Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GRACE NEIL,                   :
 
                                          :
 
                 Claimant,                :      File No. 756209
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            JOHN DEERE COMPONENT WORKS,   :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                              statement of the case
 
            
 
                 Claimant appealed from an arbitration decision denying 
 
            claimant benefits for the death of her husband on August 18, 
 
            1983.  The record on appeal consists of the arbitration 
 
            decision and joint exhibits A through L.  Both parties filed 
 
            briefs on appeal and claimant filed a reply brief.
 
            
 
                                      issue
 
            
 
                 The issue on appeal is whether claimant proved that 
 
            decedent's injury and subsequent death arose out of his 
 
            employment with defendant?
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision dated May 10, 1989 adequately 
 
            and accurately reflects the pertinent evidence and will not 
 
            be totally reiterated herein. 
 
            Decedent was seen by R. V. Corton, M.D., on August 12, 1983, 
 
            three days prior to decedent's return to work and six days 
 
            prior to his death.  Dr. Corton noted that decedent was 
 
            heavy, overweight and had a history of myocardial problems.  
 
            In addition, Dr. Corton noted that decedent looked several 
 
            years older than his stated age and may require further 
 
            protection.  (Joint exhibit A1)
 
            
 
                 The temperatures outside on the week of August 15th 
 
            were above normal and the area where claimant worked was not 
 
            air conditioned.  There were overhead blowers that 
 
            circulated air throughout the department and doors were 
 
            open.  Employees of the defendant testified that the 
 
            conditions in the plant were hotter than normal but not 
 
            unusual for August.
 
            
 
                 The evidence surrounding decedent's August 18, 1983 
 
            death shows that decedent experienced shortness of breath 
 
            when he walked from his daughter's car to the defendants' 
 
            gate on August 17, 1983.  Decedent's co-worker testified 
 
            that claimant went to his work station and sat down.  The 
 
            co-worker did not see the decedent do any work that day, 
 
            although claimant testified that decedent's shirt was soiled 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and it appeared that he had been working.  After a short 
 
            time, the co-worker went over to inquire about decedent's 
 
            health and decedent was instructed to go to an air 
 
            conditioned area and medical personnel were contacted.
 
            
 
                                  applicable law
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that Paul Neil received an injury on or about 
 
            August 17, 1983 which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            The injury must both arise out of and be in the course of 
 
            the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            "An injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while he is doing his work or something 
 
            incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 
 
            278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. 
 
            Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 
 
            352, 154 N.W.2d 128. 
 
            
 
                 The requirement that the injury or a death "arise out 
 
            of" the employment relates to the cause and origin of the 
 
            injury.  The "arising out of" requirement is satisfied by 
 
            showing a causal relationship between the employment and the 
 
            injury.  Sheerin v. Holing Co., 380 N.W.2d 415, 417 (Iowa 
 
            1986); McClure, 188 N.W.2d 283, 287.  For a cause to be 
 
            proximate, it must be a substantial factor in bringing about 
 
            the result, but it need not be the only cause.  Blacksmith 
 
            v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 The employer correctly states that the test to 
 
            determine whether an employee's injury arose out of his 
 
            employment is based on a causal connection between the 
 
            conditions under which work was performed and the resulting 
 
            injury.  Briar Cliff College v. Campolo, 360 N.W.2d 91, 94 
 
            (Iowa 1984).
 
            An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            An employee is not entitled to recover for the results of a 
 
            preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 
 
            613, 106 N.W.2d 591.  See also Barz v. Oler, 257 Iowa 508, 
 
            133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 
 
            Iowa 724, 254 N.W. 35 (1934).
 
            
 
                                     Analysis
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant bears the burden of proving that the 
 
            decedent's injury and subsequent death on August 18, 1983 
 
            arose out of his employment with the defendants.  There must 
 
            be a casual relationship between decedent's injury and 
 
            subsequent death and his employment.  
 
            
 
                 Claimant argues that she is entitled to death benefits 
 
            under the "positional or actual risk" doctrine.  In her 
 
            reply brief, claimant cites the decision of the court of 
 
            appeals Hanson v. Reichelt.  The supreme court has 
 
            subsequently decided Hanson and adopted "the actual risk 
 
            rule in workers' compensation cases involving injuries from 
 
            exposure to the elements."  Hanson v. Reichelt, 452 N.W.2d 
 
            164, 168 (Iowa 1990).  (emphasis added)  The court in Hanson 
 
            clearly limited its holding to cases involving exposure to 
 
            the elements.  Claimant's reliance upon Hanson is misplaced 
 
            as Hanson involved a death following heatstroke.
 
            
 
                 The court has laid out the appropriate analysis to 
 
            determine whether there is a work-related connection between 
 
            claimant's injury and subsequent death and his preexisting 
 
            heart condition to entitle claimant to compensation.  First, 
 
            claimant may prove that the "work ordinarily requires heavy 
 
            exertion which, superimposed on an already-defective heart, 
 
            aggravates or accelerates the condition, resulting in 
 
            compensable injury."  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903, 905 (Iowa 1974).  The court later established that "the 
 
            comparison is not with this employee's usual exertion in his 
 
            employment but with the exertions of normal nonemployment 
 
            life of this or any other person."  Campolo, 360 N.W.2d at 
 
            94.  In the alternative, claimant may prove an "unusually 
 
            strenuous employment exertion, imposed upon a pre-existing 
 
            diseased condition, results in a heart injury."  Sondag, 220 
 
            N.W.2d at 905.  Finally, claimant may prove that decedent 
 
            felt impelled to work after the onset of symptoms and the 
 
            physical and emotional stress of continuing to work was a 
 
            factor in worsening decedent's overall heart condition.  
 
            Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407, 410 
 
            (Iowa 1984).
 
            
 
                 First, claimant proves a compensable injury when it is 
 
            shown that an instance of unusually strenuous employment 
 
            exertion imposed on decedent's already fragile cardiac 
 
            system resulted in decedent's heart attack.  Decedent was 
 
            not under time constraints to complete a project and there 
 
            were no emergencies at the plant.  Decedent was placed on 
 
            special work status when he returned to work on August 15, 
 
            1983 to allow decedent to adjust to work after his long 
 
            absence and so decedent would not feel pressure to over 
 
            work.
 
            
 
                 On August 17, 1983, the decedent's co-worker testified 
 
            that he did not see decedent perform any work in the hour 
 
            that he was at his job station.  Decedent's supervisor did 
 
            not find a log sheet of decedent's activities on the morning 
 
            of August 17, 1983.  Claimant testified that the decedent's 
 
            shirt was dirty indicating that he may have performed some 
 
            work the morning of August 17, 1989.  Even if decedent 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            performed some work, there is no evidence that the work was 
 
            unusually strenuous.  Claimant failed to prove that an 
 
            unusually strenuous work activity caused decedent's injury 
 
            and subsequent death.
 
            
 
                 In determining whether decedent's work required heavy 
 
            exertion on his already fragile cardiac system it is 
 
            important to know whether the employment exertion was 
 
            greater than that of nonemployment life.  The court cited 1A 
 
            Larson Workmen's Compensation Law section 38.83, page 7-172 
 
            "that the employment must contribute something substantial 
 
            to increase risk."  Sondag, 220 N.W.2d at 905. (emphasis 
 
            added)
 
            
 
                 The variance between the exertions of normal, 
 
                 nonemployment life of the population is 
 
                 tremendous.  It ranges from individuals who 
 
                 perform nothing more strenuous than slowly 
 
                 ascending or descending one or two steps to those 
 
                 individuals who engage in activities such as 
 
                 marathon running.  What is normal for a homeowner 
 
                 who mows the lawn and shovels snow may be 
 
                 strenuous in comparison to the nonemployment 
 
                 exertions made by person who resides in an 
 
                 apartment.
 
            
 
            Alexander v. Great Plains Bag Corporation, Appeal Decision, 
 
            October 17, 1989.
 
            
 
                 While the testimony of defendant's employees clearly 
 
            establishes that the conditions in the plant prior to 
 
            decedent's death were hot, the question is whether the heat 
 
            and humidity at defendant's plant were a substantial factor 
 
            in causing decedent's death.  Decedent started work at 7:00 
 
            a.m. and medical personnel responded to a call for help at 
 
            8:05 a.m.  Decedent was taken to the hospital at 8:35 a.m.  
 
            The temperatures between 6:00 a.m. and 9:00 a.m. was between 
 
            78 and 82 degrees.  (Joint exhibits J1-J4)  There was 
 
            evidence that a department where car batteries were charged 
 
            and a welding area were located behind claimant's bay.  
 
            However, there is no evidence that these areas substantially 
 
            increased the temperatures in the area. 
 
            
 
                 David Kabel, M.D., testified on behalf of claimant that 
 
            the extreme heat and humidity that decedent experienced 
 
            while at work aggravated decedent's preexisting heart 
 
            condition.  However, Dr. Kabel testified that if claimant 
 
            merely remained outside in the heat and the humidity that he 
 
            could have aggravated his preexisting heart condition.  At 
 
            his deposition Dr. Kabel testified in response to questions 
 
            posed by defendant's attorney:
 
            
 
                 Q.  So it's not the lifting that has anything, 
 
                 it's not that work has anything to do with it?
 
            
 
                 A.  It's any kind of lifting, even of small 
 
                 weights given the right conditions can be 
 
                 potentially detrimental.
 
            
 
                 Q.  That same statement would hold true at home, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 any place?
 
            
 
                 A.  Yes, that's right.
 
            
 
                 Q.  So if his activity at the job were no 
 
                 different than normal activity people engage in 
 
                 off work, off the job, your opinion wouldn't 
 
                 change?  It was that activity and not related 
 
                 specifically to the job, would it?
 
            
 
                 A.  Yes, that would be correct.
 
            
 
                 ....
 
            
 
                 Q.  Had he done anything substantial at home it 
 
                 would have happened the same?
 
            
 
                 A.  Possibly.
 
            
 
                 Q.  So then it would seem clear if he had a 
 
                 similar episode before he came to work that his 
 
                 work that day didn't cause it?
 
            
 
                 A.  Yes, that would be a reasonable assumption.
 
            
 
            (Deposition David Kabel, M.D., pages 14, 22-23.)
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            At the arbitration hearing, Dr. Kabel testified:
 
            
 
                 Q.  So the fact that it may have been hotter 
 
                 indoors than out or the very same temperature, 
 
                 that does not change your opinion, does it?
 
            
 
                 A.  No.
 
            
 
                 Q.  It was still the heat and the humidity that 
 
                 led to the cause of his death?
 
            
 
                 A.  Yes.
 
            
 
            (Arbitration earing p. 202.)
 
            
 
                 The autopsy report determined that the cause of 
 
            decedent's death was attributable to acute myocardial 
 
            infarction, secondary to severe atherosclerosis of the left 
 
            anterior descending coronary artery.  (Joint exhibit D2.)  
 
            Decedent's arteries were 90 percent blocked by a build up of 
 
            cholesterol deposits.  "Once coronary artery disease has 
 
            become sufficiently severe, a death that results from 
 
            relatively minor exertion is not compensable since the 
 
            exertion is no greater than the exertion of normal, 
 
            nonemployment life."  Alexander v. Great Plains Bag 
 
            Corporation, Appeal Decision, October 17, 1989.  
 
            
 
                 Finally, claimant attempted to present evidence that 
 
            decedent continued to work after the onset of his symptoms 
 
            and this work aggravated his fragile cardiac condition.  
 
            Decedent's supervisor at the time of his death testified 
 
            that decedent would overwork himself on occasions.  In 
 
            addition, there was evidence that decedent returned to work 
 
            in order to maintain his current benefit package.  However, 
 
            unlike the claimant in Sumner, decedent was not impelled to 
 
            work.  Decedent was placed on other work by his supervisor 
 
            so he would not feel the pressure to over work.  Claimant 
 
            failed to prove that decedent continued to work after the 
 
            onset of his symptoms and that the work aggravated his 
 
            fragile cardiac system
 
            
 
                 The conditions at the plant on August 17, 1983 were not 
 
            ideal.  The bay where decedent worked was hot and not air 
 
            conditioned.  Yet, there is nothing in the record that the 
 
            work  conditions or decedent's work on August 17, 1983 
 
            subjected decedent to a greater risk of injury or harm from 
 
            his preexisting condition than would have been found in 
 
            normal, nonemployment life.  Claimant failed to prove that 
 
            the injury and subsequent death of her husband arose out of 
 
            his employment with defendants.
 
            
 
                                 findings of fact
 
            
 
                 1.  On August 15, 1983, decedent's heart was diseased 
 
            with severe atherosclerosis.
 
            
 
                 2.  On August 17, 1983, decedent suffered a myocardial 
 
            infarction.
 
            
 
                 3.  The exertion level which produced that myocardial 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            infarction is not shown to have exceeded the exertions of 
 
            normal nonemployment life of decedent or of any other 
 
            person.
 
            
 
                 4.  The evidence fails to demonstrate that decedent's 
 
            work ordinarily required heavy exertions which aggravated, 
 
            or accelerated, claimant's preexisting heart condition.
 
            
 
                 5.  The evidence fails to demonstrate that decedent 
 
            engaged in any instance of unusually strenuous employment 
 
            excretion at or about the time of his attempt to return to 
 
            work in August 1983.  
 
            
 
                 6.  Decedent's myocardial condition was so fragile that 
 
            exertions which were within range of normal nonemployment 
 
            life were sufficient to produce a myocardial infarction 
 
            injury and death.
 
            
 
                 7.  The evidence fails to demonstrate that decedent was 
 
            compelled to continue work after the onset of symptoms.
 
            
 
                                conclusion of law
 
            
 
                 Claimant has failed to prove that decedent sustained an 
 
            injury and subsequent death on August 18, 1983  arose out of 
 
            his employment with the defendants.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from this proceeding.
 
            
 
                 That claimant pay the cost of this proceeding including 
 
            the costs of the transcription of the arbitration hearing.
 
            Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert C. Andres
 
            Attorney at Law
 
            First National Building, Sixth Floor
 
            P.O. Box 2634
 
            Waterloo, Iowa 50704-2634
 
            
 
            Mr. John W. Rathert
 
            Attorney at Law
 
            620 Lafayette Street
 
            P.O. Box 178
 
            Waterloo, Iowa 50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1108.30
 
                                          Filed August 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GRACE NEIL,                   :
 
                                          :
 
                 Claimant,                :      File No. 756209
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            JOHN DEERE COMPONENT WORKS,   :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            1108.1
 
            The Iowa Supreme Court has laid out the appropriate standard 
 
            to determine whether there is a work-related connection 
 
            between decedent's injury and subsequent death and his 
 
            preexisting heart condition.  Claimant's reliance upon 
 
            Hanson v. Reichelt, 452 N.W.2d 164, 168 (Iowa 1990) is 
 
            misplaced as Hanson invloved death following heatstroke as a 
 
            result of exposure to the elements.
 
            Claimant failed to proved that decedent's injury and 
 
            subsequent death arose out of the course of his employment 
 
            with the defendant.  While the conditions in defendant's 
 
            plant were not ideal, there is nothing in the record that 
 
            the work conditions or decedent's work on August 17, 1983 
 
            subjected decedent to a greater risk of injury or harm from 
 
            his preexisting condition than would have been found in 
 
            normal, nonemployment life.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GRACE NEIL,                                  File No. 756209
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         JOHN DEERE COMPONENT WORKS,                     F I L E D
 
         
 
              Employer,                                 MAY 10 1989
 
              Self-Insured,
 
              Defendant.                            INDUSTRIAL SERVICES
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Grace Neil 
 
         against John Deere Component Works, her husband's self-insured 
 
         employer.  The case was heard and fully submitted on July 20, 
 
         1988 at Waterloo, Iowa.  The evidence in the proceeding consists 
 
         of testimony from Grace Neil, Michelle Kettman, Michael Pierce, 
 
         Tom Petersen, Thomas Byrnes, Eliza Washington, David W. Kabel, 
 
         M.D., Barbara Lentz, Margaret Duffy, Harry Carson, Jr., Dean 
 
         Hansen, Mike Welch, Rodney Hennings, Patricia Tatum and Ray Paul 
 
         Jarrett. The record also contains jointly offered exhibits A 
 
         through L.
 
         
 
                                        ISSUES
 
         
 
              Grace Neil seeks death benefits under the provisions of Code 
 
         section 85.31(1) based upon the death of her husband, Paul K. 
 
         Neil, which occurred on August 18, 1983.  The specific issues to 
 
         be determined are whether Paul K. Neil sustained an injury which 
 
         arose out of and in the course of his employment on or about 
 
         August 17, 1983; whether any alleged injury proximately caused 
 
         Paul K. Neil's death which occurred on August 18, 1983; and, 
 
         determination of Grace Neil's entitlement to compensation under 
 
         Code section 85.31(1)(a) and a burial expense under Code section 
 
         85.28.
 
         
 
                                  SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.  The 
 
         statement of the case which is part of claimant's brief is a 
 
         reasonably accurate summarization of pertinent parts of the 
 
         record in this case.  It is adopted herein with some 
 
         modifications as deemed appropriate by the undersigned.
 
                                                
 
                                                         
 
         
 
              The claimant is the widow of Paul K. Neil.  At the time of 
 
         decedent's death, the couple had no minor children living in 
 
         their home.
 
         
 
              During his lifetime, Paul Neil neither smoked nor drank 
 
         alcoholic beverages.  The claimant did not know of Paul having 
 
         any history of hypertension or coronary artery disease.  She 
 
         recalls that the decedent had a single episode of angina (the 
 
         employer's records showed it to have occurred in 1971), but she 
 
         did not believe that it caused him to miss work, receive 
 
         treatment or take medication.  She felt the condition was 
 
         temporary and isolated and thereafter the condition of Paul's 
 
         heart was never of concern to her.  Regular exams with the 
 
         decedent's family physician never caused her to believe 
 
         otherwise.
 
         
 
              The decedent was off work from John Deere during the period 
 
         of August 1982 through August 1983, when he was released to 
 
         return to work starting August 15, 1983.  During this one-year 
 
         absence from work, the decedent had knee surgeries.
 
         
 
              The decedent reported to work on August 15, 16 and 17, 1983. 
 
         Each morning while at home, he appeared to be in normal health 
 
         according to family members.  However, fellow employees James 
 
         Eckhoff, Mike Pierce, Tom Petersen and Thomas Byrnes testified 
 
         that while at work, from check-in to check-out, the decedent 
 
         appeared to be tired, pale and quiet.  Upon returning home from 
 
         work on Monday and Tuesday afternoons, the decedent indicated 
 
         that he was worn out and that he had been short of breath at 
 
         work. While at home, though, the claimant never noticed this 
 
         symptom and Paul never again complained of it.  On the morning of 
 
         August 17, the decedent appeared to be normal and healthy to his 
 
         family members.  In fact, his daughter related that prior to 
 
         leaving for work he was on the floor playing with his grandchild.  
 
         She drove him to work shortly thereafter and stated that he was 
 
         in good health at the time she dropped him off at the plant.
 
         
 
              The environmental conditions at John Deere during the three 
 
         days the decedent worked were oppressive.  Numerous witnesses, 
 
         including the decedent's former foreman, testified that the plant 
 
         during these three days was hot, humid, devoid of air movement 
 
         and quite uncomfortable.
 
         
 
              Records from the National Climatic Data Center verify that 
 
         on August 15, the high temperature was 92 degrees and the average 
 
         was 79 degrees, which was 8 degrees above normal.  On August 16, 
 
         the high temperature was 100 degrees and the average was 85 
 
         degrees, 14 degrees above normal.  On August 17, the high 
 
         temperature was 95 degrees and the average was 83 degrees 
 
         (exhibit J).
 
         
 
              During the three days that the decedent worked his job was 
 
         that of a parts packer.  This involved taking parts from a tub 
 
         and putting them into a box pallet, which in turn required 
 
                                                
 
                                                         
 
         constant bending, twisting and lifting.  The parts lifted could 
 
         weigh anywhere from ounces up to 90 pounds.  The job also 
 
         involved banding pallet loads, which required bending, reaching, 
 
         stretching, and a lot of other general movement.
 
         
 
              On the morning of August 17, approximately one hour after 
 
         checking in, the claimant was seen leaning over a bin.  Because 
 
         of his condition, he was told to go to an air conditioned office, 
 
         while the medical department was notified.  Within the next 
 
         one-half hour, he was taken to a hospital where he died the 
 
         following morning.  The cause of death was acute myocardial 
 
         infarction secondary to severe atherosclerosis (exhibit D-2).
 
         
 
              The volume of work that Paul Neil performed does not appear 
 
         to have been what would be considered normal for the job. 
 
         According to James C. Eckhoff, a coemployee, Paul did very little 
 
         on August 15 and on August 16, he banded a few loads.  Eckhoff 
 
         stated that, while Paul did not do very much, he did all he was 
 
         able to do.  Eckhoff stated that, on the morning of Wednesday, 
 
         August 17, Paul had not done any actual work, to Eckhoff's 
 
         knowledge, prior to the time that he left his work station 
 
         (exhibit I, pages 9-19).
 
         
 
              Eliza Washington was supervising Paul Neil during the three 
 
         days that he returned to work in August, 1983.  Eliza agreed that 
 
         Paul did not appear to be in good health at any of the times when 
 
         she observed him.  She testified that Paul just looked sick, like 
 
         he should not have been at work.  Washington testified that, 
 
         according to company records, exhibit G, no specific work 
 
         activity for Paul Neil was shown.  She explained that Paul had 
 
         been assigned to perform work which did not require reporting and 
 
         the fact that no work was reported does not mean that he did no 
 
         work. Washington's testimony is to the effect that Paul performed 
 
         some work.  She stated that if he had worked at 46% of normal 
 
         production on Tuesday, it would not surprise her.  She stated 
 
         that when Paul was healthy, he normally would work at 65%-80% of 
 
         what was considered normal productivity.  Washington considered 
 
         banding to be strenuous work, although Paul's fellow employees, 
 
         namely Eckhoff, Petersen and Byrnes, did not consider it to be 
 
         strenuous (exhibit G-1 through G-5).
 
         
 
              Paul Neil had a history of myocardial problems (exhibit A-1 
 
         through A-9).  It appears, however, that the problems were not 
 
         communicated to his family and that he did not receive actual 
 
         medical treatment for the problems.  The cardiologist, Ankineedu 
 
         Kavuru, M.D., reported that Paul Neil probably had coronary 
 
         artery disease for a long time and that the stress and strain of 
 
         work might have contributed to the acute event which caused his 
 
         death (exhibit B-1).
 
         
 
              David W. Kabel, M.D., a cardiologist, testified that 
 
         claimant had a 90% blockage of his anterior descending coronary 
 
         artery, a condition which Dr. Kabel indicated was of 
 
         long-standing origin. Dr. Kabel expressed the opinion that Paul 
 
         Neil's employment was a significant contributing factor in 
 
                                                
 
                                                         
 
         producing his death.  Dr. Kabel stated that the primary factors 
 
         were the heat and humidity.  He stated that if Paul had been 
 
         merely standing or sitting, and doing little or nothing else, it 
 
         would not change his opinion regarding the cause of Paul's death.  
 
         Dr. Kabel stated that the environment was an aggravating factor 
 
         and that if Paul had merely been outside in the heat, that alone 
 
         could have placed him into the hospital. Dr. Kabel felt that 
 
         claimant would not have had the heart attack if he had stayed 
 
         home in air conditioning rather than going out into the heat to 
 
         go to work.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that Paul Neil received an injury on or about August 17, 
 
         1983 which arose out of and in the course of his employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 W.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
 
 
                        
 
                                                         
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 
 
         N.W.2d 283.(Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The requirement that the injury or a death "arise out of" 
 
         the employment relates to the cause and origin of the injury.  
 
         The "arising out of" requirement is satisfied by showing a causal 
 
         relationship between the employment and the injury.  Sheerin v. 
 
         Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); McClure v. Union, et 
 
         al. Counties, 188 N.W.2d 283, 287 (Iowa 1971).  For a cause to be 
 
         proximate, it must be a substantial factor in bringing about the 
 
         result, but it need not be the only cause.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              Exhibit D shows the cause of Paul Neil's death to have been 
 
         acute myocardial infarction secondary to severe atherosclerosis. 
 
         The autopsy report showed scarring and changes in claimant's 
 
         heart which clearly demonstrate that the atherosclerotic 
 
         condition was not of recent origin.  Paul Neil clearly had a 
 
         previously weakened or diseased heart.  The law is well settled 
 
         that in those cases where there is some personal causal 
 
         contribution in the form of a previously weakened or diseased 
 
         heart, the employment contribution must take the form of an 
 
         exertion greater than that of nonemployment life in order for 
 
         there to be a workers' compensation recovery.  The comparison is 
 
         not with the individual employee's usual exertion in his 
 
         employment, but with the exertions of normal nonemployment life 
 
         of the employee or of any other person.  Briarcliff College v. 
 
         Campolo, 360 N.W.2d 91, 95 (Iowa 1984); Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903, 905 (Iowa 1974).  The two cases 
 
         previously cited go on to state that there are two methods of 
 
         establishing compensability.  The first is where the work 
 
         ordinarily requires heavy exertion which, when superimposed upon 
 
         an already-defective heart, aggravates or accelerates the 
 
                                                
 
                                                         
 
         condition, resulting in compensable injury.  The second situation 
 
         which allows compensation to be awarded is when the medical 
 
         testimony shows an instance of unusually strenuous employment 
 
         exertion imposed upon a preexisting diseased condition which 
 
         results in a heart injury.  The key, however, is that the 
 
         employment exertion must be greater than the exertions of normal 
 
         nonemployment life.
 
         
 
              The standard which has been established of comparing the 
 
         employment exertions to the exertions of normal nonemployment life 
 
         is a very vague and subjective standard.  The standard does not 
 
         compare the exertions of the employee's employment with that same 
 
         employee's nonemployment life.  The standard for comparison is the 
 
         normal nonemployment life of the employee or of any other person. 
 
         The exertions of normal nonemployment life vary tremendously among 
 
         individuals.  Some individuals, in their nonemployment life, are 
 
         predominantly sedentary.  They live in apartments and do not mow 
 
         lawns, garden or shovel snow.  They do not play tennis, golf or 
 
         engage in any other type of exercise beyond merely walking at a 
 
         leisurely pace from one location to another.  Other individuals, 
 
         however, mow lawns and shovel snow, remodel, paint, and maintain 
 
         their homes and engage in activities such as tennis, swimming and 
 
         softball as a means of obtaining exercise.  Some even run for 
 
         miles training for and participating in marathons.  Some of those 
 
         who engage in outdoor activities continue to do so despite the 
 
         weather, regardless of the humidity or temperature.  It is not at 
 
         all uncommon to see individuals mowing lawns, gardening or working 
 
         on their homes on the hottest days of summer.  Individuals can be 
 
         found shoveling snow and engaging in other wintertime activities 
 
         in sub-zero temperatures.  It is therefore determined that normal 
 
         nonemployment life covers a wide range of activities and 
 
         exertions. Normal nonemployment life includes such things as 
 
         neighbors who have barking dogs which keep one awake at night.  It 
 
         includes obnoxious neighborhood children who trespass upon 
 
         newly-planted seedlings and flower beds.  Normal nonemployment 
 
         life includes the emotional stresses of bills which exceed the 
 
         available income from which to pay them.  The physical exertions 
 
         involved in normal nonemployment life include activities such as 
 
         climbing a flight of stairs in order to go from the first to the 
 
         second story of a home, gardening, playing softball, changing a 
 
         tire, mowing a lawn or playing golf in extremely hot, humid 
 
         weather.  The range of normal nonemployment exertions includes 
 
         being exposed to life without the benefit of air conditioning.  
 
         The pace or rate at which an activity is performed is an important 
 
         consideration, however.
 
         
 
              An injury which arises from a risk which is personal to the 
 
         employee is not connected with the employment and does not arise 
 
         out of the employment.  These are sometimes referred to as 
 
         idiopathic conditions.  Paul Neil's preexisting coronary artery 
 
         disease is clearly an idiopathic condition.  In order for 
 
         compensation to be awarded for the results of an idiopathic 
 
         condition, it is necessary either that the employment precipitates 
 
         the effects of the condition by strain or trauma or that the 
 
         employment placed the employee in a position which aggravates the 
 
                                                
 
                                                         
 
         effects of the idiopathic condition.  1 Larson Workmen's 
 
         Compensation Law, section 12.00.  The Iowa court has adopted a 
 
         test for determining whether an injury which is in part caused or 
 
         contributed to by preexisting coronary defects can be compensated 
 
         under the workers' compensation laws.  As is the case with 
 
         emotional injuries, the employment must provide something more 
 
         than a stage upon which the cardiac injury occurs.  Newman v. John 
 
         Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 (Iowa 1985).  
 
         In order to recover benefits for injuries which are produced by 
 
         exposure to heat, it is necessary that the employee's exposure to 
 
         heat be greater than that of the general public.  Wax v. Des 
 
         Moines Asph. Pav. Corp., 220 Iowa 864, 866, 263 N.W. 333, 334 
 
         (1935).  Where natural heat is supplemented by artificial heat 
 
         sources, a recovery can, however, be awarded.  West v. Phillips, 
 
         227 Iowa 612, 616, 288 N.W. 6251, 627 (1939).  Where the 
 
         employment precludes the opportunity to reduce the activity level, 
 
         such may be sufficient to permit a recovery.
 
         
 
              The evidence in this case fails to establish, by a 
 
         preponderance of the evidence, that Paul Neil was placed under 
 
         stress or exertions which exceeded the exertions of normal 
 
         nonemployment life at any time on August 15, 16 or 17, 1983.  Paul 
 
         Neil had severe coronary artery disease.  In all likelihood, it 
 
         would have eventually caused his death regardless of the 
 
         activities in which he engaged.  It is apparent that the disease 
 
         was so severe that even the mild exertion of walking from a 
 
         vehicle to the employer's plant placed an overload upon his 
 
         diseased cardiopulmonary system.  It appears that he was free from 
 
         symptoms only if he limited his activities to those which were 
 
         essentially entirely sedentary.  There is no evidence in the 
 
         record of this case regarding the activities in which Paul Neil 
 
         engaged during his nonemployment life.  There is no evidence that 
 
         he mowed his own yard, shoveled his own snow or painted his home. 
 
         To the contrary, it appears that he led a quite sedentary 
 
         lifestyle, particularly during the last year of his life. 
 
         According to Dr. Kabel, simply being exposed to the heat and 
 
         humidity that existed in Waterloo, Iowa in mid-August of 1983 
 
         could have been sufficient to produce the acute event which placed 
 
         Paul Neil into the hospital and ultimately led to his death.  It 
 
         is clear that Paul Neil's coronary condition was fragile.  It was 
 
         so fragile that even moderate activity could have readily produced 
 
         the infarction which led to his death.  Paul Neil was a 
 
         conscientious, hardworking man.  He made a valiant effort to 
 
         resume his employment, but he simply did not have sufficient 
 
         physical capacity to do so.  A level of activity which would have 
 
         been moderate in comparison to the normal exertions of his 
 
         employment was more than he was capable of performing.  There is 
 
         no showing in the evidence of this case that anything connected 
 
         with his employment reduced his working capacity to such an extent 
 
         that when he attempted to, engage in what is best termed as 
 
         "light" or "moderate" work activity, it produced his death.  
 
         Paul's rate of work production was considerably less than normal.  
 
         He was permitted to work at his own pace.
 
         
 
              There is evidence that electric motors produced some 
 
                                                
 
                                                         
 
         artificial heat, but there is no showing that any heat from the 
 
         electric motors appreciably changed the existing conditions in 
 
         Paul Neil's work area.
 
         
 
              There is no claim that Paul Neil's employment produced the 
 
         coronary artery disease with which he was afflicted or that the 
 
         coronary artery disease or death was in any other fashion 
 
         proximately caused by Neil's employment.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  On August 15, 1983, Paul Neil's heart was diseased with 
 
         severe atherosclerosis.
 
         
 
              2.  On August 17, 1983, Paul Neil suffered a myocardial 
 
         infarction as a result of his attempt to resume normal work 
 
         activities with his employer.
 
         
 
              3.  The exertion level which produced that myocardial 
 
         infarction is not shown to have exceeded the exertions of normal 
 
         nonemployment life of Paul Neil or of any other person.
 
         
 
              4.  The evidence fails to demonstrate that Neil's work 
 
         ordinarily required heavy exertions which aggravated, or 
 
         accelerated, claimant's preexisting heart condition.  The 
 
         evidence fails to demonstrate that Paul Neil engaged in any 
 
         instance of unusually strenuous employment exertion at or about 
 
         the time of his attempt to return to work in August, 1983.
 
         
 
              5.  Paul Neil's myocardial condition was so fragile that 
 
         exertions which were well within the range of normal 
 
         nonemployment life were sufficient to produce a myocardial 
 
         infarction injury and his death.
 
 
 
                             
 
                                                         
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Grace Neil has failed to prove, by a preponderance of 
 
         the evidence, that Paul Neil sustained an injury which arose out 
 
         of his employment on or about August 17, 1983.
 
         
 
              3.  Grace Neil has failed to prove, by a preponderance of 
 
         the evidence, that Paul Neil's employment exertions produced a 
 
         myocardial injury, rather than the injury having been proximately 
 
         caused by the previously weakened and diseased condition of his 
 
         heart.
 
         
 
              4.  Paul Neil's heart attack and death are not compensable 
 
         under Chapter 85 of The Code of Iowa.
 
         
 
                                  ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant.
 
         
 
              Signed and filed this 10th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert C. Andres
 
         Attorney at Law
 
         First National Building, Sixth Floor
 
         P.O. Box 2634
 
         Waterloo, Iowa  50704-2634
 
         
 
         Mr. John W. Rathert
 
         Attorney at Law
 
         620 Lafayette Street
 
         P.O. Box 178
 
         Waterloo, Iowa  50704
 
         
 
         
 
         
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.10, 1402.30, 2202
 
                                            Filed May 10, 1989
 
                                            MICHAEL G. TRIER
 
         
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GRACE NEIL,
 
         
 
              Claimant,                                File No. 756209
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         JOHN DEERE COMPONENT WORKS,                   D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1108.10, 1402.30, 2202
 
         
 
              Paul Neil had been off work for approximately a year due to 
 
         nonwork-related conditions affecting his knees.  He attempted to 
 
         return to work in August, 1983, at a time when daily high 
 
         temperatures were in the mid- to high-90's.  He never resumed the 
 
         normal level of activity for a person in his job.  On the morning 
 
         of the third day of his attempt to return to work, he was 
 
         strickened by a myocardial infarction, taken to the hospital 
 
         where he died a day later.  His death was attributed to severe 
 
         coronary atherosclerosis.
 
         
 
              Where the evidence failed to demonstrate that Neil's 
 
         employment activities involved exertions which were greater than 
 
         the exertions of normal nonemployment life, his death was held to 
 
         be noncompensable.  A discussion is contained in the decision 
 
         regarding the lack of precision involved in the test of what 
 
         exertions exceed those of normal nonemployment life.
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         FIRST NATIONAL BANK OF
 
         DUBUQUE and BARBARA L. MARTIN,
 
         CO-EXECUTORS OF THE ESTATE OF
 
         MILES H. MARTIN, JR., Deceased,
 
         and BARBARA L. MARTIN,
 
         Individually and as Surviving
 
         Spouse of MILES H. MARTIN, JR.,
 
         
 
              Claimants,
 
                                                 File No. 756244
 
         VS.
 
                                                   A P P E A L
 
         THE MEDICAL ASSOCIATES CLINIC,
 
                                                 D E C I S I 0 N
 
         P.C.,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         death benefits and funeral expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 2A through 2E.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                    ISSUE
 
         
 
              Defendants state the following issue on appeal: "Did the 
 
         deputy industrial commissioner err in determining that decedent's 
 
         death arose out of and in the course of employment?"
 
         
 
                            REVIEW OF EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Decedent, Miles F. Martin, M.D., was killed in an automobile 
 
         accident on March 1, 1982.  He was a cardiovascular surgeon.
 
         
 
              As a regular part of his work decedent performed surgery at 
 
         nearby hospitals.  He traveled to the hospitals in his personal 
 
         automobile.  The employment agreement between decedent and 
 
         Medical Associates contained a provision which required that 
 

 
         decedent pay his own automobile and other professional expenses.  
 
         This provision appears in Article VI, paragraph 4 of the 
 
         employment agreement preceded by this sentence: "Employee shall 
 
         pay in the course of his employment certain other necessary 
 
         expenses as a practicing physician for which the Employee will be 
 
         required personally to pay and for which Employer shall be under 
 
         no obligation to reimburse or otherwise compensate the Employee 
 
         including, but not limited to, the following:"
 
         
 
              Decedent did not have fixed hours of work but was on call 
 
         every other weekend and on every other day.  When he was on call 
 
         decedent was required to be available at all times to go to the 
 
         hospital.  Decedent was on call the weekend he was killed.
 
         
 
              Decedent had two heart surgeries scheduled on the day he was 
 
         killed.  Decedent saw Aredale Muchow on February 28.  A notation 
 
         in Muchow's hospital records indicate that decedent ordered 
 
         surgery for Muchow for the morning of March 1. Rosemary Spielman, 
 
         a licensed practical nurse who handled the scheduling of 
 
         decedent's surgeries, identified the writing and signature in 
 
         this notation as decedent's.  Spielman states that she did not 
 
         schedule Muchow's surgery and only learned that it had been 
 
         scheduled after decedent's death.
 
         
 
              Michael J. Evans, M.D., is a thoracic surgeon.  He was a 
 
         co-employee of decedent.  Dr. Evans rotated on call duty with 
 
         decedent.  He confirms that decedent was on call the morning of 
 
         his death until 8:00 a.m. Dr. Evans examined the hospital records 
 
         of Muchow.  He states that those records reveal that decedent did 
 
         see Muchow and that decedent recommended an esophagoscopy.  He 
 
         states that this esophagoscopy was scheduled for the morning of 
 
         March 1, 1982 prior to the two heart surgeries.  Dr. Evans 
 
         performed the esophagoscopy on Muchow due to the death of 
 
         decedent.  Dr. Evans opines that the esophagoscopy was not an 
 
         emergency but that it was urgent in that Muchow's condition was 
 
         potentially life threatening.
 
         
 
              Claimant, Barbara Martin, decedent's wife, states that 
 
         decedent left home on the morning of his death around 5:50 a.m. 
 
         Claimant also states that the evening before the accident 
 
         decedent told her that he had something to take cart of at the 
 
         hospital the next morning.
 
         
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                  ANALYSIS
 
         
 
              Defendants argue that the demise of going and coming rule is 
 
         at the heart of this case.  Contrary to this argument the 
 
         deputy's conclusion that there was an express and implied 
 
         requirement that the decedent furnish an automobile in order to 
 
         be an employee of Medical Associates is correct.  Dr. Evans' 
 
         testimony and Article VI, paragraph 4 of the employment agreement 
 
         support this conclusion.  The deputy's application of the holding 
 
         in David v. Bjorenson, 229 Iowa 7, 293 N.W. 829 (1940), to his 
 
         conclusion is appropriate and is adopted herein.
 
         
 
              Defendants' argument for application of the going and coming 
 
         rule in this case ignores the fact that decedent was not on his 
 
         way to his office; he was on his way to the hospital.  Decedent's 
 

 
         
 
         
 
         
 
         MARTIN V. THE MEDICAL ASSOCIATES CLINIC, P.C.
 
         Page   3
 
         
 
         
 
         trip from home to the hospital is analogous to that of an 
 
         employee who is sent by his employer on a business trip and 
 
         directed that he is to leave on the trip from his home the next 
 
         day.  The employee is in the course of his employment from the 
 
         time he leaves Ills home.
 
         
 
              This situation is markedly different from the usual case of 
 
         an employee who merely commutes from his home to work in the 
 
         morning and returns in the evening.  Injuries occurring in 
 
         ordinary travel to and from work are those that the going and 
 
         coming rule was intended to cover.  Larson expresses this 
 
         principle in his statement of the going and coming rule in 
 
         15.00:
 
         
 
                   As to employees having fixed hours and place of 
 
              work, injuries occurring on the premises while they are 
 
              going to and from work before or after working hours or 
 
              at lunchtime are compensable, but if the injury occurs 
 
              off the premises, it is not compensable, subject to 
 
              several exceptions.  Underlying some of these 
 
              exceptions is the principle that course of employment 
 
              should extend to any injury which occurred at a point 
 
              where the employee was within range of dangers 
 
              associated with the employment.
 
         
 
              Decedent did not work fixed hours or have a fixed place of 
 
         work.  His employment required his commuting between hospitals 
 
         and his office and not on any set schedule.  Clearly decedent's 
 
         trip to the hospital on March 1, 1982 was not within the scope of 
 
         the going and coming rule.
 
         
 
         
 
              The finding of fact conclusions of law and order of the 
 
         deputy are adopted herein.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  On March 1, 1982 decedent was killed in an automobile 
 
         accident on his way to the hospital.
 
         
 
              2.  At the time of the accident decedent was operating a 
 
         motor vehicle which he was required to have as a necessary part 
 
         of his employment.
 
         
 
              3.  Claimant's work required him to go to the hospital.
 
         
 
              4.  Claimant's rate of compensation is $501.
 
         
 
              5.  Decedent's funeral expenses were $1,566.68.
 
                                        
 
                                CONCLUSION OF LAW
 
         
 
              Decedent's death arose out of and in the course of his 
 
         employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 

 
         
 
         
 
         
 
         MARTIN V. THE MEDICAL ASSOCIATES CLINIC, P.C.
 
         Page   4
 
         
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay unto claimant weekly compensation at the 
 
         rate of five hundred one dollars ($501) commencing March 1, 1982 
 
         and continuing pursuant to section 85.31, The Code.
 
         
 
              That defendants pay unto claimant one thousand dollars 
 
         ($1,000) for burial expenses pursuant to section 85.28, The 
 
         Code.
 
         
 
              That defendants pay unto the Treasurer of the State of Iowa 
 
         for the second injury fund two thousand dollars ($2,000) pursuant 
 
         to section 85.65, The Code.
 
         
 
              That the costs of this action are taxed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file a claim activity report within 
 
         thirty (30) days of the date hereof.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 29th day day of September, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Joseph P. Zwack
 
         Attorney at Law
 
         204 Security Building
 
         P.O. Box 29
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100-1104-1107-1110
 
                                                 Filed September 29, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         FIRST NATIONAL  BANK  OF
 
         DUBUQUE and BARBARA L. MARTIN,
 
         CO-EXECUTORS OF THE ESTATE OF
 
         MILES H. MARTIN, JR., Deceased,
 
         and BARBARA L. MARTIN,
 
         Individually and as Surviving
 
         Spouse of MILES H. MARTIN, JR.,
 
                                                 File No. 756244
 
              Claimants
 
                                                   A P P E A L
 
         VS.
 
                                                 D E C I S I 0 N
 
         THE MEDICAL ASSOCIATES CLINIC,
 
         P.C.,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1100 - 1104 - 1107 - 1110
 
         
 
              Decedent, cardiovascular surgeon, was killed on his way to 
 
         the hospital.  Deputy was correct in his determination that the 
 
         decedent furnish an automobile in order to be an employee of 
 
         defendant.  Going and coming rule held not applicable.  
 
         Decedent's trip to the hospital was like that of an employee on a 
 
         business trip which begins when he leaves home.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         GARY LEE NEELANS,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 756250
 
         
 
         JOHN DEERE COMPONENT WORKS,
 
                                                   A P P E A L
 
             Employer,
 
             Self-Insured,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         THE SECOND INJURY FUND
 
         OF IOWA,
 
         
 
             Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision which awarded 
 
         permanent partial disability benefits based on a 65 percent 
 
         industrial disability.  The deputy found that 75 percent of this 
 
         industrial disability was a result of claimant's second injury.  
 
         Prior to the arbitration decision claimant entered into an 
 
         agreement for settlement pursuant to section 86.13 with 
 
         defendant-employer.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, claimant's exhibits 1 through 65, and 
 
         defendants' exhibit A. Claimant and Second Injury Fund of Iowa 
 
         filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                    I.  Whether or not the Deputy Commissioner erred by 
 
              failing to make a finding of fact concerning when Claimant's 
 
              healing period ended as a result of this April 19, 1982 
 
              injury to his left knee that he suffered at John Deere 
 
              Component Works?
 
         
 
                   II.  Whether or not the Deputy Commissioner erred in 
 
              its apportionment of the amount of industrial disability 
 
              that the employer and the second Injury Fund of Iowa is 
 
              liable for in this matter?
 
         
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 

 
         
 
         
 
         
 
         NEELANS V. JOHN DEERE COMPONENT WORKS
 
         Page   2
 
         
 
         
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, on April 19, 1982 claimant sustained an 
 
         injury to his left knee when he hit it against a steel tub.  
 
         Prior to this injury claimant had torn the lateral and medial 
 
         menisci of his left knee and had both lateral and medial 
 
         meniscectomies.  On March 7, 1984 claimant had a complete 
 
         arthroplasty of the left knee.  The arthroplasty and the lateral 
 
         and medial meniscectomy surgeries were performed by James E. 
 
         Crouse, M.D.
 
         
 
              Dr. Crouse opines that the meniscectomy surgeries produced a 
 
         20 percent permanent partial impairment of the lower extremity.  
 
         Dr. Crouse further opines that claimant has an additional 20 
 
         percent permanent partial impairment of the lower extremity as a 
 
         result of the April 19, 1982 injury.
 
         
 
              Claimant injured his right hand in a house fire on December 
 
         8, 1979 and in an auto accident on October 12, 1981.  Claimant 
 
         had carpal tunnel release surgery on the right hand on April 29, 
 
         1982.  Following this surgery claimant developed post-traumatic 
 
         arthritis of the metacarpal trapezoidal joint of the right hand 
 
         for which a fusion was carried out on September 21, 1982.  Dr. 
 
         Crouse, who did not perform the surgeries on claimant's right 
 
         hand but has reviewed the medical reports concerning those 
 
         surgeries, opines that those surgeries were the result of 
 
         claimant's 1979 and 1981 right hand injuries.  Dr. Crouse further 
 
         opines that claimant suffers a ten percent permanent partial 
 
         impairment of the right hand as a result of the carpal tunnel 
 
         release surgery, post traumatic arthritis, and fusion surgery.
 
         
 
              Claimant is restricted from fine manipulation, repetitive 
 
         movement, and firm gripping or twisting of the right hand.  
 
         Claimant is also restricted from lifting more than 40 pounds, 
 
         prolonged walking or standing, repeated climbing and squatting or 
 
         kneeling.
 
         
 
              Claimant is 41 years old, has completed the ninth grade and 
 
         has work experience and qualifications as a manual laborer.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant argues that the deputy erred in failing to find 
 
         when claimant's healing period ended following the April 19, 1982 
 
         injury.  Iowa Code section 85.64 provides that second injury fund 
 
         liability shall commence after expiration of the full period 
 
         provided by law for the payment of compensation by the employer.  
 
         Claimant entered into an agreement for settlement pursuant to 
 
         section 86.13 with defendant-employer prior to the
 
         
 
         arbitration decision in this matter.  This agreement was approved 
 
         by the industrial commissioner on September 23, 1985.  In that 
 
         agreement claimant agreed by was of compromise that his healing 
 
         period ended as of June 28, 1984.  Claimant states in his appeal 
 
         brief that this date should not be considered in finding when 
 
         claimant's healing period ended following the April 19, 1982 
 
         injury because second injury fund liability is not controlled by 
 
         any agreement for settlement entered into between claimant and 
 
         employer.  It is true that the second injury fund may 
 

 
         
 
         
 
         
 
         NEELANS V. JOHN DEERE COMPONENT WORKS
 
         Page   3
 
         
 
         
 
         successfully argue that it is not bound by any agreement for 
 
         settlement between claimant and employer.  See Champlin v. ITT 
 
         Continental Baking, Appeal Decision, November- 6, 1980; District 
 
         Court a firmed.  However, second injury fund has made no such 
 
         argument.
 
         
 
              The agreement for settlement is binding on claimant since it 
 
         was approved by the industrial commissioner.  See section 86.13. 
 
         Therefore, claimant is stopped from asserting in this proceeding 
 
         that claimant's healing period did not end on June 28, 1984. If 
 
         claimant believes his condition warrants an increase of the 
 
         compensation agreed upon, he may file a review-reopening 
 
         proceeding.  See sections 86.14 and 85.26.
 
         
 
              Therefore, it is found that claimant's healing period as a 
 
         result of his April 19, 1982 injury ended on June 28, 1984.
 
         
 
              Claimant argues on appeal that the deputy erred in assessing 
 
         industrial disability to the second injury claimant sustained 
 
         because the second injury did not extend to the body as a whole.  
 
         Claimant's argument is correct.
 
         
 
              The deputy, following prior agency decisions interpreting 
 
         Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979), 
 
         assessed industrial disability as a result of the second injury.  
 
         However, subsequent agency interpretation of Mich Coal has held 
 
         that assessment of industrial disability of the second injury is 
 
         appropriate only when the second injury extends to the body as a 
 
         whole as in the Mich Coal case.  See Alpha Fulton v. Jimmy Dean 
 
         Meat Co.., Appeal Decision, July 2, 1986.  If the second injury 
 
         is limited to a scheduled member then the employer's liability is 
 
         limited to the schedule.  Simbro v. Delong's Sportswear, 332 
 
         N.W.2d 886 (Iowa 1983).  Accordingly, the second injury fund is 
 
         charged with the excess industrial disability over the combined 
 
         scheduled losses of the first and second injury.
 
         
 
              It is clear from the record that claimant's second injury 
 
         was limited to the lower extremity.  The deputy found that 
 
         claimant was 65 percent industrially disabled at the time of 
 
         hearing.  The deputy also found that claimant suffers a 10 
 
         percent permanent partial impairment to the right hand and a 20 
 
         percent permanent partial impairment to the left lower extremity 
 
         as a result of the April 19, 1982 injury to the left knee.  The 
 
         findings are not contested on appeal.  Nevertheless, the 
 
         deputy's
 
         
 
         analysis on these points is accurate and adopted herein.  
 
         Therefore, the second injury fund is liable for 325 weeks of 
 
         permanent partial disability (65 percent industrial disability 
 
         times 500 weeks) less 19 weeks for scheduled impairment to the 
 
         right hand (10 percent times 190 weeks), less 44 weeks of 
 
         permanent partial disability for scheduled impairment to the left 
 
         leg (20 percent times 220 weeks) or 262 weeks of permanent 
 
         partial disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On April 19, 1982 claimant became dizzy as a result of 
 
         taking Zomax for a non-work condition and hit his left knee 
 

 
         
 
         
 
         
 
         NEELANS V. JOHN DEERE COMPONENT WORKS
 
         Page   4
 
         
 
         
 
         against a steel tub at work.
 
         
 
              2.  The tub was necessary to claimant's work activities and 
 
         the work activities thereby aggravated the effects of claimant's 
 
         becoming dizzy.
 
         
 
              3.  Claimant had torn the lateral and medial menisci of his 
 
         left knee and had both lateral and medial meniscectomies prior to 
 
         his April 19, 1982 work incident.
 
         
 
              4.  Claimant had hypertrophic changes in the left knee on 
 
         x-ray on April 19, 1982.
 
         
 
              5.  The hypertrophic changes are not attributable to the 
 
         April 19, 1982 injury.
 
         
 
              6.  Claimant's primary complaints and objective findings 
 
         following his April 19, 1982 incident concerned the front of the 
 
         knee and the kneecap and not the area of his prior 
 
         meniscectomies.
 
         
 
              7.  Claimant had a complete arthroplasty of the left knee on 
 
         March 7, 1984.
 
         
 
              8.  Claimant's prior left knee meniscectomies had produced a 
 
         20 percent permanent partial impairment of the knee but had not 
 
         prevented claimant from working at John Deere and had not 
 
         prevented claimant from engaging in normal activities.
 
         
 
              9.  Claimant had an additional 20 percent permanent partial 
 
         impairment of his left knee following the April 19, 1982 injury 
 
         and subsequent treatment of the knee condition.
 
         
 
              10.  Claimant had injured his right hand in a house fire on 
 
         December 8, 1979.
 
         
 
         
 
              11.  Claimant subsequently injured his right hand in an auto 
 
         accident on October 12, 1981.
 
         
 
              12.  Claimant had a carpal tunnel release of the right hand
 
          on April 29, 1982.
 
         
 
              13.  Claimant developed post-traumatic arthritis of the 
 
         metacarpal trapezoidal joint of the right hand for which a fusion 
 
         was carried out on September 21, 1982.
 
         
 
              14.  Claimant had a 10 percent permanent partial impairment 
 
         of the right hand as a result of his carpal tunnel release and 
 
         his post-traumatic arthritis and fusion.
 
         
 
              15.  Claimant is restricted in fine manipulation and 
 
         repetitive movement of the right hand and from firm gripping or 
 
         twisting with the hand.
 
         
 
              16.  Claimant is restricted from lifting more than 40 
 
         pounds, from prolonged walking or standing and from repeated 
 

 
         
 
         
 
         
 
         NEELANS V. JOHN DEERE COMPONENT WORKS
 
         Page   5
 
         
 
         
 
         climbing.
 
         
 
              17.  Claimant is 41 years old and has completed ninth 
 
         grade.
 
         
 
              18.  Claimant's work experience and qualifications are as a 
 
         manual laborer.
 
         
 
              19.  Claimant is of low intelligence and would not benefit 
 
         from further formal vocational training, but could benefit from 
 
         on-the-job training.
 
         
 
              20.  A number of jobs connected with well-known branches of 
 
         the labor market are within claimant's limitations.
 
         
 
              21.  Claimant is employable in the competitive labor market 
 
         and is not an odd-lot employee.
 
         
 
              22.  Claimant is not well motivated to further vocationally 
 
         rehabilitate and return to work.
 
         
 
              23.  Claimant's total industrial disability is 65 percent of 
 
         the body as a whole.
 
         
 
              24.  Claimant's healing period ended on June 28, 1984.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established an injury which arose out of and in 
 
         the course of his employment on April 19, 1982.
 
         
 
         
 
              Claimant has established that the disability on which he now 
 
         bases his claim is causally related to the April 19, 1982 injury.  
 
         That disability is a compensable loss of use of claimant's left 
 
         leg.  The compensable value of the impairment to claimant's left 
 
         leg is 44 weeks.
 
         
 
              Claimant has established a loss of use of his right hand.
 
         
 
              Claimant's total industrial disability is 65 percent 
 
         permanent partial impairment of the body as a whole.
 
         
 
              The compensable value of the impairment to claimant's right 
 
         hand is 19 weeks.
 
         
 
              The obligation of the Second Injury Fund of Iowa is 262 
 
         weeks at the rate of $288.00 commencing May 1, 1985.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That the Second Injury Fund of Iowa pay claimant permanent 
 
         partial disability benefits for two hundred sixty-two (262) weeks 
 
         at the weekly rate of two hundred eighty-eight dollars ($288.00) 
 

 
         
 
         
 
         
 
         NEELANS V. JOHN DEERE COMPONENT WORKS
 
         Page   6
 
         
 
         
 
         commencing May 1, 1985.
 
         
 
              That credit be given for any benefits previously paid by the 
 
         fund.
 
         
 
              That accrued payments are to be paid in a lump sum together 
 
         with interest pursuant to section 85.30, The Code.
 
         
 
              That the costs of the arbitration decision are charged 
 
         equally to John Deere Component Works and the Second Injury Fund 
 
         Of Iowa and the costs of the appeal including the transcription 
 
         of the hearing proceeding are charged to the Second Injury Fund 
 
         of Iowa.
 
         
 
              The defendant file claim activity reports as required by 
 
         Division of industrial Services Rule 343-3.1(2) and in compliance 
 
         with this decision.
 
         
 
         
 
                                        
 
         
 
         
 
         
 
         
 
         
 
         
 
                  Signed and filed this 30th day of June, 1987.
 
         
 
         
 

 
         
 
         
 
         
 
         NEELANS V. JOHN DEERE COMPONENT WORKS
 
         Page   7
 
         
 
         
 
         
 
         
 
                                          DAVID E. LINQUIST
 
                                          ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Gregory T. Racette
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 3200-3201-3202-1802-3301
 
                                                 Filed June 30, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         GARY LEE NEELANS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 756250
 
         JOHN DEERE COMPONENT WORKS,
 
                                                  A P P E A L
 
              Employer,
 
              Self-Insured,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         THE SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         3200 - 3201 - 3202
 
         
 
              Reassessment of second injury fund liability necessary in 
 
         light of subsequent agency interpretation of Mich Coal.
 
         
 
         1802 - 3301
 
         
 
              Section 86.13 settlement agreement entered into with 
 
         employer before arbitration decision and approved by Industrial 
 
         Commissioner is binding on claimant.  Not binding on second 
 
         injury fund but second injury fund made no such argument.  
 
         Therefore, date healing period ended following second injury is 
 
         date stated in settlement agreement.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DORLENA WINKELMAN,
 
         
 
            Claimant,
 
         
 
         VS
 
                                                 File No. 756349
 
         WARTBURG COLLEGE,
 
                                                   A P P E A L
 
             Employer,
 
                                                 D E C.I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because she did not establish a causal connection 
 
         between her work injury and her present disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, joint exhibits 1 through 3, claimant's 
 
         exhibits a through f and defendants' exhibits A through E. Both 
 
         parties filed briefs on appeal.
 
         
 
                                    ISSUE
 
         
 
              The issue on appeal can be stated as whether claimant has 
 
         established a causal connection between her February l, 1983 work 
 
         injury and her present disability.
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant sustained a work-related injury to her back on 
 
         February 1, 1983.  She missed the next day of work following this 
 
         injury and took two months off work from June through mid-August 
 
         1983 to rest, on the advice of her physician.  Claimant left her 
 
         employment permanently in May 1984.
 
         
 
         
 
              Claimant's treating physician, M. T. Berstler, M.D., 
 
         diagnosed claimant's back condition as rotatory Scoliosis.  Dr. 
 
         Berstler opines that claimant's back condition was not caused by 
 
         her work but was aggravated by it.  Dr. Berstler's office notes 
 
         reveal that claimant has had back problems since 1975.
 
         
 

 
              Claimant has been examined by Arnold E. Delbridge, M.D., who 
 
         states the following in a letter to Dr. Berstler:
 
         
 
                   Darlena Winkelman was seen on May 7, 1984.  I took 
 
              an x-ray of her lower back and I reviewed the x-rays 
 
              that you sent with her which were over one year old.  
 
              Basically what we find is that she has continued 
 
              collapse of the L2 and L3 discs and some rotatory 
 
              scoliosis on a degenerative basis most likely.
 
         
 
                   Her exam reveals that she has negative straight 
 
              leg raising and she has very minimal if any neurologic 
 
              problems.  This is basically the same as the previous 
 
              findings.
 
         
 
                   After examining her and reviewing her situation 
 
              and talking with her about her job, I feel that this 
 
              lady just cannot do the work that she has been doing.
 
         
 
                   My recommendation would be that she stop doing 
 
              this type of work and either not work at all or go into 
 
              some sedentary type of work.
 
         
 
         (Joint Ex. 3)
 
         
 
              Dr. Delbridge opined the following concerning the cause of 
 
         claimant's back problems:
 
         
 
                   Since I have not seen Mrs. Winkelman since May 7, 
 
              1984 I really can't comment on any additional problems 
 
              she had with her hands or her upper extremities.  There 
 
              is no doubt that Mrs. Winkelman had her scoliosis long 
 
              prior to problems in February of 1983 however her work 
 
              at the college very likely aggravated her back 
 
              situation however most of it was present prior to her 
 
              injury.
 
         
 
                   I believe there is a causal situation between her 
 
              back problem and her work at the college however had a 
 
              situation which very strongly predisposed her to back 
 
              difficulties.
 
         
 
         (Joint Ex. 3)
 
         
 
         
 
         
 
         
 
         
 
              Dr. Delbridge examined claimant again on July 29, 1985 and 
 
         states in a letter after that examination--
 
         
 
                   I would say that she has recovered from her work 
 
              difficulties.  She continues to have her chronic back 
 
              condition.  I don't think she can go back to the kind 
 
              of job she had before.  I would suggest that she 
 
              continue as she has been.
 
         
 
                   I obtained a new set of back films today and on 
 
              AP, lateral, obliques and upshot views of the lumbar 
 
              spine we find that her back has deteriorated somewhat 
 
              more than previously but it is not a rapid 
 
              deterioration.  At this time I would say that other 
 
              than a very sedentary job she should not work 
 
              considering her total picture.
 

 
         
 
         
 
         
 
         WINKELMAN V. WARTBURG COLLEGE
 
         Page   3
 
         
 
         
 
         
 
         (Joint Ex.  3)
 
         
 
              Dr. Delbridge opines in a March 17, 1986 letter that 
 
         claimant's back condition is related to her vigorous work over a 
 
         period of years and to the natural course of her scoliosis.
 
         
 
                             APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                  ANALYSIS
 
         
 
              Claimant, in her appeal brief, makes what appears to be 
 
         two-fold argument.  On one hand claimant argues that her present 
 
         disability is the result of cumulative traumas caused by her work 
 
         activities over a period of years. on the other hand claimant 
 
         argues that her present disability is the result of a 
 
         work-related aggravation of her preexisting condition.
 
         
 
              In support of the cumulative trauma argument claimant cites 
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In 
 
         McKeever the court upheld the industrial commissioner's adoption 
 
         of the cumulative injury rule for use in factually appropriate 
 
         cases.  Id. at 374.  The facts in this case do not support the 
 
         application of the cumulative injury rule.  The record does not 
 
         show that claimant experienced a series of traumas at work which 
 
         resulted in her disability, although claimant's testimony 
 
         indicates that she sometimes had to carry a vacuum cleaner 
 
         between floors in the building that she cleaned, such is found 
 
         insufficient to support her cumulative injury theory.  Dr. 
 
         Delbridge's opinions are likewise insufficient to support the use 
 
         of the cumulative injury rule.
 
         
 
              Claimant's alternative argument is that she has sustained a
 
         work-related aggravation of her preexisting back condition.  The 
 
         record discloses that claimant's preexisting back condition was 
 
         merely temporarily aggravated by her work for defendant employer. 
 
          Claimant took a leave of absence from work for the summer of 
 
         1983 and reported that her back felt better.  After this rest 
 
         claimant returned to her regular duties until May 1984.  
 
         Claimant's back condition deteriorated more rapidly after she 
 
         left her employment with defendants as indicated in Dr. 
 
         Delbridge's letter of July 29, 1985.  The fact that claimant's 
 
         back condition deteriorated more rapidly after she left her 
 
         employment weakens her case.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 62 years of age and has a significant 
 
         history of recurrent low back pain caused by a degenerative 
 
         spinal condition before February 1, 1983, the alleged work injury 
 
         in this case.
 
         
 
              2.  Claimant's prior degenerative back condition has caused 
 
         a gradual increase in impairment to her body as a whole and has 
 
         been restricting her work activity for several years prior to 
 

 
         
 
         
 
         
 
         WINKELMAN V. WARTBURG COLLEGE
 
         Page   4
 
         
 
         
 
         February 1, 1983.
 
         
 
              3.  Claimant had no accidents or traumatic injuries 
 
         involving her back other than those incidents at work for which 
 
         she is now claiming workers' compensation benefits in this 
 
         proceeding.
 
         
 
              4.  Between September 1969 and May 1984 claimant was 
 
         employed at Wartburg College as a part-time janitor working four 
 
         continuous hours per day, five days per week.
 
         
 
              5.  Claimant's job at Wartburg required claimant to perform 
 
         physical labor which was strenuous to her back.
 
         
 
              6.  Claimant experienced increasing pain while working for 
 
         Wartburg for several years before February 1,.1983 which 
 
         aggravated her prior existing back condition.
 
         
 
              7.  On February 1, 1983 claimant injured her back while 
 
         working at Wartburg which compelled her to leave work and remain 
 
         at home the following day.
 
         
 
              8.  Claimant provided sufficient information on February 1, 
 
         1983 to alert defendants to the reasonable possibility of a claim 
 
         for workers' compensation as a result of her injury on February 
 
         1, 1983.
 
         
 
              9.  Between June 1983 and August 1983 claimant received a 
 
         physician authorized leave of absence to rest her back and to 
 
         receive physical therapy.
 
         
 
         
 
         
 
         
 
              10.  Between August 1983 and May 1984 claimant's back 
 
         difficulties became increasingly worse.
 
         
 
              11.  Claimant currently is continuing to suffer a 
 
         significant functional impairment to her body as a whole as a 
 
         result of severe and recurrent back and leg pain precipitated by 
 
         physical activity.
 
         
 
              12.  As a result of her back condition, claimant is unable 
 
         to physically perform the duties that she was performing in her 
 
         former job at Wartburg.
 
         
 
                            CONCLUSION OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence that her present disability is causally connected to her 
 
         work injury of February 1, 1983.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from this proceeding.
 

 
         
 
         
 
         
 
         WINKELMAN V. WARTBURG COLLEGE
 
         Page   5
 
         
 
         
 
         
 
              That defendants pay the costs of the arbitration proceeding 
 
         and claimant pay the costs of appeal including the transcription
 
         of the hearing proceeding.
 
         
 
               Signed and filed this 20th day of October, 1987.
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas E. Leahy
 
         Attorney at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         
 
         Mr. Steven M. Egli
 
         Attorney at Law
 
         Box 157
 
         Waverly, Iowa 50677
 
         
 
         Mr. Hugh J. Cain
 
         Attorney at Law
 
         4th Floor, Equitable Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40 - 1803
 
                                                 Filed October 20, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DORLENA WINKELMAN,
 
         
 
              Claimant,
 
         VS.
 
                                                 File No. 756349
 
         WARTBURG COLLEGE,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.40 - 1803
 
         
 
              Claimant's two-fold argument that her present disability was 
 
         the result of cumulative traumas as the result of a work-related 
 
         aggravation of her preexisting condition failed.  The medical 
 
         evidence presented revealed that claimant's disability was the 
 
         result of the natural course of her scoliosis.