work that he was 
 
            performing for defendant employer and is incapacitated from 
 
            performing the work of helping to operate a livestock or 
 
            grain farm or a hog confinement operation.
 
            
 
                 Claimant has been unable because of his occupational 
 
            disease to earn equal wages in other suitable employment 
 
            because of his occupational disease.
 
            
 
                 Claimant did not have a medical diagnosis of asthma 
 
            prior to September 1988.
 
            
 
                 Claimant's medical bills incurred in 1988 to the 
 
            current are casually related to claimant's occupational 
 
            disease of September 9, 1990, and that said bills are the 
 
            obligation of defendant employer.
 
            
 
                 Claimant is entitled to weekly benefits at the rate of 
 
            $331.27 per week based on a weekly gross income of $523.03 
 
            and entitled to four exemptions.
 
            
 
                 Claimant's weekly benefits shall commence on September 
 
            9, 1990.
 
            
 
                 Claimant has incurred an occupational disease under the 
 
            provisions of Chapter 85A, which is caused by claimant's 
 
            employment at Walter Farms, Inc.
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 Claimant has incurred a substantial loss of income as a 
 
            result of his occupational disease caused by defendant 
 
            employer.
 
            
 
                 Claimant has incurred industrial disability of 30 
 
            percent.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the weekly 
 
            rate of three hundred thirty-one and 21/100 dollars 
 
            ($331.21) beginning September 9, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have paid no 
 
            weekly benefits prior to the date of hearing.  Claimant 
 
            incurred no healing period as stipulated by the parties.
 
            
 
                 That defendants shall pay claimant's medical expenses 
 
            as set out in joint exhibit 3.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file a first report of injury for 
 
            the September 9, 1990 incident, as provided in Iowa Code 
 
            section 86.11.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David Linquist
 
            Attorney at Law
 
            Breakwater Bldg
 
            3708 75th St
 
            Des Moines IA 50322
 
            
 
            Mr Philip H Dorff Jr
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1100; 1108; 2203; 5-2500
 
                                          3000; 1803
 
                                          Filed April 20, 1992
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRADLEY LOFTSGARD,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 976635
 
                                          :                976636
 
            WALTER FARMS, INC.,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GRINNELL MUTUAL,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1100; 1108; 2203
 
            Found claimant incurred an occupational disease (asthma) on 
 
            September 9, 1990, which arose out of and in the course of 
 
            his employment with defendant employer.
 
            
 
            2203
 
            Found claimant was disabled under the provisions of 85A.4.
 
            
 
            5-2500
 
            Found defendants to pay claimant's medical bills for his 
 
            September 9, 1990 occupational disease including bills in 
 
            1988 and 1989 when symptoms surfaced.
 
            
 
            3000
 
            Found claimant's rate to be based on fair market value of 
 
            free house ($200 per month), free utilities ($70 per month), 
 
            free beef and pork ($500 per year) and commissions on hogs 
 
            sold by defendant employer who controlled which hogs to sell 
 
            and when, hauling, and determined amount of check hog buyer 
 
            was to write to claimant, usually 4% of sale.
 
            
 
            1803
 
            Found claimant incurred a 30% industrial disability.