BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHRIS SHELTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 976855
 
                                          :
 
            McDONALD'S HAMBURGERS,        :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Chris Shelton sustained a shoulder dislocation 
 
            on January 14, 1991, when a fellow employee attempted to 
 
            wrench a broom from his hands.  He has filed a petition in 
 
            arbitration seeking benefits under the Iowa Workers' 
 
            Compensation Act from his employer, McDonald's Hamburgers, 
 
            and its insurance carrier, Travelers Insurance Company.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            June 23, 1992.  Claimant's exhibits 1 through 8 and 
 
            defendants' exhibits 1 through 4 were received into 
 
            evidence.  Claimant, Kelly Jones and Roberta Lane gave 
 
            testimony.
 
            
 
                 Counsel for both parties came to hearing unprepared to 
 
            present evidence on several issues identified in the hearing 
 
            assignment order of February 5, 1992, especially entitlement 
 
            to permanent disability.  The parties sought to bifurcate 
 
            these on their own motion, citing a claimed misunderstanding 
 
            at the time of the prehearing conference.  The hearing was 
 
            interrupted to allow the parties to argue before the 
 
            prehearing deputy, Helenjean M. Walleser.  Deputy Walleser 
 
            thereupon verbally ruled that the issues of causation to 
 
            permanent disability, extent of permanent disability and 
 
            entitlement to penalty benefits with respect to permanent 
 
            disability should be bifurcated.  The hearing proceeded as 
 
            to other issues.
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                     ISSUES
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between claimant and employer at the 
 
            time of the alleged injury, that the injury caused temporary 
 
            disability from January 14 through February 14, 1991, that 
 
            medical expenses are fair and reasonable, incurred for 
 
            reasonable and necessary treatment and causally connected to 
 
            the injury, and that defendants do not seek credit for 
 
            benefits paid prior to hearing.
 
            
 
                 Issues now presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment on January 14, 1991;
 
            
 
                 2.  Whether defendants have a valid affirmative defense 
 
            of "horseplay";
 
            
 
                 3.  The rate of compensation; and,
 
            
 
                 4.  The extent of entitlement to medical benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Chris Shelton was 19 years of age on January 14, 1991.  
 
            McDonald's Hamburgers is a well-known chain of fast food 
 
            restaurants.  McDonald's employs large numbers of young 
 
            people, many of whom are doubtless prone to that exuberant 
 
            and boisterous behavior so characteristic of young adults.  
 
            Mr. Shelton has from time to time comported himself in like 
 
            manner:  snapping towels, "messing" with customers, throwing 
 
            snowballs, spraying water and engaging in "sauce fights."
 
            
 
                 Claimant began working for McDonald's Hamburgers in 
 
            March 1989 as a high school junior.  He started as a cook, 
 
            but was shifted to the night maintenance crew in 1990.  This 
 
            part-time job involved general cleaning of food preparation 
 
            machinery and the restaurant.  Mr. Shelton was so engaged on 
 
            the morning of January 14, 1991.
 
            
 
                 Kelly Jones is claimant's former high school classmate 
 
            and football teammate.  Although acquaintances, they are not 
 
            close friends.  Jones worked on the morning maintenance 
 
            crew, a shift that overlapped the night maintenance crew by 
 
            one hour.
 
            
 
                 Jones had arrived for work on January 14 and was 
 
            leaning on or near the doorway to the "bun" room, and was 
 
            talking to another employee when claimant went to pick up a 
 
            broom he had previously placed against the wall near the 
 
            door.  As claimant reached for the broom, Jones grabbed for 
 
            it first, clearly intending to engage in a bit of horseplay.  
 
            The two young men grabbed the broom almost simultaneously, 
 
            Jones slightly ahead.  They briefly twisted the broom in 
 
            opposite directions, one against the other, when Jones 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            reversed direction and "spun" the broom in the same 
 
            direction as claimant was twisting.  As a result, claimant's 
 
            arm was abruptly forced above shoulder level.
 
            
 
                 Unfortunately, Chris Shelton has a history of shoulder 
 
            separations and weakness of the left shoulder.  The shoulder 
 
            separated again, resulting in the temporary disability 
 
            stipulated by the parties.
 
            
 
                 Although Jones and claimant have independently engaged 
 
            in acts of horseplay while at work, neither had directed 
 
            pranks against the other and there was no ill will between 
 
            the two.  No retaliation was involved.  The two men had not 
 
            engaged in any acts of horseplay immediately before this 
 
            unfortunate incident.  While Jones clearly intended an act 
 
            of horseplay, claimant did not.  Rather, Mr. Shelton was 
 
            simply doing his job when Jones unexpectedly grabbed the 
 
            broom he was reaching for.  The entire incident took place 
 
            in but a few seconds.  While it is possible that claimant 
 
            might--barely--have had time to relinquish the broom before 
 
            his injury, this observer is convinced that the entire 
 
            incident happened so quickly that he did not have sufficient 
 
            time to intentionally participate in an act of horseplay.
 
            
 
                 The amount of time involved in this incident is, 
 
            however, a matter of some concern.  Kelly Jones estimated 
 
            that the two men wrestled for control of the broom for 
 
            approximately 10 seconds.  This deputy timed 10 seconds at 
 
            hearing, following which Jones reaffirmed his estimate.  
 
            Claimant thereupon estimated 5-7 seconds of elapsed time.
 
            
 
                 This is troubling because 10 seconds, even 5 seconds, 
 
            is an enormous amount of time for two young men to 
 
            physically struggle against one another.  If 5-10 seconds 
 
            actually elapsed, this writer would conclude that claimant 
 
            intentionally gave himself over to participation in Jones' 
 
            prank.  But, after conducting and deciding many thousands of 
 
            contested cases over nine years as an administrative law 
 
            judge and deputy industrial commissioner, the undersigned 
 
            has concluded that many, many people are stunningly inept at 
 
            estimating time and distance.  Based on the balance of the 
 
            testimony of Jones and claimant, along with the 
 
            demonstrations each gave in open court, the undersigned is 
 
            convinced that the entire episode was, for all practical 
 
            purposes, over in a flash.  Claimant did not become a 
 
            willing participant.
 
            
 
                 Claimant was earning an hourly wage of $4.30 on the day 
 
            of injury.  From company time records, it appears that he 
 
            worked 246.87 hours in the 13 weeks preceding January 14, 
 
            1991.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Defendants assert "horseplay" as an affirmative 
 
            defense.  If it were so, they would bear the burden of proof 
 
            on the issue.  Iowa Rule of Appellate Procedure 14(f)(5).  
 
            However, the Iowa court has treated "horseplay" as an 
 
            "arising out of and in the course of" issue.  In Ford v. 
 
            Barcus, 261 Iowa 616, 155 N.W.2d 507 (1968), the Iowa court 
 
            held:  "Horseplay which an employee voluntarily instigates 
 
            and aggressively participates in does not arise out of and 
 
            in the course of his employment and therefore is not 
 
            compensable."
 
            
 
                 In this case, claimant was the victim of horseplay 
 
            rather than a voluntary participant.  As such, the injury is 
 
            compensable.  Wittmer v. Dexter Mfg. Co., 204 Iowa 180, 214 
 
            N.W. 700 (1927); Swanson v. Lynch Roofing & Siding, 
 
            Thirty-third Biennial Report of the Industrial Commissioner 
 
            150 (App. Decn. 1977); Klinker v. Wilson Foods Corp., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            167 (App. Decn. 1979).  It is accordingly held that 
 
            claimant's injury arose out of and in the course of 
 
            employment.
 
            
 
                 Mr. Shelton also asserts entitlement to penalty 
 
            benefits under Iowa Code section 86.13.  The standard to 
 
            determine whether penalty benefits should be allowed is 
 
            whether the defense asserted is "fairly debatable."  Stanley 
 
            v. Wilson Foods Corp., File No. 753405 (App. Decn., August 
 
            23, 1990); Seydel v. U of I Physical Plant, File No. 818849 
 
            (App. Decn., November 1, 1989).
 
            
 
                 Iowa Lutheran Hospital emergency department records of 
 
            the date of injury note that claimant stated he was 
 
            "wrestling around at work" when he twisted his left arm.  
 
            When Jones was first questioned about the incident by the 
 
            store manager, Roberta Lane, he inaccurately claimed that 
 
            "we" were "screwing around."  Defendants' investigation was 
 
            fairly cursory.  Neither claimant nor Jones was disciplined.  
 
            The question is close, but it is held that the "horseplay" 
 
            defense rises to the fairly debatable standard necessary to 
 
            avoid assessment of a penalty.
 
            
 
                 Based on claimant's hourly wage and the hours reported 
 
            during the 13 weeks prior to his work injury, it appears 
 
            that he earned $1,061.54, or an average weekly wage of 
 
            $81.66.  As he was single and entitled to but a single 
 
            exemption, his weekly compensation rate is $72.50.
 
            
 
                 Claimant's medical expenses to date total $928.77 as 
 
            shown by his exhibit 5.  Defendants shall be ordered to pay 
 
            those expenses.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant four point five 
 
            seven one (4.571) weeks of healing period/temporary total 
 
            disability benefits at the rate of seventy-two and 50/100 
 
            dollars ($72.50) per week commencing January 14, 1991.
 
            
 
                 As these benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall pay the medical expenses totalling 
 
            nine hundred twenty-eight and 77/100 dollars ($928.77) set 
 
            forth in claimant's exhibit 5.
 
            
 
                 Costs to date are assessed to defendants pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Because the issues of causation and extent of 
 
            permanency and entitlement to penalty benefits with respect 
 
            to permanency have been bifurcated, the cause shall be 
 
            returned to the prehearing docket for further proceedings.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Max Schott
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311-1540
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            803 Fleming Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1105; 2901; 4000.2
 
                                                Filed July 13, 1992
 
                                                DAVID RASEY
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHRIS SHELTON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                File No. 976855
 
                         
 
            McDONALD'S HAMBURGERS,         A R B I T R A T I O N
 
                      
 
                 Employer,                    D E C I S I O N
 
                      
 
            and       
 
                      
 
            TRAVELERS INSURANCE CO., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            1105; 4000.2
 
            Off-duty employee grabbed a broom just as claimant reached 
 
            for it.  After a momentary struggle for possession, it was 
 
            twisted out of claimant's hand, dislocating a weak shoulder.
 
            HELD:  Claimant did not voluntarily participate in 
 
            horseplay, but claim was "fairly debatable," so no penalty 
 
            benefits were awarded.
 
            
 
            2901
 
            Claiming a "misunderstanding" at the prehearing conference, 
 
            parties attempted to bifurcate several issues on their own 
 
            motion.  The hearing was recessed to permit argument before 
 
            the prehearing deputy, who granted the relief sought.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARY FRANCES DAVIS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976932
 
            BURLINGTON MEDICAL CENTER,    :
 
                                          :        ARBITRATION
 
                 Employer,                :
 
                                          :         DECISION
 
            and                           :
 
                                          :
 
            FARM BUREAU MUTUAL            :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This contested case proceeding is upon the petition in 
 
            arbitration of Mary Frances Davis against her employer, 
 
            Burlington Medical Center, and its insurance carrier, Farm 
 
            Bureau Mutual Insurance Company.  Ms. Davis sustained injury 
 
            arising out of and in the course of her employment on 
 
            January 27, 1991, and now seeks benefits under the Iowa 
 
            Workers' Compensation Act.
 
            
 
                 A hearing was accordingly held in Burlington, Iowa on 
 
            August 25, 1993.  The record consists of the testimony of 
 
            claimant and Birgit Fries along with claimant's exhibits A 
 
            and B and defendants' exhibits 1-5.
 
            
 
                                      ISSUES
 
            
 
                 The parties have entered into the following 
 
            stipulations:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on January 
 
                    27, 1991;
 
            
 
                    2.  The injury caused both temporary and 
 
                    permanent disability;
 
            
 
                    3.  Entitlement to healing period benefits 
 
                    is no longer in dispute;
 
            
 
                    4.  Claimant's permanent disability should 
 
                    be compensated industrially commencing 
 
                    November 1, 1991;
 
            
 
                    5.  The proper rate of weekly compensation 
 
                    is $156.20;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
                    6.  Entitlement to medical benefits is no 
 
                    longer in dispute;
 
            
 
                    7.  In addition to healing period, 
 
                    defendants voluntarily paid 49 weeks of 
 
                    compensation at the stipulated rate towards 
 
                    claimant's entitlement to permanency 
 
                    benefits.
 
            
 
                 The sole issue presented for resolution is the extent 
 
            of claimant's industrial disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Mary Davis, 29 years of age at hearing, worked for 
 
            approximately 12 years as a certified nurses' aide prior to 
 
            the subject work injury.  Although Ms. Davis has not 
 
            graduated from high school, she did obtain a GED certificate 
 
            in 1982.  Ms. Davis also has some clerical training and is 
 
            currently enrolled in reading courses at Rock Valley 
 
            College.
 
            
 
                 Claimant was injured on January 27, 1991, when she and 
 
            an LPN were assisting a patient in the bathroom.  The 
 
            patient fell while being lifted from his wheelchair, and the 
 
            sudden extra weight caught claimant in a twisted position.  
 
            She felt that she had pulled muscles and "felt funny."  
 
            Sitting down, she was unable to get up.
 
            
 
                 Unfortunately, claimant's recovery has been slow, very 
 
            slow.  At hearing, this observer noted that claimant's gait 
 
            is extraordinarily slow and her movements appear tortured.  
 
            The medical records contain a number of very similar 
 
            observations.
 
            
 
                 Claimant has been treated by a number of physicians, 
 
            especially Michael W. Hendricks, M.D., and Jeffrey T. Behr, 
 
            M.D.  
 
            
 
                 Dr. Hendricks' records contain a lumbar MRI study on 
 
            May 9, 1991 and a myelogram/CAT scan on June 5, 1992.  The 
 
            earlier study showed minimal disc desiccation at L4-5 and 
 
            L5-S1 and a small central protrusion at L5-S1 which 
 
            "minimally" impinged on the subarachnoid space.  Absence of 
 
            herniation was specifically reported.  The CAT scan, by a 
 
            different radiologist, showed prominent annulus fibrosis at 
 
            each lumbar disc space, but no herniated nuclear pulposus.
 
            
 
                 In the months following her injury, claimant returned 
 
            to some intermittent light duty office work, but never 
 
            returned to her regular job.  Dr. Hendricks' chart notes of 
 
            October 23, 1991, indicated that claimant was to increase 
 
            her work day to eight hours.  By December 4, 1991, claimant 
 
            was reported as feeling "great."  She still had pain, but 
 
            reportedly could tolerate the discomfort.  Dr. Hendricks 
 
            acquiesced in claimant being assigned to a permanent work 
 
            station "with her current restrictions," although those 
 
            restrictions are not specified.  He approved of claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            trying to work at her current level in a viable line of 
 
            employment.
 
            
 
                 Eleven days later, claimant was involved in a domestic 
 
            violence incident.  Hospital notes of December 15 show an 
 
            emergency room admission recording that claimant's husband 
 
            had picked her up and slammed her body to the floor, 
 
            resulting in complaints of pain in the lower back, hips and 
 
            legs described as "sharp."  The left leg had been numb, but 
 
            sensation had returned.  Physician's notes record that 
 
            claimant's husband had jumped on her and that she had been 
 
            slammed on the floor several times.  Objectively, claimant 
 
            showed marked spasm of the paravertebral muscles.  Diagnosis 
 
            was of strain of the lumbar paravertebral muscles.  A 
 
            contemporaneous police report showed that claimant's husband 
 
            had grabbed her and thrown her to the floor "several times" 
 
            and also against his nephew and then a bathroom wall, 
 
            causing her to have "severe back pain."
 
            
 
                 Claimant's statement to the police included the 
 
            following passage:
 
            
 
                 Then I went back home.  I opened the door and it 
 
                 looked to me like he was standing there talking to 
 
                 Darrell, I don't know for sure.  I didn't even get 
 
                 the door closed and he grabbed me by my coat.  He 
 
                 started body slamming me on the floor.  He had 
 
                 ahold of my arm and my leg.  Then he picked me up 
 
                 again threw me on the floor again.  Then he threw 
 
                 me up against the wall.  Then he picked me up 
 
                 again and threw me on Darrell.  Then he told me 
 
                 you better tell me where you got that information 
 
                 from.  He was asking me about some questions I had 
 
                 asked him before the assault started.  I had asked 
 
                 him about him having a girl friend and her 
 
                 carrying a .45 weapon.  She reportedly said she 
 
                 was going to use this gun on me according to my 
 
                 nephew who was supposed to have been told this by 
 
                 Billie.  Getting back to the assault after he 
 
                 threw me at Darrell he then grabbed me again and 
 
                 threw me towards the bathroom and the wall.
 
            
 
            (Defendants' Exhibit 3B, Page 13).
 
            
 
                 Although claimant returned to work on December 23, 
 
            1991, and was feeling well enough to volunteer working 
 
            Christmas Day, notes of the rehabilitation specialist Deb 
 
            Johnston show claimant reporting on January 9, 1992 that she 
 
            was unable to go to work due to increased low back pain and 
 
            that symptoms have worsened since her husband threw her on 
 
            the floor.  Dr. Hendicks charted on January 16 that 
 
            claimant's problems with her leg shaking whenever she 
 
            descended stairs had "only occurred since she was assaulted 
 
            by her husband."
 
            
 
                 Another incident of domestic violence occurred in June 
 
            1992.  The police report indicates that claimant was knocked 
 
            to the floor at least once, although that is not clearly 
 
            confirmed by claimant's statement.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Following the second incident, claimant moved to the 
 
            state of Illinois, where she began treatment with Dr. Behr.  
 
            On September 21, 1992, claimant reported continued back pain 
 
            and discomfort.  Dr. Behr charted a positive Waddell test 
 
            and expressed his concern about some components of symptom 
 
            magnification.  In the understanding of this writer, a 
 
            positive "Waddell" test refers to inconsistent reporting of 
 
            symptoms (Here, straight leg raising in the supine and in 
 
            the sitting positions), such that failure to report symptoms 
 
            in one test casts suspicion on the positive reporting of 
 
            symptoms in the other.  Dr. Behr further reported positive 
 
            Waddell tests on October 22 and November 23, 1992.  On both 
 
            occasions, Dr. Behr reported concern that he was unable to 
 
            explain claimant's subjective complaints in the absence of 
 
            objective evidence.  On November 23, he was "concerned about 
 
            inappropriate illness behavior."  Claimant was released from 
 
            care p.r.n. (return as needed).  It does not appear that Dr. 
 
            Behr imposed permanent activity restrictions or that he 
 
            rated impairment.  On January 13, 1993, he refused 
 
            claimant's request for a handicap parking sticker.
 
            
 
                 Dr. Hendricks, claimant's other primary treating 
 
            physician, also is not seen to have recommended permanent 
 
            activity restrictions.  However, on March 26, 1992, Dr. 
 
            Hendricks rated impairment as eight percent of the body as a 
 
            whole based on MRI evidence of a bulging disc with one year 
 
            of continued medically documented pain, spasticity, and 
 
            rigidity with decreased range of motion, particularly in 
 
            extension and flexion.
 
            
 
                 Claimant has also been seen for evaluation by Charles 
 
            J. Wright, M.D., Bakkiam Subbiah, M.D., and Robert H. 
 
            Brockman, a doctor of chiropractic.  Claimant was also seen 
 
            in a consulting capacity by Dr. Shivapour, at the behest of 
 
            the Iowa Department of Education, Division of Vocational 
 
            Rehabilitation Services (Exhibit 4G).  That exhibit shows 
 
            that Counselor Schatz found the case "complicated as the 
 
            client is presenting a different picture or set of behaviors 
 
            than what is being presented to the Workers Comp. 
 
            specialist.  This counselor is suspecting that a Workers' 
 
            Comp. settlement may need to be resolved."  This note is 
 
            dated March 30, 1992.  A May 5, 1992 note by Dr. Shivapour 
 
            found a diagnosis of lumbar strain and recommended certain 
 
            activity restrictions: to avoid heavy lifting, protracted 
 
            stooping, squatting, bending, sitting or standing so as to 
 
            aggravate chronic lumbar strain.  Dr. Shivapour recommended 
 
            claimant work in a clerical field to avoid those 
 
            limitations.
 
            
 
                 On this record, Dr. Shivapour is the only physician 
 
            shown to have recommended activity restrictions.  Claimant 
 
            testified that Dr. Hendricks told her she was unable to 
 
            continue work as a nurses' aide and told a vocational 
 
            rehabilitation specialist of a similar recommendation by Dr. 
 
            Wright, but the medical records of those physicians do not 
 
            contain confirmation.
 
            
 
                 Dr. Wright saw claimant for evaluation on May 14, 1993.  
 
            He found no clear pathology to adequately explain claimant's 
 
            symptoms so as to warrant additional aggressive intervention 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            such as surgery and recommended either steroid injections or 
 
            possible additional work hardening.
 
            
 
                 Dr. Subbiah saw claimant on July 9, 1991.  This, of 
 
            course, was fairly early in claimant's regimen of treatment, 
 
            and even before the MRI scan was taken.  Dr. Subbiah 
 
            reported that claimant's neurologic examination was well 
 
            within normal limits, except for subjective complaints of 
 
            pain and reported decrease sensation in the L2-3 
 
            distribution along the medial foot.  Dr. Subbiah felt 
 
            claimant should be actively mobilized for work through work 
 
            hardening, and should be returned to work initially to light 
 
            duty and then full duty.
 
            
 
                 Dr. Brockman saw claimant on March 17, 1993.  His 
 
            diagnosis was of sacroiliac subluxation complex with 
 
            component parts including a probable L5 posterior disc 
 
            herniation and lower lumbar spinal stenosis L5-L5.  Although 
 
            Dr. Brockman utilized plain film x-rays in diagnosing a 
 
            probable herniation, it does not appear that he was aware of 
 
            the negative MRI and CAT scan studies.  Dr. Brockman went on 
 
            to rate permanent impairment liberally at 45 percent of the 
 
            whole person, citing the American Medical Association Guides 
 
            in reaching his total.
 
            
 
                 Claimant underwent work hardening at Burlington Medical 
 
            center in 1991.  The report of Deb Hamilton and Krista Gaal 
 
            dated September 4, 1991, shows that claimant was 
 
            inconsistent and frequently late to sessions.  Her 
 
            motivation was described as "questionable."
 
            
 
                 Claimant also underwent a functional capacity 
 
            evaluation at Rockford Memorial Hospital on July 22, 1993.  
 
            John Gerrond, P.T. and Steven Spencer, M.S., concluded:
 
            
 
                 Due to the worker curtailing a majority of 
 
                 subtests secondary to pain complaints and an 
 
                 absence of signs of physical exertion during 
 
                 material handling activities, it is not felt the 
 
                 worker's performance is representative of a 
 
                 maximum effort.  Therefore, her functional 
 
                 capacity has not been classified according to 
 
                 Department of Labor standards.  Keeping in mind 
 
                 that the evaluation was felt to be less than a 
 
                 maximum effort, the worker's demonstrated physical 
 
                 capacity is outlined in the enclosed Functional 
 
                 Capacity Evaluation Summary.
 
            
 
                 Based on the worker's testing positive for 
 
                 inappropriate illness behavior as well as her 
 
                 observed pain behaviors during the clinical 
 
                 performance of this evaluation, it is felt she 
 
                 does display inappropriate illness behavior.  This 
 
                 also correlates with the fact that medical imaging 
 
                 has not produced any diagnostic findings which can 
 
                 account for her extreme pain level.
 
            
 
            (Exhibit 5A, Page 29).
 
            
 
                 Three days prior to hearing, claimant obtained work as 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            a security guard on a part time basis.  Although vocational 
 
            rehabilitation specialist Birgit Fries (who referred 
 
            claimant to the opening) testified that her job was full 
 
            time, claimant reported being hired for only sixteen hours 
 
            per week, and that she splits time with a retired gentleman.  
 
            Fries' testimony on this point, being hearsay, is less 
 
            persuasive.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Even though Dr. Shivapour is the only physician shown 
 
            to have imposed permanent activity restrictions, it seems 
 
            clear from his recommendations that claimant should not 
 
            return to work as a nurses' aide.  Such work may be 
 
            emotionally satisfying, but it clearly involves hard 
 
            physical labor.  Although the two physicians to have rated 
 
            impairment differ greatly in their opinions, both find at 
 
            least some physical impairment.  Dr. Hendricks' opinion is 
 
            preferred, since as a doctor of medicine, he is better 
 
            qualified than a chiropractor to apply American Medical 
 
            Association Guidelines as set forth in the AMA Guides to the 
 
            Evaluation of Permanent Impairment.
 
            
 
                 Observation of claimant's behavior and posture at 
 
            hearing was indicative of great physical disability, but it 
 
            will be recalled that numerous practitioners in this record 
 
            question her motivation and the appropriateness of her 
 
            extreme pain behavior absent correlative objective findings.  
 
            Self imposed limitations are far less significant than 
 
            medically imposed restrictions.
 
            
 
                 Claimant is 29 and has obtained her GED.  She does 
 
            appear capable of retraining, and is now employed as a 
 
            security guard within the restrictions suggested by Dr. 
 
            Shivapour.  Although part time, claimant will presumably be 
 
            eventually able to work as a full time security guard, 
 
            should she so choose.  This job pays $5.00 per hour, 
 
            slightly below (extrapolated to full time, of course) 
 
            claimant's gross weekly earnings of $231.00 for the thirteen 
 
            weeks prior to her injury (at 40 hours per week, an average 
 
            of $5.78).
 
            
 
                 Based upon the foregoing in specific and the record 
 
            otherwise in general, it is held that claimant has sustained 
 
            a permanent industrial disability equivalent to fifteen 
 
            percent of the body as a whole, or 75 weeks.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay claimant seventy-five (75) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of one hundred fifty-six and 20/100 dollars ($156.20) 
 
            per week commencing November 1, 1991.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Bryan J Humphrey
 
            Attorney at Law
 
            708 Eighth Street
 
            Fort Madison Iowa 52627
 
            
 
            Ms Angela A Swanson
 
            Attorney at Law
 
            5400 University Avenue
 
            West Des Moines Iowa 50266
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 15, 1993
 
                                          DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARY FRANCES DAVIS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976932
 
            BURLINGTON MEDICAL CENTER,    :
 
                                          :        ARBITRATION
 
                 Employer,                :
 
                                          :         DECISION
 
            and                           :
 
                                          :
 
            FARM BUREAU MUTUAL            :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Industrial disability determined.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
DONALD D. CONKLIN, Employee,    
 
by CHARLENE JOHNSON-CONKLIN,    
 
spouse,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                        File No. 977122
 
MACMILLAN OIL COMPANY, INC.,    
 
                                         A P P E A L
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
UNITED STATES FIDELITY AND      
 
GUARANTY COMPANY,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
                         STATEMENT OF THE CASE
 
 
 
Claimant, Charlene Johnson-Conklin, filed a petition for Arbitration, 
 
Death Benefits and Equitable Apportionment on February 26, 1993 against 
 
Donald D. Conklin's former employer, MacMillan Oil Company, Inc., and 
 
its insurance carrier, United States Fidelity and Guaranty Company.  
 
Claimant's petition alleged that on March 1, 1991 she was the common 
 
law wife of Donald D. Conklin, who was tragically killed while at work 
 
on that date.  An answer was filed by the defendants on March 18, 1993 
 
denying the existence of a common law marriage between Charlene and 
 
Donald.  Shortly after Donald's death, defendants began paying and 
 
continue to pay workers' compensation death benefits on behalf of 
 
Donald's dependent children.
 
 
 
A hearing was held on September 20, 1994 in Des Moines, Iowa before a 
 
deputy industrial commissioner.  The deputy filed an Arbitration 
 
Decision on October 4, 1994 and defendants filed a notice of appeal on 
 
October 21, 1994, appealing the deputy's decision that held claimant is 
 
the common law wife of Donald D. Conklin and is entitled to death 
 
benefits under the workers' compensation act.
 
 
 
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.
 
 
 
                              ISSUE
 
 
 
The sole issue on appeal is whether Charlene Johnson-Conklin is the 
 
common law wife of the deceased employee, Donald D. Conklin.
 
 
 
                         FINDINGS OF FACT
 
 
 
Charlene graduated from the Greater Des Moines Education Center in 1973 
 

 
 
 
 
 
 
 
 
 
earning a high school diploma.  (Transcript, pages 72-73)
 
 
 
Charlene Johnson (maiden name) and Donald Conklin were married May 16, 
 
1974.  (Tr., p. 73)  Charlene took her husband's surname and became 
 
known as Charlene Conklin.  To this marriage three children were born:  
 
Tabitha, Virginia and Crystal, ages 18, 16 and 15 respectively.[1]  
 
(Tr., pp. 70-71)  Prior to her marriage to Donald, Charlene gave birth 
 
to a son, Lee.  Donald is not the father of Lee.  (Tr., pp. 70-71)  
 
 
 
As a result of Donald's marital infidelity, Charlene and Donald 
 
separated in 1980.  (Tr., p. 74)  Charlene and Donald were divorced 
 
August 20, 1985.  (Tr., p. 73)
 
 
 
From 1980 until August 1987 Donald lived with another woman.  In August 
 
1987 Charlene and Donald reconciled and at that time began living 
 
together along with their children in a home they rented at 1713 Ovid, 
 
Des Moines.  (Tr., pp. 74-76)  With the exception of a separation 
 
during the three consecutive months ending in January 1990, Charlene 
 
and Donald lived together continuously at the above address from August 
 
1987 until Donald's death on March 1, 1991.[2]  (Tr., pp. 76, 78, 83 & 
 
94)
 
 
 
Charlene contends a common law marriage began in August 1987 (Tr., p. 
 
107) and that it was the intent of herself and Donald to live together 
 
as husband and wife, but they did not think it was necessary "to get 
 
remarried legally."  (Tr., p. 75)
 
 
 
While living together Charlene and Donald shared the same bedroom and 
 
had a relationship that included sex (Tr., p. 77); shared in the 
 
responsibility of raising their children; in conversations between 
 
themselves referred to each other as husband and wife (Tr., p. 83); 
 
shared household chores (Tr., p. 84); and shared rent, utility and 
 
other household expenses.  (Tr., p. 92)  During this period of 
 
cohabitation Charlene had no other romantic relationships and has no 
 
reason to believe Donald had any such relationships.  (Tr., p. 93)  
 
During the entire period of cohabitation Charlene used her maiden name 
 
"Johnson."  (Tr., p. 106)  Charlene did not go by "Conklin" or 
 
"Johnson-Conklin" until after the date of Donald's death.  (Tr., p. 
 
106)
 
 
 
On August 28, 1989 Charlene opened a savings account solely in her name 
 
at the United Methodist Minister Service Credit Union.  Charlene and 
 
Donald became joint owners of this savings account on September 24, 
 
1990.  (Tr., p. 90; Joint Exhibit F)
 
 
 
On June 15, 1990 Donald signed an HMO Iowa enrollment form.  On this 
 
form Donald indicated his marital status was "divorced," but elsewhere 
 
on the form it was indicated Charlene Johnson was his spouse.  (Tr., 
 
pp. 96-97; Jt. Ex. J)
 
 
 
During the period of cohabitation Charlene publicly referred to Donald 
 
as her husband.  In the presence of Charlene, Donald never objected to 
 
this representation nor did he ever indicate in any manner that the 
 
representation was not true.  (Tr., pp. 101-102)  During the period of 
 
cohabitation Donald publicly referred to Charlene as his wife, old lady 
 
and better half.  (Tr., pp. 100-101)  Donald's public utterances that 
 
Charlene was his wife were not always consistent.  Barbara Harkins, a 
 
co-worker and friend of Donald, offered credible testimony.  Ms. 
 
Harkins and Donald discussed his personal life, including family.  In 
 
the presence of Ms. Harkins, Donald never referred to Charlene as his 
 
wife.  He always referred to Charlene as his "ex-wife" or "ex."  (Tr., 
 
pp. 136-138, 140; Jt. Ex. O)  Likewise, Jolene Ann Gowen, a co-worker 
 
and friend of Donald, offered credible testimony.  Donald told Ms. 
 
Gowen that Charlene was his ex-wife and, in the presence of Ms. Gowen, 
 
always referred to Charlene as "my ex."  (Tr., pp. 152-153, 155; Jt. 
 
Ex. P)
 

 
 
 
 
 
 
 
 
 
 
 
Charlene's public utterances that Donald was her husband are 
 
inconsistent with various legal documents she filed with public and 
 
private institutions.
 
 
 
Joint Exhibits A, D, E, G and I are federal income tax returns signed 
 
and filed by Charlene during the period of her and Donald's 
 
cohabitation.  (Tr., p. 109)  On each of these tax returns Charlene 
 
indicates her last name is "Johnson" and the filing status is either 
 
"single" or "head of household."  On the 1988 tax return, Joint Exhibit 
 
E, Charlene indicates she is divorced.
 
 
 
Joint Exhibit B is the rental agreement for the house on Ovid that was 
 
rented by Charlene and Donald.  Charlene uses her maiden name on this 
 
document.  Page 3 of this joint exhibit is the rental application form 
 
filled out by Charlene.  (Tr., p. 108)  Thereon, Charlene indicates 
 
Donald Conklin is her "ex-husband."
 
 
 
Joint Exhibit C is an application for life insurance that was completed 
 
by Charlene during her cohabitation with Donald.  On this document 
 
Charlene uses her maiden name and names "Donald Conklin, ex-spouse," as 
 
the primary beneficiary.  (Tr., pp. 108-109)
 
 
 
Joint Exhibit H is an application for Medicaid benefits prepared and 
 
filed by Charlene in January 1990.  (Tr., p. 113)  Charlene uses her 
 
maiden name.  On page 3 of this joint exhibit Charlene indicates her 
 
marital status is "divorced."  (Tr., p. 114)
 
 
 
Joint Exhibits A, B, C, D, E, G, H and I pertain to periods of time 
 
prior to Donald's death.  By way of summary, Charlene uses her maiden 
 
name on each of these documents.  Not once does she use the surname 
 
"Conklin."  On each of these documents Charlene either expressly or 
 
impliedly indicates her marital status is "single" or "divorced."  Not 
 
once does she indicate she is married or Donald's wife.
 
 
 
Lack of sophistication and lack of knowledge are cited by Charlene as 
 
explanations for listing herself as unmarried or divorced on these 
 
legal documents.
 
 
 
This trier of fact next turns his attention to those joint exhibits 
 
that pertain to periods of time after Donald's death.  In chronological 
 
order:
 
 
 
Joint Exhibit L, dated March 6, 1991, is a statement of charges from 
 
the funeral home handling Donald's arrangements.  Charlene signs this 
 
document "Mrs. Donald Conklin."
 
 
 
Joint Exhibit K is the Certificate of Death signed by Medical Examiner 
 
Dr. R. C. Wooters on March 11, 1991.  "Charlene Conklin" is shown as 
 
the informant and surviving spouse.
 
 
 
Joint Exhibit M is an application for Social Security benefits as 
 
Donald's surviving spouse signed and filed by Charlene on April 1, 
 
1991.  On page 3 of this joint exhibit she signs her name "Charlene S. 
 
Johnson-Conklin."
 
 
 
Joint Exhibit N is Charlene's 1991 federal income tax return signed on 
 
January 25, 1992 by "Charlene S. Johnson-Conklin."
 
 
 
Charlene receives Social Security benefits as Donald's surviving 
 
spouse.  (Tr., pp. 105-106)  The Social Security Administration's 
 
intake person typed the following information on Charlene's 
 
application:
 
 
 
The deceased was last married to Charlene Johnson on May 16, 1974 in 
 
Des Moines, Iowa by a clergyman or public official.  The marriage ended 
 

 
 
 
 
 
 
 
 
 
by death on March 1, 1991.
 
(Jt. Ex. M, p. 2)
 
 
 
Charlene admits that the information relative to her marital history is 
 
incomplete because she failed to tell the intake person that she and 
 
Donald were divorced in 1985.  (Tr., pp. 117-118)
 
 
 
              REASONING AND CONCLUSIONS OF LAW
 
 
 
Although Iowa recognizes the validity of common law marriages, such a 
 
claim of marriage is regarded with suspicion and will be closely 
 
scrutinized.  In re Estate of Fisher, 176 N.W.2d 801, 805 (Iowa 1970); 
 
In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979)  The 
 
supreme court repeatedly has asserted that no public policy favoring 
 
common law marriage is in existence in Iowa.  In re Marriage of Reed, 
 
226 N.W.2d 795 (Iowa 1975); In re Estate of Fisher, 176 N.W.2d at 804; 
 
Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, (2nd 
 
Ed.), 14-4.  The party asserting the existence of a common law 
 
marriage must prove three elements by a preponderance of clear, 
 
consistent, and convincing evidence.  In re Estate of Stodola, 519 
 
N.W.2d 97, 98 (Iowa App. 1994); In re Marriage of Gebhardt, 426 N.W.2d 
 
651, 652 (Iowa App. 1988)  The three elements are:  (1) present intent 
 
and agreement to be married by both parties;  (2) continuous 
 
cohabitation; and, (3) public declaration that the parties are husband 
 
and wife.  Winegard, 278 N.W.2d at 510; Gebhardt, 426 N.W.2d at 652; In 
 
re Marriage of Jones, 451 N.W.2d 25, 27 (Iowa App. 1989); Stodola, 519 
 
N.W.2d at 98.
 
 
 
For reasons that follow, the evidence of record in the instant case 
 
causes the industrial commissioner to conclude that claimant, Charlene 
 
Johnson-Conklin, has failed to establish by a preponderance of clear, 
 
consistent, and convincing evidence, the existence of a common law 
 
marriage between herself and the deceased employee, Donald D. Conklin.
 
 
 
The industrial commissioner's analysis begins with required element 
 
number two, i.e., "continuous cohabitation."  From August 1987 through 
 
March 1, 1991, the date of death, Charlene and Donald, with the 
 
exception of a brief three-month period, continuously cohabited.  The 
 
industrial commissioner concludes that the "continuous cohabitation" 
 
element of a common law marriage has been established by a 
 
preponderance of clear, consistent, and convincing evidence.  
 
Therefore, the analysis of whether there was a common law 
 
marriage between Charlene and Donald continues.
 
 
 
The industrial commissioner next addresses required element number one, 
 
i.e., "present intent and agreement to be married by both parties."
 
 
 
WHILE COHABITING FROM 1987-1991, DID CHARLENE HAVE A PRESENT INTENT AND 
 
AGREEMENT TO BE MARRIED TO DONALD?  To be sure, there is evidence in 
 
this record that tends to show Charlene had a present intent and 
 
agreement to be married to Donald.  For example, each of the following 
 
facts present in the record are favorable to Charlene as she attempts 
 
to satisfy the "present intent" required element:  Sharing the same 
 
bedroom and having a relationship that included sex; sharing the 
 
responsibility of raising their children; referring to each other as 
 
husband and wife; Donald not objecting to Charlene introducing him as 
 
her husband (non-denial of representation is a "strong circumstance 
 
evidencing that there is a meeting of the minds"), In re Estate of 
 
Fisher, 176 N.W.2d 801, 806-807, (Iowa 1970); sharing household chores; 
 
sharing household expenses; no other romantic relationships; and 
 
opening a joint savings account.  However, when reviewing and analyzing 
 
the totality of evidence present in this record, the industrial 
 

 
 
 
 
 
 
 
 
 
commissioner concludes that Charlene has failed  to meet her legal 
 
burden of establishing "present intent" by a preponderance of clear, 
 
consistent, and convincing evidence.  To the contrary, the totality of 
 
evidence is anything but clear, consistent, and convincing.
 
 
 
Throughout the entire period of cohabitation, Charlene, without fail, 
 
used the name "Johnson" on legal documents she filed with public and 
 
private institutions; she, without fail, filed federal income tax 
 
returns as "single" or "head of household"; and she listed Donald as 
 
her "ex-husband" on documents and listed her legal status as 
 
"divorced."  (Emphasis added)  The documentary evidence of record shows 
 
that not once during the entire period of cohabitation did Charlene 
 
show herself as married or Donald's wife.  (Emphasis added)  In fact, 
 
Charlene did not remain silent as to her marital status and 
 
relationship to Donald.  She affirmatively showed her marital status as 
 
divorced or single and affirmatively listed Donald as her ex-husband.
 
 
 
Charlene attempts to explain away the damaging effects of this 
 
documentary evidence by citing her lack of sophistication and lack of 
 
knowledge.  The industrial commissioner recognizes that Iowa courts 
 
have held that a lack of knowledge and a lack of sophistication 
 
regarding legal documents will not defeat a claim of common law 
 
marriage, but are factors to be considered along with other evidence.  
 
Gebhardt, 426 N.W.2d at 653.  However, in the instant case, Charlene's 
 
claim of lack of sophistication and lack of knowledge is unconvincing 
 
to this trier of fact and law.  Charlene had more than ample 
 
opportunity to show a present intent to be married to Donald on the 
 
various legal documents she filed.  On her income tax returns, her 
 
rental application, her application for life insurance, and her 
 
application for public assistance, Charlene revealed her subjective 
 
intent not to be presently married to Donald each and every time she 
 
listed herself as "divorced," or listed Donald as her "ex-spouse."  It 
 
is quite telling to compare the legal documents filed by Charlene 
 
before Donald's death with those filed by Charlene subsequent to 
 
Donald's death.  Not once prior to Donald's death did Charlene file a 
 
document that listed her as being married or Donald's wife.  (Emphasis 
 
added)  Subsequent to Donald's death, each and every document of record 
 
filed by Charlene indicates she is married to Donald and each and every 
 
document lists her name as either "Johnson-Conklin" or "Conklin."  
 
(Emphasis added)  Within a matter of days after Donald's death, 
 
documents start appearing that indicate Charlene is married to Donald.  
 
 
 
(The statement from the funeral home dated March 6, 1991; the 
 
certificate of death dated March 11, 1991; and the application for 
 
Social Security benefits dated April 1, 1991.)  The industrial 
 
commissioner is not unmindful that married persons do not always take 
 
the same last name.  However, Charlene took Donald's surname when they 
 
were ceremonially married and kept that surname until divorced in 1985. 
 
 
 
 Upon being divorced she consciously decided to restore her maiden 
 
name.  Charlene immediately began using Donald's surname upon his 
 
death, but not during the period of cohabitation.  Under such 
 
circumstances, Charlene's failure to use Donald's surname from 
 
1987-1991 has evidentiary value and is a factor that weighs against 
 
Charlene's assertion of a common law marriage.
 
 
 
For these reasons, the totality of evidence present in this record 
 
causes the industrial commissioner to conclude that Charlene has failed 
 
to meet her legal burden of establishing by clear, consistent, and 
 
convincing evidence a present intent and agreement to be married to 
 
Donald.
 
 
 
WHILE COHABITING FROM 1987-1991, DID DONALD HAVE A PRESENT INTENT AND 
 
AGREEMENT TO BE MARRIED TO CHARLENE?  As was the case with Charlene, 
 
there is evidence in this record that tends to show Donald had a 
 
present intent and agreement to be married to Charlene.  The examples 
 
(see page 7) listed by the industrial commissioner when analyzing 
 
Charlene's "present intent" are equally applicable in analyzing 
 

 
 
 
 
 
 
 
 
 
 
 
Donald's "present intent" and will not be repeated herein.  However, 
 
just as was the case with Charlene, the totality of evidence present in 
 
this record causes the industrial commissioner to conclude that 
 
Charlene has failed to meet her legal burden of establishing Donald's 
 
"present intent" by a preponderance of clear, consistent, and 
 
convincing evidence.
 
 
 
The HMO application, Joint Exhibit J, was signed by Donald and 
 
indicated Charlene was his spouse.  A close examination of Joint 
 
Exhibit J reveals it is not "clear, consistent, and convincing 
 
evidence" of Donald's alleged intent to be married to Charlene.  Even 
 
though Charlene is listed as Donald's spouse on the HMO application, 
 
elsewhere on the application Donald's marital status is listed as 
 
"Divorced."  The inconsistencies associated with Joint Exhibit J cause 
 
the industrial commissioner to conclude that this document is not 
 
"clear, consistent, and convincing evidence" of Donald's alleged intent 
 
to be married to Charlene. 
 
 
 
The credible testimony of two of Donald's co-workers, Barbara Harkins 
 
and Jolene Ann Gowen, both of whom have no personal stake in this 
 
matter, cast further doubt on Charlene's assertion that Donald had a 
 
"present intent" to be married.  In the presence of these co-workers, 
 
Donald consistently referred to Charlene as his "ex-wife" or "ex."  He 
 
never referred to Charlene as his wife in conversations with these 
 
co-workers.
 
 
 
For these reasons, the totality of evidence present in this record 
 
causes the industrial commissioner to conclude that Charlene has failed 
 
to meet her legal burden of establishing by clear, consistent, and 
 
convincing evidence that Donald had a present intent and agreement to 
 
be married to her.
 
 
 
The industrial commissioner next addresses required element number 
 
three, i.e., "public declaration that the parties are husband and 
 
wife."
 
 
 
Clearly, there is evidence in this record that both Charlene and 
 
Donald, during the period of cohabitation, publicly held themselves out 
 
as husband and wife.  The testimony of claimant and her credible 
 
witnesses leaves no doubt in the industrial commissioner's mind that 
 
such public declarations were made by Charlene and Donald.  However, 
 
the record must be viewed in its entirety to resolve the question of 
 
whether Charlene has carried her legal burden of establishing the 
 
"public declaration" element by a preponderance of clear, consistent, 
 
and convincing evidence.
 
 
 
For the same reasons previously utilized and discussed by the 
 
industrial commissioner when analyzing required element number one, 
 
i.e., "present intent", the industrial commissioner concludes that 
 
Charlene has failed to carry her legal burden as it relates to the 
 
"public declaration" required element.
 
 
 
The reader's attention is brought to the analysis appearing under the 
 
headings "WHILE COHABITING FROM 1987-1991, DID CHARLENE HAVE A PRESENT 
 
INTENT AND AGREEMENT TO BE MARRIED TO DONALD?" and "WHILE COHABITING 
 
FROM 1987-1991, DID DONALD HAVE A PRESENT INTENT AND AGREEMENT TO BE 
 
MARRIED TO CHARLENE?".  (see pages   7-9)  The reasoning appearing 
 
therein is the basis for the industrial commissioner concluding that 
 
Charlene has failed to carry her legal burden of establishing required 
 
element number three, i.e., "public declaration", by clear, consistent, 
 
and convincing evidence.  The industrial commissioner incorporates that 
 
reasoning into the analysis of the "public declaration" requirement and 
 
deems it unnecessary to repeat that analysis herein.  Just as was the 
 
case with "present intent," the "public declaration" element is rife 
 
with contradictions and inconsistencies, thus leading to the conclusion 
 
that claimant has failed to carry her legal burden.
 

 
 
 
 
 
 
 
 
 
 
 
In summary, Charlene carried her legal burden as it relates to the 
 
"continuous cohabitation" required element; she failed to carry her 
 
legal burden as it relates to the "present intent" and "public 
 
declaration" required elements.  A common law marriage between Charlene 
 
Johnson-Conklin and Donald D. Conklin has not been established.
 
 
 
Before leaving this issue, the industrial commissioner must address the 
 
fact that Charlene receives Social Security benefits as Donald's 
 
surviving spouse.  As stated in the findings of fact, Charlene admits 
 
that the information relative to her marital history is incomplete 
 
because she failed to tell the Social Security Administration's intake 
 
person that she and Donald were divorced in 1985.  The Social Security 
 
Administration clearly was proceeding with the belief that Charlene and 
 
Donald were married by a clergyman or public official and that that 
 
marriage remained intact until Donald's death.  Based upon the 
 
information provided to the Social Security Administration, there was 
 
no reason for that federal agency to believe Charlene was claiming to 
 
be the common law wife of Donald.  As Charlene did not provide a 
 
complete marital history to the Social Security Administration, that 
 
federal agency's determination that Charlene is Donald's surviving 
 
spouse has no preclusive effect and carries no evidentiary weight in 
 
this contested case proceeding.
 
 
 
WHEREFORE, the decision of the deputy is reversed.
 
 
 
                              ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That claimant shall take nothing from this proceeding.
 
 
 
That defendants shall pay the costs of this matter including the 
 
transcription of the hearing.  
 
 
 
Signed and filed this ____ day of February, 1995.      
 
                            ________________________________                 
 
                             BYRON K. ORTON           
 
                             INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. David S. Wiggins
 
Attorney at Law
 
1200 Valley West Dr
 
700 West Towers
 
West Des Moines  IA  50266-1908
 
 
 
Ms. Stephanie L. Glenn
 
Attorney at Law
 
PO Box 10434
 
Des Moines  IA  50306
 
 
 
 
 
 
 
[1] Age at the time of hearing. 
 
[2] Tragically, Donald was shot and killed at his place of employment 
 
during an armed robbery.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                  1901
 
                                  Filed February 16, 1995
 
                                  Bryon K. Orton
 
          
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
DONALD D. CONKLIN, Employee, 
 
by CHARLENE JOHNSON-CONKLIN,  
 
Spouse,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                       File No. 977122
 
MACMILLAN OIL COMPANY, INC., 
 
                                        A P P E A L
 
     Employer, 
 
                                       D E C I S I O N
 
and       
 
          
 
UNITED STATES FIDELITY AND,  
 
GUARANTY COMPANY,   
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
 
 
1901
 
Claimant and decedant were married, then divorced.  Several years 
 
later, a reconciliation took place and the couple co-habited, although 
 
claimant, who had returned to using her maiden name at the time of the 
 
divorce, continued to use it.  On all legal documents, bank accounts 
 
and tax returns, claimant used her maiden name until his death, at 
 
which time she changed her surname to his.  Held no common-law marriage 
 
existed.
 
 
 
 
            
 
 
 
 
 
                  
 
 
 
                                          2909
 
                                          Filed September 1, 1993
 
                                          Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT R. VANDERVORT,         :
 
                                          :       File No. 977162
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      E X P E D I T E D
 
                                          :
 
            CONSOLIDATED FREIGHTWAYS,     :        H E A R I N G
 
            INC.,                         :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :       (343 IAC 4.44)
 
            and                           :
 
                                          :
 
            OLD REPUBLIC INSURANCE CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2909
 
            Claimant's attorney requested a permanent impairment rating 
 
            from the authorized treating physician.
 
            
 
            Defendants refused to pay for a section 85.39 independent 
 
            medical examination, and argued that they were not going to 
 
            request a rating from the authorized treating physician.
 
            Defendants' argument was rejected; they were ordered to pay 
 
            for an independent medical examination performed by 
 
            claimant's physician of choice.
 
            
 
 
            
 
     
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT R. VANDERVORT,         :
 
                                          :       File No. 977162
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      E X P E D I T E D
 
                                          :
 
            CONSOLIDATED FREIGHTWAYS,     :        H E A R I N G
 
            INC.,                         :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :       (343 IAC 4.44)
 
            and                           :
 
                                          :
 
            OLD REPUBLIC INSURANCE CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is an expedited proceeding pursuant to rule 343 
 
            IAC 4.44.  Claimant, Robert Vandervort, filed an original 
 
            notice and petition requesting an independent medical 
 
            examination pursuant to Iowa Code section 85.39.  Mr. 
 
            Vandervort states that due to a work-related injury 
 
            occurring on March 4, 1991, he has sustained a permanent 
 
            disability which has been evaluated by James Blessman, M.D.  
 
            He requests an independent medical evaluation from Marc 
 
            Hines, M.D.
 
            
 
                 Claimant offered exhibits 1-5.  At the conclusion of 
 
            the hearing, exhibit 5 was withdrawn; exhibits 1, 2 and 4 
 
            were received, and claimant's exhibit 3 was excluded because 
 
            it had not been timely served on the defendants.  
 
            
 
                 Defendants offered exhibits A-E, which were received. 
 
            
 
                 Both parties offered oral arguments, with additional 
 
            comments from Heather Dwinell, a representative from the 
 
            insurance carrier.  
 
            
 
                 The matter came on for a telephone hearing before the 
 
            undersigned deputy industrial commissioner on August 31, 
 
            1993.  The proceeding was audio taped.  
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Robert Vandervort, sustained an injury on 
 
            March 4, 1991 which arose out of and in the course of his 
 
            employment.  
 
            
 
                 While he has received treatment from numerous 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            physicians, the defendant insurance company admitted that 
 
            Roy Overton, M.D., was the authorized treating physician.  
 
            Dr. Overton referred claimant to James Blessman to evaluate 
 
            claimant's permanent impairment.  This evaluation was 
 
            performed on February 25, 1993, and Dr. Blessman issued his 
 
            report to claimant's attorney on March 3, 1993.  
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 Iowa Code Section 85.39 provides, in relevant part:
 
            
 
                    After an injury, the employee, if requested by 
 
                 the employer, shall submit for examination at some 
 
                 reasonable time and place and as often as 
 
                 reasonably requested, to a physician or physicians 
 
                 authorized to practice under the laws of this 
 
                 state or another state, without cost to the 
 
                 employee; but if the employee requests, the 
 
                 employee, at the employee's own cost, is entitled 
 
                 to have a physician or physicians of the 
 
                 employee's own selection present to participate in 
 
                 the examination....
 
            
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  
 
            
 
                 The agency has stated that a referral to another 
 
            physician from the authorized treating physician is 
 
            authorized.   See, Coleman v. Coleman Indus. Cleaning, 4 
 
            Iowa Indus. Comm'r Rep. 67 (1984).  
 
            
 
                 Defendants argue that claimant has already received his 
 
            independent medical examination because claimant's attorney 
 
            asked Dr. Blessman for the permanency rating.  They posit 
 
            that they had not requested any ratings, nor had they 
 
            contemplated asking for any ratings.  
 
            
 
                 Claimant argues that employers and insurance companies 
 
            would always be able to circumvent the spirit of Iowa Code 
 
            section 85.39 by never requesting an opinion addressing a 
 
            permanent disability.  With no prior rating, claimant's 
 
            right to an independent medical examination would never 
 
            arise, and defendants would never be obligated to pay for an 
 
            independent medical examination.
 
            
 
                 The undersigned agrees with claimant's attorney.  
 
            Clearly, Dr. Overton and Dr. Blessman have been authorized 
 
            treating physicians.  One has rendered an opinion with 
 
            respect to the amount of permanent impairment claimant has 
 
            sustained due to the work-related injury.  Claimant did not 
 
            chose Dr. Blessman to evaluate his permanent disability; 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            therefore, claimant is entitled to select a physician for an 
 
            independent medical examination, and defendants are 
 
            responsible for payment of the expense of the examination.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant has selected Dr. Hines, who evaluated claimant 
 
            on May 28, 1993.  Defendants are ordered to pay for the 
 
            costs associated with this independent medical examination. 
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
                 
 
            Ms Mary S Bernabe
 
            Attorney at Law
 
            1150 Polk Blvd
 
            Des Moines IA 50311
 
            
 
            Mr Michael R Hoffmann
 
            Attorney at Law
 
            Breakwater Bldg
 
            3708 75th St
 
            Des Moines IA 50322
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
------------------------------------------------------
 
GEORGE HOBSON,  
 
 
 
     Claimant, 
 
         
 
vs.        
 
         
 
JOHN'S FLOOR COVERING,    
 
                               File Nos.  977189
 
                                         1007645
 
                                         1037274
 
     Employer,
 
 
 
and        
 
         
 
WEST BEND MUTUAL INSURANCE,    
 
         
 
     Insurance Carrier,  
 
         
 
                                    A R B I T R A T I O N
 
         
 
                                       D E C I S I O N
 
GEORG HOBSON,   
 
         
 
     Claimant, 
 
         
 
and        
 
         
 
OASIS MANUFACTURING, 
 
         
 

 
         
 
         
 
     Employer, 
 
         
 
and        
 
         
 
STATE FARM INSURANCE CO., 
 
         
 
     Insurance Carrier, 
 
     Defendants,    
 
-------------------------------------------------------         
 
                  STATEMENT OF THE CASE
 
         
 
     These cases came on for hearing on October 18, 1994, at 
 
Cedar Rapids, Iowa.  These are proceedings in arbitration 
 
wherein claimant seeks compensation for permanent partial 
 
disability benefits as a result of alleged injuries 
 
occurring on February 20, 1991 (file number 977189), January 
 
22, 1992 (file number 1007645), and September 8, 1992 (file 
 
number 1037274).  The record in these proceedings consists 
 
of the testimony of claimant, William Arnold, Tom Conner, 
 
the stipulated testimony of Randy and Ron Benesh; claimant's 
 
exhibits 1 and 2; defendant Oasis exhibits F, G, I and J; 
 
and, joint exhibits 1 through 13.
 
         
 

 
         
 
 
 
                  
 
         
 
                            ISSUES
 
         
 
The issues for resolution are:
 
         
 
Regarding file number 977189 (alleged injury date of 
 
February 20, 1991), file number 1007645 (alleged injury date 
 
of January 22, 1992), and file number 1037274 (alleged 
 
injury date of September 8, 1992).
 
         
 
                    
 
         
 
1.  Whether there is a causal connection as to any 
 
healing period or temporary total disability or permanent 
 
partial disability benefits.  The parties agree that 
 
claimant was off work on January 21, 1993 through March 3, 
 
1993;
 
         
 
2.  The nature and extent of claimant's disability and 
 
entitlement to disability benefits, if any; and,
 
         
 
3.  An 85.27 medical issue, the issue being causal 
 
connection.
 
         
 
                    
 
Regarding file number 1037274 (alleged injury date of 
 
September 8, 1992):
 
         
 
In addition to the above issues, there is an additional 
 
issue of whether claimant gave timely notice under the 
 
provisions of 85.23.
 
         
 
                  FINDINGS OF FACT
 
         
 
                    
 
The undersigned deputy, having heard the testimony and 
 
considered all the evidence, finds that:
 
         
 

 
         
 
 
 
                    
 
         
 
Claimant is a 32-year-old high school graduate who took 
 
an additional truck driving course at Kirkwood Community 
 
College but he didn't finish it.  Claimant related his past 
 
job experience to which he referred to claimant's exhibit 1, 
 
pages 2, 3 and 4.  He then described a particular job, the 
 
nature and duties regarding those jobs listed.  It was 
 
obvious during claimant's work history that it was necessary 
 
to lift, twist, bend, etc.  This was claimant's second time 
 
he worked for defendant John's Floor Covering.  The previous 
 
time was around 1982 and 1983 and this last time he began in 
 
1988.  The job was basically the same, which involved 
 
installing carpet, lifting rolls, installing rolls of 
 
carpet, cutting carpet, using a power stretcher, knee 
 
kicker, trimming and gluing.  It required stooping, bending, 
 
being at times on one's hands and knees, and lifting rolls 
 
of carpet some in excess of 100 to 200 pounds.  Claimant was 
 
making $7 per hour when he left John's Floor Covering in 
 
February 1992.
 
         
 
     Claimant began working for Oasis Manufacturing Company 
 
approximately two weeks after he left John's Floor Covering 
 
the last time.  Claimant's job at this company was working 
 
with plaster and plaster molds.  He had to handle 50 pound 
 
bags of plaster.  He indicated some of the molds were 80 
 
pounds and with plaster in them weighed around 125 pounds 
 
and he would have to stand up the molds.  He made $6.25 per 
 
hour when he began and the same wage when he left.  This 
 
defendant made ceramic molds.  Claimant also drove a truck 
 
at times in order to distribute these molds.
 
         
 
     Claimant described how his injury occurred on February 
 
20, 1991, at John's Floor Covering.  He indicated that he 
 
         
 

 
         
 
 
 
 
 
was taking a van loaded with 150 plus feet of carpet early 
 
in the morning.  Claimant indicated that he was inside the 
 
van trying to get the carpet to move in order to take it out 
 
for the job and in so doing 
 
felt a sharp pain in his back and down his buttocks.  He 
 
indicated that the pain got worse as he worked the rest of 
 
the day.
 
         
 
     Claimant described the medical services he received 
 
including going to a chiropractor.  He had physical therapy 
 
and did treadmill exercises.  Claimant eventually had 
 
surgery after more conservative treatment did not work.  
 
Claimant had surgery on April 26, 1991, which involved a 
 
partial hemilectomy, excision of large extruded disc 
 
fragment and minimal laminotomy L4-5.  (Joint Exhibit 3, 
 
page 6)  Claimant indicated that two or three months after 
 
his surgery the doctor returned him to work as an employee 
 
at John's Floor Covering in the same capacity.  Claimant 
 
said it was painful but was told he was young and should 
 
tolerate it.  Claimant said he never felt he fully recovered 
 
but he still has the same symptoms he had before the first 
 
surgery.  He said it feel like he constantly has a charley 
 
horse and numbness on the right side of his foot.
 
         
 
     Claimant testified that the same type of thing happened 
 
regarding his January 22, 1992 injury as he was lifting a 
 
roll of carpet and it began to affect his lower back.  He 
 
said the symptoms in his leg were still there until his 
 
second surgery.  While he doesn't recall, claimant doesn't 
 
dispute he was off work two weeks.
 
         
 
     Claimant indicated that the reason he left John's Floor 
 
Covering to work for Oasis around the first of March 1992 
 
         
 

 
         
 
 
 
 
 
was because it didn't require bending or being on his hands 
 
or knees and there wasn't as much standing.  He said he had 
 
talked to the owner of John's Floor Covering before quitting 
 
and it was decided it would be best if claimant would work 
 
somewhere else.
 
         
 
     Claimant testified that on September 8, 1992, he was 
 
injured again working for Oasis lifting a large mold.  He 
 
said his back popped again.  He indicated the pain was more 
 
severe than in the past.  He said this was the largest mold 
 
they made and that it weighed over 100 pounds.  Claimant 
 
said he felt and heard his back pop and that he told one of 
 
the owers, Ron or Randy, immediately that his back went out.  
 
He said he had a discussion with Ron and Randy Benish, the 
 
owners, as to the accident and medical bills and he 
 
indicated they told him they would pay them.  He understood 
 
that Oasis was contending they had no notice of the injury 
 
but there appears to be no dispute that there was a 
 
discussion as to medical bills within the 90 days of 
 
claimant's September 8, 1992 injury.  Ron and Randy are also 
 
considered his supervisors in addition to being co-owners of 
 
Oasis Manufacturing.
 
         
 
     Claimant acknowledged that in January 1993 his father 
 
had had a heart attack so claimant shoveled his snow.  He 
 
indicated it was about two inches and used a snowblower.  He 
 
indicated his back did get worse and the pain went into his 
 
calf.  Claimant said he had no difficulty handling a 
 
snowblower but had a hard time getting it started since he 
 
had to use a pull cord.  He said it took him about an hour 
 
to remove the snow.
 
         
 
     Claimant said he had his second surgery January 26, 
 
         
 

 
         
 
 
 
 
 
 
 
1993. This surgery involved a partial hemilectomy, removal 
 
of partial extruded disc fragment and further discectomy by 
 
James W. Turner, M.D.  The parties have stipulated that 
 
claimant was off work on January 21, 1993 through March 3, 
 
1993.  He has been employed since that surgery and related 
 
the particular job which included cleaning furnaces, setting 
 
up the truck with hoses, pulling out the registers, etc.  
 
Claimant acknowledged that his back pain was worse after his 
 
January 10, 1993 snow shoveling incident.  Claimant said 
 
the symptoms in his legs were still there after his second 
 
injury.
 
         
 
     Claimant said, on cross-examination by defendant John's 
 
Floor Covering's attorney, he was released to work on August 
 
26, 1991, after his first injury and that there were no 
 
restrictions.  He further acknowledged that he continued to 
 
work through the fall of 1991 and missed no work until the 
 
next incident of January 1992.  He acknowledged that John's 
 
Floor Covering did not pressure him to quit in February 
 
1992.  Claimant solely made a decision on his own.  He 
 
further acknowledged that he sought no further treatment 
 
from his February 1992 layoff date until September 8, 1992, 
 
at which time he incurred another injury at Oasis.
 
         
 
     Claimant described the nature of the job he took with 
 
Oasis a couple weeks after he quit John's Floor Covering 
 
which required lifting weight of 150 pounds and bending and 
 
twisting.  Claimant then was laid off at Oasis in November 
 
1992 after which time claimant indicated he did the normal 
 
activities between the layoff and the snow shoveling 
 
incident in January 1993.
 
         
 
     Although claimant seemed to downplay the snow shoveling 
 
         
 

 
         
 
 
 
 
 
 
 
incident his attention was called to page 46 of his 
 
deposition taken October 28, 1993 (def. Oasis ex. J) in 
 
which on pages 45 to 48 he had testified that he was pushing 
 
a snowblower and his back started to hurt and proceeded to 
 
get worse and he was bedridden for at least two weeks until 
 
he had seen the doctor  Claimant indicated he shortly 
 
thereafter had surgery because of a herniated disc.
 
         
 
     Claimant was on unemployment from the time he was laid 
 
off at Oasis in November 1992 until after his surgery.  He 
 
indicated he waited until October 1993 for a job even though 
 
in March 1993 he was to return to work.  He still continued 
 
to be on unemployment and was not looking for a job.  His 
 
contention is that he thought he was going to be recalled by 
 
Oasis but he did acknowledge that he never discussed with 
 
them about going back to work.  It seems unbelievable to the 
 
undersigned that this claimant under the facts of this case 
 
didn't look for employment because he still thought he was 
 
going back to work for Oasis.  He contends that he was able 
 
to still get unemployment benefits under the circumstances 
 
because he was expected to be recalled and therefore didn't 
 
have to look for the required number of job inquiries or 
 
applications.  Claimant's conduct in this regard is 
 
questioned.
 
         
 
     Claimant acknowledged that he first saw Richard F. 
 
Neiman, M.D., in January 1994 after his second surgery.  
 
This appointment was arranged by his attorney.  He indicated 
 
he was never treated by the doctor before.  He also admitted 
 
that he didn't tell the doctor about the snowblowing 
 
incident and he didn't recall the doctor asking about it 
 
either.  The undersigned would wonder how the doctor would 
 
think about asking about a snowblowing incident if he had no 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
knowledge of it and the claimant hadn't told him about it.  
 
It is obvious the claimant knew the importance of the exam 
 
by Dr. Neiman as to attempting to medically show what might 
 
have caused claimant's medical condition and also to arrive 
 
at an impairment.  He also acknowledged that the medical 
 
expense incurred at the time of the surgery right after the 
 
snow shoveling incident was submitted and paid by his wife's 
 
insurance company and he never asked for it to be paid for 
 
work-related injury.
 
         
 
     Claimant acknowledged that he left work about 3:00 p.m. 
 
on September 8, 1992, the date of his alleged injury and 
 
drove 12 hours the first day toward Las Vegas and completed 
 
the trip the next day.
 
         
 
     Claimant acknowledged that on November 10, 1992, he 
 
told Tom Conner that he lied to Randy when he told him he 
 
hurt his back the day before by moving an air conditioner.  
 
Claimant said that employees jokingly claiming back injury 
 
was common at Oasis.
 
         
 
     Tom Conner, president of Oasis, testified that he knew 
 
claimant and affirmed that there was a layoff at his company 
 
from February 1992 to the end of November 1992.  He had no 
 
knowledge of claimant being injured in September 1992.  The 
 
first notice of any alleged injury was when the claimant 
 
told him that he hurt his back lifting an air conditioner.  
 
He made a report as to the air conditioning incident and 
 
made a note to refresh his memory contemporaneous with this 
 
conversation.  This took place on November 11, 1992, at 9:30 
 
a.m.  He said claimant then later acknowledged he lied and 
 
that he never moved the air cnditioner at all.  He said it 
 
is not true that he jokes about having back injuries but he 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
acknowledged claimant did joke about it a few times.  Mr. 
 
Conner acknowledged that he knew claimant had a back injury 
 
that required surgery prior to his hiring him and further 
 
indicated that claimant did say he was having back pain from 
 
the beginning of his employment with Oasis to the last day.
 
         
 
     Defendant Oasis was going to call Randy and Ron Benesh 
 
to testify but in the interest of time and the nature of 
 
their testimony, the attorneys related that they would 
 
testify they have no recollection of being told of a 
 
September 8, 1992 injury by the claimant.
 
         
 
     William Arnold was subpoened to testify.  He works for 
 
Paulson Boot and Shoe Repair and has known claimant 27 years 
 
and considers him his best friend at the time of the alleged 
 
injury and to the present.  He related that he and claimant 
 
played basketball, washed cars and did other things and that 
 
claimant cannot do those things now.  He indicated the last 
 
time they played basketball was three years ago and before 
 
that they played every Sunday with friends.  He said they 
 
have played no basketball since the first surgery and he has 
 
asked claimant to play but claimant has refused because of 
 
his back surgery.  He said that they used to pull car motors 
 
and transmissions and the last time he did that with 
 
claimant was three years ago before his first operation.  He 
 
said claimant could never resume his former activiites after 
 
his first surgery.
 
         
 
     James W. Turner, M.D., an orthopedic surgeon, testified 
 
through his deposition on October 28, 1993. (Jt. Ex. 13)  He 
 
first saw claimant on March 6, 1991, at which time claimant 
 
contends he was lifting carpet and experienced a sudden 
 
discomfort in his back.  The doctor described his treatment 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
pursuant to that injury and indicated that on April 26, 
 
1991, he performed a partial hemilaminectomy, a removal of 
 
disc, extruded disc fragment at L5-S1, very mini, very small 
 
laminotomy at L4-5, which was to remove a portion of the 
 
ligament, examine the disc, with no disc being removed.  
 
Eventually, he opined a 5 percent permanent partial 
 
impairment as a result of that February 20, 1991 work 
 
injury.  He had given claimant an unconditional lease on 
 
October 2, 1991.
 
         
 
     The doctor indicated that he saw claimant on January 
 
22, 1992, as claimant had tried to lift a large roll of 
 
carpet and felt a popping sensation in his back.  He said 
 
that claimant was able to return to work on February 6, 
 
1992.  He felt that 
 
injury represented a soft tissue-type sprain or a strain, 
 
possibly.  He indicated claimant's permanent impairment rate 
 
was still 5 percent.
 
         
 
     The doctor's records then show he saw claimant on 
 
September 9, 1992, at which time claimant indicated that he 
 
was lifting large molds and again felt a popping sensation 
 
in his back.  The doctor testified that he did not feel that 
 
claimant sustained any real major reinjury.
 
         
 
     On January 21, 1993, he saw claimant again at which 
 
time the claimant indicated he was shoveling snow and had a 
 
flare-up of his back with marked increase in left and right 
 
leg pain.  He described the various tests he put claimant 
 
through and noticed the large right-sided disc herniation at 
 
L5-S1 impinging on the right S1 nerve root which was a 
 
herniation of the same level he was operated on before.  The 
 
doctor opined that claimant's January 21, 1993 snow 
 
         
 

 
         
 
 
 
 
 
 
 
shoveling incident precipitated claimant's herniation.  The 
 
claimant then had surgery shortly thereafter and was 
 
released to return to work on March 3, 1993 with a caution 
 
against significant lifting and bending for at least another 
 
month.
 
         
 
     The doctor indicated that after the second surgery 
 
claimant's impairment would go to approximately 12 percent 
 
but he did not understand that there was an issue of 
 
permanency pending because he considered this increased 
 
permanency was related to claimant's snow shoveling 
 
incident.  He still opined that claimant had a 5 percent 
 
permanent impairment from his prior February 20, 1991 
 
injury.
 
         
 
     The doctor acknowledged that once you have a disc 
 
herniation laminectomy you have a weakened disc and one is 
 
at an increased risk.
 
         
 
     The doctor was questioned on cross-examination as to 
 
the use of the AMA Guides To The Evaluation of Permanent 
 
Impairment versus the guide he used.  The doctor came up 
 
with 5 percent and did acknowledge that if using the 
 
particular table of the Guides, one could come up with 8 
 
percent.  The doctor still stood by his 5 percent and 
 
indicated that there are no normative standards for the 
 
Guides on range of motion and that those same statements of 
 
range of motion in the Guides apply to people regardless how 
 
different their stature, weight, age, and condition is.  The 
 
doctor felt that to use those guides as a range of motion 
 
without normative guides as to age, body and body habitus, 
 
it is felt by many people not to be an approrpriate use in 
 
the rating.  This testimony of the doctor is again an 
 
         
 

 
         
 
 
 
 
 
 
 
example of the problems the medical profession has with the 
 
Guides in the use, how to use them, how they interpret them 
 
and, frankly, how deficient they are when they are solely 
 
used as a guide.  Nonetheless, the doctor stood by his 5 
 
percent. (Jt. Ex. 13, pp. 17-29)
 
         
 
     Joint exhibit 2, page 8, is a March 6, 1992 letter of 
 
Dr. Turner in which he indicated that he felt claimant 
 
reached his pre-aggravation status and made no change in his 
 
disability at that time.  The undersigned understands when 
 
the doctor used the word disability he means impairment.  
 
Per his deposition the doctor felt that claimant's 5 percent 
 
permanent impairment from his February 20, 1991 injury and 
 
subsequent surgery remains the same through the second 
 
injury of January 22, 1992, as well through the alleged 
 
September 8, 1992 injury.
 
         
 
     Page 6 of joint exhibit 3 is the April 26, 1991 
 
operative report regarding claimant's first surgery pursuant 
 
to his February 20, 1991 work injury.  Page 9 of joint 
 
exhibit 3 is the January 26, 1993 operative procedure 
 
performed pursuant to claimant's snow shoveling incident on 
 
or around January 10, 1993.
 
         
 
     Joint exhibit 5 is the record of Dr. Neiman on January 
 
12, 1994, in which he opined claimant had a 16.5 permanent 
 
impairment to his body as a whole as a result of claimant's 
 
February 20, 1991 injury.  There is nothing mentioned of any 
 
snow shoveling incident in 1993.
 
         
 
     The overwhelming weight of medical evidence in this 
 
case shows that claimant incurred a work injury on February 
 
20, 1991, at which time he incurred a permanent impairment.  
 
         
 

 
         
 
 
 
 
 
 
 
     There are two different permanent impairment ratings in the 
 
evidence but it is obvious Dr. Neiman's permanent impairment 
 
rating made in 1994 regarding a 1991 injury had an 
 
incomplete history.  It does not appear he knew anything 
 
about the snow shoveling incident that happened 
 
approximately one month or less prior to his impairment 
 
rating.
 
         
 
     Claimant had a surgery to his back and it is undisputed 
 
that a surgery to the back can leave one at increased risk 
 
as to future injuries in the same area due to the weakened 
 
back situation.  There is no dispute that claimant was 
 
injured on February 20, 1991.  Although claimant now is 
 
making more money, for a different employer, than he was in 
 
1991, it is very little more and if adjusted for inflation 
 
would probably be quite similar.  The fact is claimant has a 
 
back condition that causes him a loss of earning capacity in 
 
the work place.  Claimant's work involves using his back, 
 
bending and twisting.  Although Dr. Turner apparently does 
 
not like to put specific weight restrictions on an 
 
individual but likes to use the terminology "what is 
 
reasonable" or "what one thinks one can lift," it is obvious 
 
claimant is restricted from excessive bending and lifting.  
 
It is not uncommon for some doctors to attempt to motivate 
 
an injured worker by not putting on some specific weight 
 
limits so that one can try to lift certain weights and not 
 
be restricted by some arbitrary weight amount.  It is 
 
obvious Dr. Turner feels that one knows their own body and 
 
they know their own limitations.
 
         
 
     One of the issues regarding the 1991 injury is whether 
 
the time claimant was off work on January 21, 1993 through 
 
March 3, 1993, was causally related to his 1991 injury.  The 
 
         
 

 
         
 
 
 
 
 
 
 
evidence is clear that this period was incurred as a result 
 
of claimant's second surgery which occurred after claimant's 
 
snow shoveling incident on January 10, 1993.  Also, it is 
 
undisputed that the medical that has been incurred was 
 
incurred from the second surgery and treatment of claimant 
 
pursuant to the January 10, 1993 snow shoveling incident.
 
         
 
     The undersigned finds that claimant incurred an injury 
 
on February 20, 1991, that left him with a permanent 
 
impairment and general restrictions.
 
         
 
     Taking into consideration all those factors in trying 
 
to determine one's industrial disability, including but not 
 
limited to claimant's pre and post-injury work history, 
 
medical history, age, intelligence, vocation, severity of 
 
the injury, healing period, motivation, and impairment, the 
 
undersigned finds that claimant has incurred a 20 percent 
 
industrial disability as a result of his February 20, 1991 
 
work injury.
 
         
 
     The undersigned further finds that any medical that is 
 
connected with said injury has already been paid by 
 
defendants.  The defendants are not responsible for any more 
 
medical regarding that particular injury.  Also, claimant 
 
has no additional healing period that is connected with that 
 
injury and that any healing period he had has been already 
 
paid.  To be more specific, the healing period claimant is 
 
asking for beginning January 21, 1993 through March 3, 1993 
 
is not causally connected to claimant's February 20, 1991 
 
injury.
 
         
 
     As to the January 22, 1992 alleged injury, file number 
 
1007645, the undersigned finds that the greater weight of 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
medical evidence indicates that claimant did not incur any 
 
permanent disability but only incurred a temporary 
 
aggravation of his condition that resulted from his February 
 
20, 1991 work injury, and that claimant was off work 
 
temporarily for approximately 2.37 weeks beginning January 
 
22, 1992, for which he has been paid and that claimant had 
 
no further healing period in connection with that injury.  
 
Claimant had no increased permanent impairment and 
 
claimant's condition at the time of that injury and 
 
subsequent to that injury after the short healing period was 
 
the same and the result of claimant's February 20, 1991 
 
injury.
 
         
 
     The undersigned therefore finds that claimant takes 
 
nothing further from his alleged January 22, 1992 injury, 
 
and that there is no causal connection to any healing period 
 
in 1993 as claimed by the claimant.  There is no increase in 
 
industrial disability.
 
         
 
     The parties had agreed that the medical bills that they 
 
are seeking are all after January 10, 1993, and, therefore, 
 
none of said bills are to be paid by the defendants as to 
 
this alleged January 22, 1992 injury.  If there are any 
 
prescription drugs outstanding in reference to this 
 
particular date then they are payable by defendants.
 
         
 
     It is therefore found that claimant is entitled to no 
 
further benefits as a result of his January 22, 1992 injury, 
 
and that he has been paid in full for the 2.429 weeks 
 
temporary total disability.
 
         
 
     As to the alleged September 8, 1992 injury, file number 
 
1037274, the undersigned finds that there was a temporary 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
aggravation of claimant's medical and physical status 
 
resulting from his February 20, 1991 injury, that claimant 
 
incurred no healing period or any increased impairment or 
 
industrial disability as a result of any September 8, 1992 
 
work injury.  The greater weight of medical evidence clearly 
 
shows that any increase in claimant's impairment or any 
 
increased problems claimant has are resulting from a January 
 
10, 1993 snow shoveling incident and/or his lifting of an 
 
air conditioner in the latter part of 1992.  Although 
 
claimant contends that he was joking as to the air 
 
conditioning incident, matters of this kind are of no joking 
 
consequences, particularly when claimant is making a claim 
 
as herein and with the medical evidence and history he has 
 
had.  As indicated earlier, Dr. Neiman obviously did not 
 
have a full history on claimant.  The undersigned finds that 
 
claimant did not incur any increase in impairment, any 
 
additional medical bills or any increase in industrial 
 
disability as a result of any alleged September 8, 1992 work 
 
injury.  Claimant's added problems other than his permanent 
 
impairment he had from his February 20, 1991 injury and his 
 
industrial disability as previously found herein resulting 
 
from his February 20, 1991 work injury are the result of 
 
claimant's snow shoveling incident.
 
         
 
     Therefore, the undersigned finds that claimant takes 
 
nothing from this September 8, 1992 alleged work injury 
 
which was no more than a little temporary aggravation of a 
 
prior injury resulting in no further injury or impairment or 
 
entitlement to additional benefits.
 
         
 
     The undersigned therefore finds that claimant is not 
 
entitled to any healing period in regard to any of the 
 
alleged injuries or file numbers for ther period of January 
 
         
 

 
         
 
 
 
 
 
 
 
21, 1993 through March 3, 1993, nor are the defendants 
 
liable for any of the medical bills at issue herein.  The 
 
only exception being any drug prescripion 
 
bills that occurred prior to January 10, 1993 that remain 
 
unpaid and are obviously related to the respective dates of 
 
the prior injuries.  The parties did not separate their 
 
particular contention as to what prescription drugs they 
 
felt may have been specifically related to any particular 
 
injury.  The undersigned believes they can determine that 
 
from the nature of this decision.
 
         
 
     It would appear from joint exhibit 7 that all the bills 
 
prior to January 10, 1993, which would involve pain or 
 
muscle relaxer pills, would be payable by defendant John's 
 
Floor Covering and West Bend Insurance Company.  On joint 
 
exhibit 7 there is reference to antibiotics or penicillan 
 
and the undersigned does not see how those are applicable to 
 
any of the injuries herein.  Therefore, those would not be 
 
part of the drug bills payable by defendants.
 
         
 
     In summary, the defendants Oasis Manufacturing Company 
 
and State Farm Insurance Company are not responsible for 
 
payment of anything under this decision.  They are free from 
 
any liability as to any of the three cases herein.
 
         
 
                     CONCLUSIONS OF LAW
 
         
 
     The claimant has the burden of proving by a 
 
preponderance of the evidence that the alleged injury 
 
actually occurred and that it arose out of and in the course 
 
of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
         
 

 
         
 
 
 
 
 
 
 
the cause or source of the injury.  The words "in the course 
 
of" refer to the time, place and circumstances of the 
 
injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
         
 
     The claimant has the burden of proving by a 
 
preponderance of the evidence that the injury is a proximate 
 
cause of the disability on which the claim is based.  A 
 
cause is proximate if it is a substantial factor in bringing 
 
about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal 
 
connection is probable rather than merely possible.  
 
         
 
     Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
     1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
     (Iowa 1974).
 
         
 
     The question of causal connection is essentially within 
 
the domain of expert testimony.  The expert medical evidence 
 
must be considered with all other evidence introduced 
 
bearing on the causal connection between the injury and the 
 
disability.  The weight to be given to any expert opinion is 
 
determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as 
 
other surrounding circumstances.  The expert opinion may be 
 
accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
     Since claimant has an impairment to the body as a 
 
whole, an industrial disability has been sustained.  
 
Industrial disability was defined in Diederich v. Tri-City 
 
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
         
 

 
         
 
 
 
 
 
 
 
is therefore plain that the legislature intended the term 
 
'disability' to mean 'industrial disability' or loss of 
 
earning capacity and not a mere 'functional disability' to 
 
be computed in the terms of percentages of the total 
 
physical and mental ability of a normal man."
 
         
 
     Functional impairment is an element to be considered in 
 
determining industrial disability which is the reduction of 
 
earning capacity, but consideration must also be given to 
 
the injured employee's age, education, qualifications, 
 
experience, motivation, loss of earnings, severity and situs 
 
of the injury, work restrictions, inability to engage in 
 
employment for which the employee is fitted and the 
 
employer's offer of work or failure to so offer.  Olson v. 
 
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
(1961).
 
         
 
     Compensation for permanent partial disability shall 
 
begin at the termination of the healing period.  
 
Compensation shall be paid in relation to 500 weeks as the 
 
disability bears to the body as a whole.  Section 85.34.
 
         
 
     It is further concluded that:
 
         
 
     As to the February 20, 1991 work injury (file number 
 
977189):  
 
     
 
     Claimant incurred a 20 percent industrial 
 
     disability.
 
         
 
     As to the January 22, 1992 work injury (file number 
 
1007645):  
 
 
 
     Claimant's condition from his February 20, 1991 
 
     injury was temporarily aggravated and claimant 
 
     incurred 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
2.429 weeks of temporary total disability which has been 
 
paid and claimant incurred no further impairment or 
 
industrial disability.  Claimant takes nothing further from 
 
this case.
 
         
 
     As to the September 8, 1992 alleged injury (file number 
 
1037274):  
 
 
 
     Claimant takes nothing from this alleged injury.  
 
     Claimant merely temporarily aggravated his overall 
 
     physical condition resulting from his February 20, 1991 
 
     injury, and did not incur any additional impairment, 
 
     industrial disability or temporary total disability.  
 
     Claimant therefore takes nothing further from that 
 
     proceeding.
 
         
 
     That any increased impairment or disability claimant 
 
     may have is the result of events or nonwork injuries 
 
     claimant incurred, one being but not necessary limited 
 
     to the January 1993 snow shoveling incident.
 
         
 
     The issue of notice is moot in light of this decision.
 
         
 
                  
 
         
 
                             ORDER
 
         
 
                    
 
         
 
     THEREFORE, it is ordered:
 
         
 
     As to the February 20, 1991 injury (file number 
 
977189):
 
         
 
     That claimant is entitled to one hundred (100) weeks of 
 
     permanent partial disability at the weekly rate of one 
 
     hundred sixty-three and 99/00 dollars ($163.99) beginning 
 
     at the end of claimant's healing period (there is no 
 
     record as to when that ended as that wasn't an issue).
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
 
 
     That defendants John's Floor Covering and West Bend 
 
     Mutual Insurance Company shall pay the accrued weekly 
 
     benefits in a lump sum and shall receive credit against 
 
     the award for weekly benefits previously paid.  
 
     Defendants previously paid twenty-five (25) weeks of 
 
     permanent partial disability at the rate of one hundred 
 
     sixty-three and 99/00 dollars ($163.99).
 
         
 
     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 an activity report upon 
 
     payment of this award as required by this agency, 
 
     pursuant to rule 343 IAC 3.1.
 
         
 
     As to the January 22, 1992 injury (file number 
 
1007645):
 
         
 
     That claimant takes nothing further from this 
 
     proceedings.
 
         
 
     That defendants shall pay the costs of this action, 
 
     pursuant to rule 343 IAC 4.33.
 
         
 
     As to the September 8, 1992 injury (file number 
 
1037274):
 
         
 
         That claimant takes nothing from these proceedings.
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         That defendants shall pay the costs of this action, 
 
         pursuant to rule 343 IAC 4.33.
 
         
 
                    
 
         
 
                    Signed and filed this ____ day of November, 1994.
 
         
 
                  
 
         
 
                  
 
         
 
                                ______________________________
 
                                BERNARD J. O'MALLEY
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
                  
 
         
 
Copies to:
 
         
 
Mr Thomas J Currie
 
Attorney at Law
 
3401 Williams Blvd SW
 
P O Box 998
 
Cedar Rapids IA 52406-0998
 
         
 
Ms Vicki L Seeck
 
Attorney at Law
 
600 Union Arcade Bldg
 
111 E Third St
 
Davenport IA 52801-1596
 
         
 
Mr James E Shipman
 
Attorney at Law
 
115 3rd St  SE  Ste 1200
 
Cedar Rapids IA 52401
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                   5-1108; 5-1803; 5-2500
 
                                   Filed November 11, 1994
 
                                   Bernard J. O'Malley
 
         
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
GEORGE HOBSON,  
 
         
 
     Claimant, 
 
         
 
vs.        
 
         
 
JOHN'S FLOOR COVERING,           File Nos.      977189
 
                                               1007645
 
                                               1037274
 
     Employer, 
 
         
 
and        
 
         
 
WEST BEND MUTUAL INSURANCE,    
 
 
 
     Insurance Carrier,  
 
         
 
                                     A R B I T R A T I O N
 
         
 
                                        D E C I S I O N
 
         
 
GEORG HOBSON,   
 
         
 
     Claimant, 
 
         
 
and        
 
         
 
                        
 
         
 

 
         
 
 
 
 
 
 
 
OASIS MANUFACTURING, 
 
         
 
     Employer, 
 
         
 
and        
 
         
 
STATE FARM INSURANCE CO., 
 
         
 
     Insurance Carrier,  
 
     Defendants,    
 
---------------------------------------------------------         
 
5-1108; 5-1803; 5-2500
 
         
 
Found claimant incurred a 20% industrial disability  as a 
 
result of a February 20, 1991 work injury.
 
         
 
                  
 
5-1108; 5-2500
 
Found claimant did not incur any increased industrial 
 
disability as a result of his January 22, 1992 alleged work 
 
injury.
 
         
 
                  
 
5-1108; 5-2500
 
Found claimant did not incur an injury as a result of an 
 
alleged September 8, 1992 work injury but that any increased 
 
disability was the result of a snow shoveling incident 
 
and/or an air conditioning lifting incident.  Defendants 
 
were not responsible for any medical bills.
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DON BURNS,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 977195
 
            BIL MAR FOODS,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Don 
 
            Burns against Bil Mar Foods and its insurance carrier The 
 
            Travelers Insurance Company based upon an alleged injury of 
 
            September 28, 1989.  Don seeks compensation for temporary 
 
            total disability or healing period for the period running 
 
            from January 6 through April 1990.  He seeks compensation 
 
            for permanent partial disability and payment of medical 
 
            expenses.  He also seeks to recover the costs of the 
 
            proceeding.  It was stipulated that the correct rate of 
 
            compensation is $207.49 per week.  
 
            
 
                 The case was heard at Storm Lake, Iowa, on November 5, 
 
            1992.  The evidence in the proceeding consists of testimony 
 
            from Don Burns, Dana Evaro, Lynann Burns, and Dale Carver.  
 
            The record also contains claimant's exhibits A through E and 
 
            defendants' exhibits 1 through 24.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Don Burns is a 24-year-old married man who lives at 
 
            Arnolds Park, Iowa.  He commenced employment at Bil Mar 
 
            Foods in September 1988.  In September 1989, he developed 
 
            complaints involving his right hand and was treated by James 
 
            A. Gamache, M.D.  The treatment was conservative consisting 
 
            of medications and time off work.  He was released to resume 
 
            work but developed recurrence of his symptoms.  The scenario 
 
            of resolution and recurrence occurred on a number of 
 
            occasions.  Eventually, after the symptoms recurred on 
 
            January 6, 1990, claimant's employment was terminated.  
 
            Claimant had been released to full duty effective January 3, 
 
            1990 (defendants' exhibit 8).  He returned to Dr. Gamache on 
 
            February 28, 1990, at which time Dr. Gamache noted that he 
 
            had recurrent tendonitis.  Claimant continued to take 
 
            medication and remain on decreased activity until seen by 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            orthopedic surgeon Rick Wilkerson, D.O., on March 5, 1990 
 
            (ex. A, page 10).  
 
            
 
                 When claimant was seen by Dr. Wilkerson on March 5, 
 
            1990, Dr. Wilkerson formed the impression that claimant had 
 
            vague wrist and forearm pain of unknown etiology.  He 
 
            prescribed a wrist splint and continued medications.  He 
 
            found no objective evidence of neurologic or joint pathology 
 
            or tendonitis.  EMG tests were normal.  He released claimant 
 
            to full activity and full work status (def. ex. 15).  
 
            
 
                 Claimant was seen again by Dr. Gamache on August 9, 
 
            1990.  At that time his assessment was that claimant 
 
            continued to have wrist discomfort of unclear etiology, that 
 
            it was not classic for carpal tunnel syndrome and that his 
 
            course had not been characteristic for an overuse syndrome 
 
            or tendonitis.  Further conservative treatment was 
 
            continued.  
 
            
 
                 On September 10, 1990, claimant was examined by Joan M. 
 
            Nellis, M.D., who found the results of the examination to be 
 
            normal.  No particular abnormality was identified (ex. A, 
 
            pp. 10-12).
 
            
 
                 Claimant has been evaluated by Thomas L. DeBartolo, 
 
            M.D., an orthopedic surgeon, who is known to have a 
 
            subspecialty in hand and upper extremity surgery.  He felt 
 
            that, according to the history he received, claimant had 
 
            developed tendonitis but it had subsequently improved.  He 
 
            found no measurable permanent impairment secondary to 
 
            claimant's employment (ex. 16).
 
            
 
                 Claimant was evaluated by orthopedic surgeon L.T. 
 
            Donovan, D.O., on October 7, 1991.  Dr. Donovan noticed 
 
            claimant's congenitally short ulna, a condition which had 
 
            also been noted by Dr. DeBartolo.  Dr. Donovan, in exhibit 
 
            23, provided a disability rating of 0 percent.  
 
            Subsequently, in a report dated November 12, 1990, Dr. 
 
            Donovan provided an impairment rating of 1 percent of the 
 
            hand which he stated was equivalent to 1 percent of the 
 
            upper extremity which in turn he found equivalent to 1 
 
            percent of the whole person (ex. 24).  He reported that 
 
            claimant had tendonitis-like pain which had been seen by Dr. 
 
            Gamache and that it appeared to have been precipitated by 
 
            claimant's work at Bil Mar Foods.  He also found a ganglion 
 
            cyst which he stated can arise without any particular cause 
 
            or which can arise secondary to repetitive use.  He is the 
 
            only one to have identified a ganglion cyst.  He reported 
 
            that there was a possibility of Keinbock's disease 
 
            developing as a result of repetitive trauma superimposed on 
 
            the congenitally short ulna condition but that claimant's 
 
            pain pattern was not consistent with Keinbock's disease.  He 
 
            felt that claimant had no significant impairment.  He did 
 
            not state that the 1 percent impairment rating had been 
 
            caused by claimant's work. 
 
            
 
                 Claimant's complaints have little, if anything in the 
 
            way of objective corroboration.  The reliability of the 
 
            claimant's testimony and his credibility is not well 
 
            established by the evidence in this case.  The case is one 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            which presents complaints of pain which are not strongly 
 
            corroborated by objective medical findings.  The only 
 
            objective medical finding of any abnormality is a congenital 
 
            abnormality involving the claimant's ulna.  
 
            
 
                 It is found that Don Burns did develop some type of an 
 
            overuse syndrome or tendonitis as a result of his employment 
 
            at Bil Mar Foods in late 1989 but that his testimony is not 
 
            sufficiently reliable in order to base a finding of 
 
            permanent partial disability upon his uncorroborated 
 
            complaints.  His testimony has been impeached by his felony 
 
            conviction.  While he may very well have complaints 
 
            involving his left hand, the record fails to show 
 
            substantial corroboration for his claim that the work at Bil 
 
            Mar Foods caused any disability affecting his left hand or 
 
            arm.    
 
            
 
                 It is found that the work activities on January 6, 
 
            1990, did re-aggravate the tendonitis or overuse condition.  
 
            Dr. Gamache corroborated that claimant should be off work 
 
            when he was seen on February 28, 1990.  By March 5, 1990, 
 
            claimant was released to full activity by Dr. Wilkerson.  It 
 
            is found that the assessment made by Dr. Gamache and Dr. 
 
            Wilkerson is correct.  Don is found to have been temporarily 
 
            totally disabled from January 6, 1990 through March 5, 1990, 
 
            but that he sustained no permanent disability.
 
            
 
                 Claimant's exhibit C sets forth claimed medical 
 
            expenses.  The charges in the amount of $69 from Family 
 
            Health Center of Storm Lake were incurred with Dr. Nellis on 
 
            September 10, 1990.  A charge of $109.20 from Iowa Lakes 
 
            Orthopedics, P.C., was for an evaluation conducted in May 
 
            1991 by Dr. Donovan.  A charge of $110 from Dr. DeBartolo 
 
            was for his evaluation and report.  The charges from Dr. 
 
            Kinnard are for his treatment.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 It is concluded that Don Burns has carried the burden 
 
            of proving that he sustained an injury which arose out of 
 
            and in the course of employment with Bil Mar Foods on or 
 
            about September 28, 1989.  There could be some argument made 
 
            regarding whether a different date should be used as the 
 
            date of injury but it provides no difference in the result 
 
            of this case.
 
            
 
                 It has previously been determined that the overuse 
 
            syndrome or tendonitis condition which constitutes the 
 
            injury was a temporary condition which resolved by the time 
 
            claimant was seen by Dr. Wilkerson on March 5, 1990, and he 
 
            was released to resume unrestricted work.  
 
            
 
                 It is therefore determined that claimant is entitled to 
 
            recover temporary total disability compensation in 
 
            accordance with section 85.33 for the period of time 
 
            commencing January 7, 1990 and running through March 5, 
 
            1990, a span of 8 2/7 weeks.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 Dr. Nellis was an employer-chosen physician.  
 
            Defendants are therefore responsible for payment of her 
 
            charges in the amount of $69.
 
            
 
                 Claimant also seeks to recover expenses incurred at 
 
            Iowa Lakes Orthopedics, Thomas DeBartolo, M.D., and James A. 
 
            Kinnard, D.C.  
 
            
 
                 The report from Dr. Nellis in essence states that 
 
            claimant has no permanent disability as a result of his 
 
            injury.  Claimant is therefore entitled under the provisions 
 
            of section 85.39 to an independent medical examination.
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (App. April 26, 
 
            1991).  Defendants' liability for claimant's injury must be 
 
            established before defendants are obligated to reimburse 
 
            claimant for independent medical examination.  McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 It is determined that the evaluation performed by 
 
            Thomas DeBartolo, M.D., constitutes an independent medical 
 
            examination within the meaning of section 85.39.  Claimant 
 
            is therefore entitled to recover the cost of that 
 
            examination, namely, $110.  
 
            
 
                 The treatment performed by Dr. Kinnard is found to not 
 
            have been proximately caused by the injury at Bil Mar Foods.  
 
            The passage of time is sufficiently great that, when 
 
            combined with intervening activities, the chain of causation 
 
            has broken.  The charges incurred at Iowa Lakes Orthopedics 
 
            were for another evaluation.  They were not treatment with 
 
            an authorized physician.  Defendants are therefore not 
 
            liable for the expenses of unauthorized treatment or for a 
 
            second independent medical examination.  
 
            
 
                                     ORDEREED
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Don Burns 
 
            eight and two-sevenths (8 2/7) weeks of compensation for 
 
            temporary total disability payable at the stipulated rate of 
 
            two hundred seven and 49/100 dollars ($207.49) per week 
 
            commencing January 7, 1990.  
 
            
 
                 It is further ordered that defendants pay claimant's 
 
            charges at Family Health Center of Storm Lake in the amount 
 
            of sixty-nine dollars ($69) and with Thomas DeBartolo, M.D., 
 
            in the amount of one hundred ten dollars ($110).  
 
            
 
                 It is further ordered that the weekly benefits awarded 
 
            in this decision are all accrued and past due and shall be 
 
            paid to claimant in a lump sum together with interest 
 
            pursuant to section 85.30.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1
 
            
 
                 Signed and filed this ____ day of March, 1993.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. David J. Stein
 
            Attorney at Law
 
            926 Okoboji Ave
 
            PO Box 537
 
            Milford, Iowa  51351
 
            
 
            Mr. Charles M. Patterson
 
            Attorney at Law
 
            701 Pierce St., STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                    51402.20 51402.40 52501 52502
 
                                    Filed March 16, 1993
 
                                    Michael G. Trier
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DON BURNS,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 977195
 
            BIL MAR FOODS, 
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            TRAVELERS INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51402.20 51402.40
 
            Claimant, whose credibility was impaired by a felony 
 
            conviction, was able to prove that he had sustained a 
 
            tendonitis/overuse type of injury.  He was not able to prove 
 
            that it produced any permanent disability.  Claimant awarded 
 
            8 2/7 weeks of temporary total disability.
 
            
 
            52501 52502
 
            Claimant sought to recover expenses for evaluations and 
 
            treatment which had not been authorized by the employer as 
 
            well as some unpaid charges with the employer-selected 
 
            physician.  Defendants held responsible for paying the 
 
            charges with the authorized physician.  Defendants were held 
 
            responsible for paying the costs of an evaluation by a 
 
            orthopedic specialist under the provisions of section 85.39.  
 
            Claimant's attempt to recover the cost of a second 
 
            orthopedic evaluation and chiropractic treatments was 
 
            denied.