BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY A. JONES,
 
         
 
              Claimant,
 
                                                  File No.  768299
 
         vs.
 
                                               A R B I T R A T I O N
 
         H & W MOTOR EXPRESS,
 
                                                  D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Gary A. Jones, against his self-insured employer, H & W Motor 
 
         Express, to recover benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury allegedly sustained on April 6, 
 
         1984.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Cedar Rapids, Iowa on August 
 
         26, 1987.  A first report of injury was filed on July 20, 1984.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, of William Lyman, of Albert Starcick, of Donald Walling 
 
         and of Lewis E. Vierling as well as of claimant's exhibits A 
 
         through S and defendant's exhibits I and 4 through 19.
 
         
 
              On August 24, 1987, claimant filed a Motion to Strike 
 
         Defendant's Supplemental Answers to Interrogatories in that, 
 
         under then applicable Iowa Rule of Civil Procedure 125(c), 
 
         defendant could not supplement an expert's opinion and conclusion 
 
         within 30 days before trial.  In their Resistance to Claimant's 
 
         Motion to Strike, the defendant indicates that the cited rule did 
 
         not become effective until 23 days prior to hearing on August 26, 
 
         1987.  We believe it would be absurd to expect the defendant to 
 
         be in compliance with the rule when they could not have had 
 
         notice such that they could have complied prior to 30 days before 
 
         hearing.  Claimant's Motion to Strike is denied.
 
         
 
              On September 28, 1987, the employer filed an application to 
 
         allow certain medical records into evidence.  Claimant resisted 
 
         such application.  At time of hearing, the parties agreed that 
 
         the case was fully submitted.  See Post-hearing Order dated 
 
         August 26, 1987.  Division of Industrial Services Rule 343-4.31 
 
         provides that no evidence shall be taken after hearing.  
 
         Defendant employer's motion is denied.
 
                                      
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties have 
 
         stipulated that claimant's rate of compensation is $381.18.  They 
 
         have stipulated that claimant's medical costs are fair and 
 
         reasonable.  Issues remaining to be decided are:
 
         
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE   2
 
         
 
         
 
              Whether claimant received an injury which arose out of and 
 
         in the course of his employment;
 
         
 
              Whether a causal relationship exists between claimant's 
 
         alleged injury and claimed disability;
 
         
 
              Whether claimant is entitled to benefits and the nature and 
 
         extent of claimant's benefit entitlement, including the related 
 
         question of whether claimant is an odd-lot worker under the 
 
         Guyton doctrine;
 
         
 
              Whether claimant is entitled to payment of certain medical 
 
         costs under section 85.27; and,
 
         
 
              Whether defendant gave proper notice of termination of 
 
         healing period benefits as required under Auxier v. Woodward 
 
         State Hospital School.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant was born on January 15, 1934.  He has completed the 
 
         eighth grade and generally has worked as a trucker since 1953 but 
 
         for three years in the Army from 1953 through 1956.  Claimant 
 
         joined the Teamsters in March, 1958 and expressed his belief that 
 
         the union scale for Teamsters members as of the date of hearing 
 
         was $14.51 per hour.  Claimant stated wages with H & W Motor 
 
         Express of $33,207.00 in 1981; of $15,950.00 in 1982; and, of 
 
         $6,813.00 in 1983.  Claimant worked full-time in 1981; 80 days in 
 
         1982; and, 33 days for H & W in 1983.  Claimant reported that he 
 
         returned to full-time work with H & W in January, 1984 and worked 
 
         full-time until his alleged injury date, April 6, 1984.  He 
 
         reported 1984 gross wages of $11,903.36.
 
         
 
              Claimant testified that his general health prior to his 
 
         April, 1984 alleged injury was good.  He reported that he could 
 
         operate a shift semi-tractor trailer truck without difficulty and 
 
         could unload freight on a two- or four-wheel cart, handling up to 
 
         500-600 pounds.  Claimant agreed that he had had prior injuries, 
 
         including a truck accident in 1969 which had produced permanent 
 
         numbness in the calf of his left leg and which had required skin 
 
         grafts; a torn left knee cartilage in 1977 for which he was off 
 
         work for nine weeks; and, a twisted right knee for which he 
 
         required surgery in 1979 and for which he was off work for six 
 
         weeks.  Claimant agreed that he had seen William R. Basler, M.D., 
 
         in 1971 for back strain and had been off work subsequent thereto 
 
         for 12-15 days.  Claimant reported that he returned to work after 
 
         that time without further lost time for back injuries.  He 
 
         agreed, however, that he had likely treated with a Dr. Schira, a 
 
         chiropractor, for low back pain in March, April and May, 1978.  
 
         Claimant stated that, in the trucking industry, one sees a 
 
         chiropractor when one "pulls a muscle."
 
         
 
              Claimant testified that he injured himself on April 6, 1984 
 
         when he slipped on an unraveled carpet roll while in the process 
 
         of making a delivery.  He reported falling forward on his 
 
         stomach.  Claimant worked the balance of the day and unloaded 
 
         freight without difficultly.  Claimant had no pain at the time of 
 
         the incident.  Claimant reported that the injury occurred on a 
 
         Friday and that he rested, self-treated and saw Dr. Schira over 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE   3
 
         
 
         
 
         the weekend.  Claimant reported that, on the following Monday, he 
 
         had right leg and low back pain as well as left-sided problems 
 
         which worsened from then onward.
 
         
 
              On April 16, 1984, claimant saw William R. Basler, M.D., the 
 
         company physician.  Dr. Basler apparently referred claimant to L. 
 
         C. Strathman, M.D., and orthopaedist, whose partner, Warren N. 
 
         Verdeck, M.D., became claimant's treating physician.  On May 7, 
 
         1984, claimant was hospitalized with traction; on September 16, 
 
         1984, claimant received a steroid injection; on September 25, 
 
         1984, claimant underwent a laminectomy.  Claimant reported that, 
 
         subsequent to the laminectomy, he had left lower extremity 
 
         numbness.  Claimant reported he has seen Dr. Verdeck 
 
         approximately once every three weeks, but also agreed he had not 
 
         seen the doctor in the three months prior to hearing.  Claimant 
 
         reported that William J. Robb, M.D., examined him once for 
 
         approximately one-half hour and that Scott Neff, D.O., examined 
 
         him in both August, 1984 and August, 1987 for approximately 15 
 
         minutes.  Claimant reported that Dr. Verdeck had referred him to 
 
         a Dr. Schaefer and a Dr. Wilson at the University of Iowa 
 
         Orthopaedic Clinic.  Claimant agreed that Dr. Strathman has 
 
         advised him to lose weight and reported that he does do exercises 
 
         every morning which Dr. Verdeck prescribed.
 
         
 
              Claimant reported that he is unable to shift a truck as the 
 
         result of the numbness in his left foot and leg.  He reported 
 
         that trucking requires lifting and straining on a daily basis and 
 
         that he is afraid to try heavy lifting.  Claimant complained of 
 
         constant low back, thigh and buttock pain which is somewhat 
 
         relieved through use of a TENS unit.  He reported that pain 
 
         medication reduces the pain, but does not completely remove it.  
 
         Claimant reported he must use approximately two and one-half 
 
         hours to mow his lawn as he now needs to rest to relieve his 
 
         numbness.  He reported he can push light snow for removal, but 
 
         that his son does heavy snow removal.  Claimant testified he had 
 
         no life activity restrictions prior to his injury.
 
         
 
              Claimant was present at hearing in a wheelchair which he 
 
         stated was necessary as a result of an exacerbation of his pain 
 
         on the Saturday prior to hearing.  He reported that the pain came 
 
         on while he was sitting in a kitchen chair at a friend's house 
 
         and was atypical in that such pain exacerbations will generally 
 
         subside when treated with additional pain medication, but that 
 
         this time, the pain did not do so.  Claimant agreed that his 
 
         attorney had provided the wheelchair which he was using at 
 
         hearing.
 
         
 
              Claimant agreed that he has passed the Iowa Department of 
 
         Transportation physical, although he stated that the examination 
 
         was not conducted by his own back surgeon.  Claimant understood 
 
         that, per statements in a July 23, 1987 letter of Don Walling to 
 
         claimant, all restrictions on his activities had been lifted.  
 
         Claimant agreed that he has not sought vocational rehabilitation 
 
         since his injury date and that he has not sought other 
 
         employment.  Claimant reported that his goal was to work as a 
 
         Teamster for 30 years and then retire with full pension.  
 
         Claimant stated that, under the Teamsters' new pension plan, had 
 
         he not been injured, he would have continued to work to increase 
 
         his pension.  On rebuttal, claimant stated that, under the 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE   4
 
         
 
         
 
         governing pension rule, any employee who is laid off can return 
 
         and pay pension payments that are in arrears for up to four 
 
         years, but that there are no rules permitting one to pay for 
 
         upcoming years.
 
         
 
              William Lyman testified that he has been the business agent 
 
         for Teamsters Local 238 since January, 1978.  Mr. Lyman reported 
 
         he is unaware of any trucking firm that permits an individual to 
 
         work with a 50-pound lifting restriction.  He reported that he 
 
         had been unsuccessful in attempting to place claimant in 
 
         over-the-road trucking, given claimant's back problems.  Lyman 
 
         testified that he was aware of a recent letter to claimant by Don 
 
         Walling directing claimant to return to work.  Lyman reported 
 
         that claimant's weight restrictions are still in effect and the 
 
         union's position is that claimant is unable to return to work 
 
         until such are lifted.  He reported that, even if claimant were 
 
         given an automatic truck to drive, claimant would still be 
 
         required to lift as a driver-dockman.  Claimant reported that 
 
         driver-dockmen and freight handlers are required to lift and 
 
         unload freight.  He reported that a freight trucker would 
 
         generally not need to lift unless he was also required to work as 
 
         a freight handler.  Lyman reported that a mechanic would also be 
 
         required to do much heavy lifting, but that the truck 
 
         dispatcher's job was a sedentary job within claimant's weight 
 
         restrictions.  He reported that dispatcher's pay is generally  
 
         $2-$4 less than that of a driver-dockman.  Lyman stated that he 
 
         was uncertain that claimant could hook up the converter required 
 
         on H & W's double-bottom rigs.  He asserted that the "bottom 
 
         line" is that a healthy back is needed to lug freight.  Lyman 
 
         indicated that union workers would not "put up with" 
 
         accommodations made in order to return an injured worker to work, 
 
         if such accommodations violated other workers' seniority.  Lyman 
 
         was unsure of claimant's seniority.  He agreed that there would 
 
         be no union contract violation if claimant were hired for a 
 
         "created" job.
 
         
 
              Lyman stated that, under the Teamsters Union Pension Plan, 
 
         an individual would receive $1,000 per month pension after 30 
 
         years of service.  He reported that each extra $1,000 per month 
 
         enhances the pension by $50.00 per month.  By working to age 64 
 
         or 65, it is possible to acquire a $2,000 per month pension.  
 
         Lyman stated that claimant has worked as a Teamsters member for 
 
         27 3/4 years.  He reported that claimant took an early retirement 
 
         pension at a payment amount of $500.00 per month with such 
 
         retroactive to April, 1986.  Lyman reported that, under ORISHA 
 
         laws and the terms of the Teamsters Union Master Freight 
 
         Agreement, an individual must have paid 500-700 hours Social 
 
         Security in the prior six months to verify gainful employment.  
 
         He reported that, after one has received thirteen pension checks, 
 
         one is "stuck with the pension at that level."  Lyman stated that 
 
         H & W's original position was that claimant could never return to 
 
         trucking and stated that he had assumed that had been H & W's 
 
         position for years.
 
         
 
              Albert Starcick identified himself as a 70-year-old, retired 
 
         friend of claimant.  He had employed claimant as a gas carrier 
 
         from 1952 through 1954.  He reported that claimant had worked for 
 
         him without problems and had been an excellent, very cooperative 
 
         worker.  Starcick characterized claimant's physical condition as 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE   5
 
         
 
         
 
         excellent prior to April, 1984.  He reported that, in the 1950's 
 
         and 1960's and in either 1981 or 1982, claimant had mowed lawn 
 
         and had done construction and cement work on Mr. Starcick's 
 
         acreage.  Starcick expressed his belief that claimant is now in 
 
         very poor physical condition and would now be unable to perform 
 
         duties as a truck driver.  Starcick characterized claimant as in 
 
         pain, but stated he did not know whether claimant's pain was in 
 
         his knees or in his back.
 
         
 
              Don Walling described himself as Vice-President of 
 
         Operations and Labor for H & W Motor Express.  He reported that 
 
         he works with all workers' compensation claims in the company and 
 
         that he has had various discussions as to how claimant could be 
 
         returned to work.  Walling reported that Mr. Lyman had insisted 
 
         that claimant's work return be as a Teamster with full health, 
 
         welfare and pension benefits.  Walling indicated that H & W has 
 
         never been able to return claimant to work under those conditions 
 
         since, it a light-duty job were created for claimant, more senior 
 
         employees would demand the right to bid for such a job.
 
         
 
              Walling reported that, once Dr. Robb had indicated claimant 
 
         could use an automatic transmission truck, one of the company's 
 
         automatic transmission trucks was moved from the Dubuque to the 
 
         Cedar Rapids terminal and a return to work letter was issued to 
 
         claimant.  Walling indicated that Mr. Lyman then asked that a 
 
         third, independent doctor evaluate claimant as Lyman believed 
 
         that Dr. Robb's work release was in conflict with the 50-pound 
 
         lifting restriction of Dr. Verdeck.  Claimant apparently was then 
 
         referred to John Sinning, M.D., for further evaluation.  Walling 
 
         expressed his belief that Dr. Sinning has refused to perform such 
 
         an evaluation.
 
         
 
              Walling stated that the company now has two automatic 
 
         transmission trucks and intends to install five or six more.
 
         
 
              Walling stated that he only learned of claimant's early 
 
         retirement in the month prior to hearing.  He stated that 
 
         claimant remains on H & W's Cedar Rapids seniority list as an 
 
         employee off on workers' compensation.
 
         
 
              Walling characterized himself as "amazed" at Lyman's 
 
         testimony regarding the ORISHA rules as Walling reported an 
 
         awareness of self-funding to increase one's monthly pension.
 
         
 
              Walling reported that H & W has truck drivers still working 
 
         following back surgeries.  He reported that claimant has 
 
         sufficient seniority to bid an intracity road job involving 
 
         little freight handling.  Walling stated he was aware of one H & 
 
         W employee who had worked for 15 months with a 50-pound work 
 
         restriction before the employee was suspended when the 
 
         restriction was discovered.  He reported that the worker is now 
 
         working again as the restriction has been lifted.  Walling 
 
         reported that the company is willing to work with claimant to get 
 
         claimant back to work.  He agreed, however, that his July letter 
 
         was the only communication since 1984 the company had had with 
 
         claimant regarding employment.  Walling agreed that it was 
 
         "ambiguous" as to whether claimant could both drive and unload 
 
         freight.  He reported that equipment is available for freight 
 
         handling if used properly, however.  Walling reported that the 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE   6
 
         
 
         
 
         union scale for an intracity driver is $14.71 if the driver has 
 
         been in the position for four years who is under the prior 
 
         contract.  He agreed that a job delivering flowers would not pay 
 
         nearly that much, however.
 
         
 
              Lewis E. Verling testified that he received a Bachelor of 
 
         Arts degree in psychology in 1975 and a Master of Arts degree in 
 
         rehabilitation job placement in 1976.  He is now employed with 
 
         Management Consulting and Rehabilitation Services.  Mr. Verling 
 
         met with claimant on June 22, 1987 and on August 12, 1987 and had 
 
         telephone contacts with claimant as well.  Verling reported he 
 
         was uncertain as to claimant's actual weight restriction, 
 
         indicating that, if such were 100 pounds, claimant could perform 
 
         heavy-duty work, whereas it such were 50 pounds, claimant could 
 
         perform medium-duty work.  Verling opined that, if claimant had a 
 
         50-pound lifting restriction, claimant would be able to do 
 
         intracity delivery work using an automatic transmission truck.  
 
         Light-duty, intracity delivery work would generally consist of 
 
         delivering flowers, light bulbs, small auto parts and similar 
 
         items.  Verling felt that claimant would be able to drive an 
 
         escort vehicle for oversized loads, could drive a taxi or a bus 
 
         or could deliver cars to destination points.  He opined that it 
 
         was also possible that claimant could work as a dispatcher or 
 
         materials handling supervisor.  Verling opined that, once 
 
         claimants flare-up of his condition resolved and the ambiguity as 
 
         to claimant's weight restriction was clarified, there was a "good 
 
         chance claimant would be employable in the Cedar Rapids labor 
 
         market.  Verling acknowledged that he had not placed anyone in 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE   7
 
         
 
         
 
         light-duty, intracity delivery work in the Cedar Rapids area.  He 
 
         agreed that it is sometimes difficult to place individuals with 
 
         back problems.
 
         
 
              Scott Neff, D.O., a board-certified orthopaedic surgeon, 
 
         testified by way of his deposition taken August 17, 1987.  Dr. 
 
         Neff reported he saw claimant on August 13, 1984 and again on 
 
         August 13, 1987.  He indicated he had reviewed claimant's medical 
 
         records from 1969 onward.  Dr. Neff stated that, as of August, 
 
         1984, claimant had an absent left ankle jerk and positive 
 
         straight leg raising.  He characterizes such as clinical evidence 
 
         of nerve root entrapment.  Dr. Neff reported that, after April, 
 
         1984, plain x-rays had shown degenerative disc disease at L5-S1 
 
         with vacuum disc phenomenon.  A CT scan had shown significant 
 
         spurring and arthritic changes in claimant's back and a myelogram 
 
         had revealed nerve root entrapment and spinal stenosis.  Dr. Neff 
 
         reported that, at the time of surgery, Dr. Verdeck apparently had 
 
         found a calcified or old herniated disc.  Dr. Neff indicated that 
 
         the findings were not compatible with an injury which was only 
 
         three or four weeks old.  He stated that vacuum disc phenomenon 
 
         is associated with degenerative disc disease of years' duration 
 
         and would not have occurred in three or four weeks.  He reported 
 
         that spinal stenosis represents arthritic changes in the back 
 
         with spurring of the facet joints and narrowing of the "little 
 
         holes" where the nerves exit.  He stated that such changes take a 
 
         long time to occur and would clearly predate an injury of less 
 
         than one month earlier.  Dr. Neff reported that evidence of low 
 
         back and left leg pain since approximately 1978 would be a 
 
         history compatible with the findings in May, 1984 as the changes 
 
         in claimant's back were progressive and eventually would reach a 
 
         point where symptoms were such that conservative treatment would 
 
         not relieve them.
 
         
 
              Dr. Neff indicated that some of claimant's left leg symptoms 
 
         such as his muscle changes and tingling resulted from his 1969 
 
         injury, even though claimant's history indicates that claimants 
 
         left leg pain increased after April, 1984.  He reported that 
 
         claimant has had a long history of gout in the left ankle and 
 
         that gout can produce aching and stiffness as well as episodic 
 
         severe swelling and redness during an acute attack.  Dr. Neff 
 
         indicated that gout also involves the small joints of the back 
 
         and can "help" those to become arthritic.
 
         
 
              Dr. Neff reported that, when seen in August, 1984, claimant 
 
         could walk on his toes, but could not do so when seen in August, 
 
         1987 as regards the left side.  Dr. Neff stated that this 
 
         indicated a loss of "muscle ability," that is, the ability to 
 
         push down on the left leg.  He stated that, for that reason, it 
 
         was not acceptable for claimant to return to a truck without an 
 
         air seat and with a heavy clutch mechanism.  He reported that 
 
         claimant should not unload 60,000 pounds of 100-pound peach 
 
         crates as an example, but believed claimant could drive an 
 
         automatic transmission truck with an air seat for short runs such 
 
         as in-town delivery.  The doctor opined that claimant could not 
 
         do unrestricted loading or unloading of a trailer.  He reported 
 
         that claimant may be a candidate for a vigorous physical therapy 
 
         and weight reduction program in order to get into as good 
 
         [physical] shape as possible.  He reported that claimant's gout 
 
         needs to be medically controlled.
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE   8
 
         
 
         
 
         
 
              Dr. Neff stated that, if a patient were asymptomatic and 
 
         then injured with subsequent symptoms, one must causally relate 
 
         the two events.  Dr. Neff indicated that, in claimant's case, 
 
         there was no way to directly causally relate claimant's fall on 
 
         the carpeting or any other kind of injury with claimant's 
 
         problems as evidenced on x-ray three weeks following the fall.  
 
         The doctor did not believe that claimant aggravated or 
 
         accelerated his underlying condition [in the fall].  He thought 
 
         claimant had had a worsening of symptoms which had been 
 
         intermittent and episodic for some time.
 
         
 
              An office note of May 5, 1978 indicates that claimant is 
 
         having problems with his left leg which had an onset 
 
         approximately April 10, 1978 when claimant lifted a bunch of 
 
         cartons while working at Nash Finch.  Claimant was reported as 
 
         having continued problems with pain in the left buttock and in 
 
         the left posterior side and also occasional numb feeling in the 
 
         left foot.  Symptoms were markedly aggravated with coughing or 
 
         sneezing and were relieved somewhat with resting.  Gait was 
 
         within normal limits; heel and toe walking were performed well.  
 
         Straight leg raising on the left produces pain in the left 
 
         buttock and thigh at approximately 40 degrees.  Claimant had no 
 
         weakness in the lower extremities.  Sensation was intact to pin 
 
         prick, questionably diminished to touch between the first and 
 
         second toes of the left toot.  Claimant had good dorsalis pedis 
 
         pulses and full range of motion of the hips and knee.  X-rays 
 
         revealed some small traction spurs in the lower lumbar vertebrae.  
 
         Disc spaces were well maintained.  Pedicles were intact.
 
         
 
              On September 20, 1979, Dr. Verdeck assigned claimant a five 
 
         percent "disability" of the left lower extremity as a result of 
 
         his "most recent surgery."
 
         
 
              An office note of Dr. Strathman of April 27, 1984 gives a 
 
         history of claimant carrying a carpet at work, falling, landing 
 
         face forward and injuring his right knee and left leg.  He states 
 
         that this occurred on April 6, 1984, a Friday, and that claimant 
 
         worked out the day.  The note indicates that claimant's wite 
 
         treated him over the weekend and that claimant worked the next 
 
         week, but was off since the 13th because of pain in the left 
 
         buttock and referred to the posterior aspect of the left leg to 
 
         the knee.  The doctor reported that soreness about the right knee 
 
         had cleared.  On examination, claimant was grossly overweight.  
 
         He stood erect.  Side-tilting to the left and flexion increased 
 
         his pain.  Standing on toes and heels, reflexes were 2 plus at 
 
         the knees and 2 plus at the right ankle.  No reflex at the left 
 
         knee could be elicited.  Straight leg raising was painful on the 
 
         left at 135 degrees.  No definite motor or sensory change was 
 
         noted.  There was some minimal degenerative changes about both 
 
         knees, but no effusion.  Full range of motion of the knees was 
 
         present.  X-rays of April 16, 1984 were reported as showing some 
 
         flattening of his lordosis with some early spurring, particularly 
 
         anteriorly at the L4-5 space and perhaps a little narrowing of 
 
         that space.  No forward slip was noted.
 
         
 
              On August 13, 1984, Dr. Verdeck reported that a CT scan had 
 
         revealed a bulge laterally and to the left at the L4-5 level.  He 
 
         indicates that a myelogram of May, 1984 revealed nerve root 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE   9
 
         
 
         
 
         compression and nerve root amputation involving the left nerve 
 
         roots at L4 and L5.  Diagnosis was of a possible herniated disc 
 
         on the left.  Dr. Verdeck then reported that claimant had 
 
         improved symptomatically, although he was having occasional 
 
         problems with significant pain down the left leg.  On August 24, 
 
         1984, Dr. Verdeck agreed that neither claimant's CT scan nor his 
 
         myelogram showed definite evidence of a herniated disc. on 
 
         September 27, 1984, Dr. Verdeck performed a laminectomy on the 
 
         left side at L4,5 and L5,Sl.  He reported that herniated disc 
 
         material was noted at the L5,Sl level.  On October 26, 1984, Dr. 
 
         Verdeck indicated that claimant had done quite well with relief 
 
         of pain, but was still having numbness in the leg.  He 
 
         characterized claimant as having minimal discomfort.
 
         
 
              On August 26, 1985, Dr. Verdeck reported that claimant 
 
         seemed to be gradually improving, but had not improved to the 
 
         point where he was able to return to trucking.  The doctor 
 
         expressed his doubts about claimant's being able to return to 
 
         trucking, but stated there was still a possibility he might be 
 
         able to do so.  On September 25, 1985, Dr. Verdeck indicated that 
 
         claimant had nearly reached maximum medical improvement, although 
 
         he seemed to be improving somewhat each time he was seen.  The 
 
         doctor did not anticipate further active treatment for the 
 
         injury.  The doctor stated that the permanent partial 
 
         "disability" rating which Dr. Robb had given claimant of 25% of 
 
         the body was reasonable.  Dr. Verdeck stated claimant was not yet 
 
         released to return to work other than with restrictions similar 
 
         to those which Dr. Robb had imposed.  On December 12, 1985, Dr. 
 
         Verdeck reported that, when seen on that date, claimant was 
 
         continuing to improve.  He reported claimant as very motivated to 
 
         return to work and stated there was still a possibility he might 
 
         be able to return to trucking, although probably with a need for 
 
         a 50-pound weight lifting restriction.  On April 14, 1986, Dr. 
 
         Verdeck indicated that Dr. Robb had rated claimant 10% for his 
 
         back and 14% "total body" from his previous leg injuries which 
 
         were unrelated to his recent injury.  Dr. Verdeck stated that he 
 
         felt claimant had a 20% physical impairment rating which was due 
 
         to his recent back injury.  He stated that: "Therefore the 24% 
 
         would also include his leg impairment."
 
         
 
              On August 13, 1984, Dr. Neff reported that claimant had 
 
         classic symptoms of a herniated disc and had been evaluated with 
 
         myelogram and marginal CT scan.  Physical findings were 
 
         consistent with those of earlier physicians.  The doctor reported 
 
         that claimant's CT scan was of such marginal quality that an 
 
         accurate diagnosis could not be made from it.  He indicated that 
 
         clinically claimant had disc disease and decompression 
 
         laminectomy with disc removal and foraminotomy was probably 
 
         recommended.
 
         
 
              On May 1, 1987, Dr. Robb reported that his limitation on 
 
         claimant as far as driving a truck related to the loss of 
 
         strength in the left foot and ankle for pushing down on a clutch.  
 
         The doctor stated that, if a truck were provided that had an 
 
         automatic transmission, he saw no contradiction to claimant's 
 
         driving.
 
         
 
              On July 29, 1985, Dr. Robb indicated that claimant did not 
 
         have the strength in the ankle and foot to perform adequately in 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  10
 
         
 
         
 
         truck driving and, therefore, was totally disabled insofar as 
 
         that occupation was concerned.  He reported that claimant had a 
 
         34% impairment of function of the left lower extremity and 14% of 
 
         the "man as a whole."  He stated that degenerative disc changes 
 
         in the low back represented 10% impairment of function of the 
 
         body as a whole and that claimant therefore carried a 24% 
 
         permanent impairment of function of the body as a whole relative 
 
         to daily living and general performance.  He reported that 
 
         lifting in occupations other than trucking should be limited to 
 
         50 pounds.  The doctor stated that, in performance of a job 
 
         involving standing or sitting, claimant would need to exclude 
 
         jobs requiring substantial force or pressure from the left foot 
 
         and ankle due to weakness present.
 
         
 
              Medical and pharmaceutical statements of cost and accounts 
 
         were in evidence and were reviewed.
 
         
 
              On July 20, 1987, Donald Walling sent claimant, by certified 
 
         mail, a letter advising that claimant was instructed to return to 
 
         work at the first available shift after contacting a Mr. 
 
         Barkdoll.  The contact and return was to be no later than July 
 
         24, 1987.  In the absence of such contact and return, claimant 
 
         would face possible disciplinary action up to and including 
 
         discharge.  Claimant was advised that his work return would be 
 
         with the use of an automatic transmission truck.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter and was consistent with the 
 
         evidence as set forth above.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether claimant received an injury 
 
         which arose out of and in the course of his employment on the 
 
         injury date alleged, that is, April 6, 1984.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 6, 1984 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).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              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 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  11
 
         
 
         
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "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 Supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.]  Likewise a personal 
 
              injury includes a disease resulting from an injury .... 
 
              The result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
     
 
         
 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  12
 
         
 
         
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.]  
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature, and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              Claimant gave credible evidence of a work incident on April 
 
         6, 1984 in which he slipped on a carpet roll and fell forward on 
 
         his stomach.  An April 27, 1984 office note of Dr. Strathman 
 
         gives a similar history.  Credible evidence then exists 
 
         supporting claimant's claim of a work incident of April 6, 1984.  
 
         The more relevant question then becomes whether that work 
 
         incident has resulted in the alleged injury and the claimed 
 
         disability.  For that reason, we must further consider the injury 
 
         question within the context of the causation question.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 6, 1984 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  13
 
         
 
         
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitles to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              A cause is proximate it it is a substantial factor in 
 
         bringing about the result.  It need be only one cause of the 
 
         result; it need not be the only cause.  Blacksmith v. All 
 
         American, Inc., 290 N.W.2d 348, 354 (Iowa 1981).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1965).
 
         
 
              An expert's opinion based on an incomplete history is not 
 
         necessarily binding on the commissioner, but must be weighed with 
 
         other facts and circumstances.  Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 360, 154 N.W.2d 128 (1967).
 
         
 
              A doctor's expertise and board-certification may also accord 
 
         his testimony greater weight.  See Reiland v. Palco, Inc., 32nd 
 
         Biennial Report, Iowa Industrial Commissioner, 56 (Rev. Dec. 
 
         1975); Dickey v. ITT Continental Baking Co., 34th Biennial 
 
         Report, Iowa Industrial Commissioner, 89 (Rev. Dec. 1979).
 
         
 
              Dr. Verdeck has assigned claimant a five percent 
 
         "disability" to the left lower extremity as a result of 
 
         claimant's most recent surgery.  The doctor has also assigned 
 
         claimant a 20% body as a whole impairment due to his recent "back 
 
         injury" with such impairment including the leg impairment.  Dr. 
 
         Verdeck did not expressly relate the ;surgery to the April 6, 
 
         1984 work incident. he apparently is referring to the April 6, 
 
         1984 work incident when he speaks of the recent back injury.  The 
 
         impairment ratings are the only opinion testimony of Dr. Verdeck 
 
         relative to the causal relationship issue.  Such is not fatal, 
 
         but it is troubling, given claimant's long-standing history of 
 
         problems concerning his back and his left lower extremity and his 
 
         problems with gout.  Dr. Robb also rated claimant, but apparently 
 
         did not approach the causal relationship question.  That again is 
 
         troubling, given claimant's long history of medical problems.  
 
         Only Dr. Neff expressly opined as regards the relationship 
 
         between claimants current condition and his April 6, 1984 work 
 
         incident.  Dr. Neff did not believe that the requisite causal 
 
         relationship existed.  He stated that the degenerative disc 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  14
 
         
 
         
 
         disease at L5-Sl with vacuum disc phenomenon and significant 
 
         spurring and arthritic changes in claimant's back discovered by 
 
         way of plain x-rays and CT scans taken in early May, 1984, would 
 
         clearly predate an injury of less than one month earlier.  He 
 
         stated that there was no way to directly causally relate 
 
         claimant's fall on the carpeting or any other kind of injury with 
 
         claimant's problems as evidenced on x-ray following the fall.  He 
 
         did not believe that claimant had aggravated or accelerated his 
 
         underlying condition in the April 6, 1984 fall.  He thought 
 
         claimant had had a worsening of symptoms which had been 
 
         intermittent and episodic for some time.  Hence, Dr. Neff felt 
 
         that claimant's objective findings were more consistent with a 
 
         long-standing problem than with a work incident three weeks 
 
         earlier.  Likewise, claimants history of the onset of his 
 
         symptoms is not wholly consistent with attributing those symptoms 
 
         to the work incident, given claimants prior problems.  Claimant 
 
         testified that he was able to work without pain throughout the 
 
         day of his work incident.  He apparently did feel a need to rest 
 
         and to see his chiropractic doctor over the weekend following the 
 
         Friday incident, but did indicate that he only had right leg, low 
 
         back pain and left-sided problems on the Monday following the 
 
         incident.  Given claimant's prior medical history and the 
 
         objective findings on x-ray and CT scan three weeks following the 
 
         work incident, it is not possible to state that the symptoms on 
 
         the Monday following the work incident were proximately caused by 
 
         the work incident.  Likewise, while claimant stated he would work 
 
         without difficulty prior to his injury, the record reveals he had 
 
         worked only intermittently in the years immediately prior to 
 
         1984.  Given claimant's very limited work time during those 
 
         years, it is not at all improbable that he was less conscious of 
 
         the progression of symptoms during that time.  We find that the 
 
         evidence as to causation as it relates to permanent disability at 
 
         best creates an equipose.  An equipose is not sufficient to carry 
 
         claimant's burden.  See Volk v. International Harvestor Co., 252 
 
         Iowa 298, 106 N.W.2d 649 (1960).
 
         
 
              We next address the question of whether the claimant had an 
 
         aggravation of his symptoms following and on account of his work 
 
         incident such that he would be entitled to temporary total 
 
         disability under section 85.33(l).
 
         
 
              The section provides:
 
         
 
         
 
              Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation 
 
              benefits, as provided in section 85.32, until the 
 
              employee has returned to work or is medically capable 
 
              of returning to employment substantially similar to the 
 
              employment in which the employee was engaged at the 
 
              time of injury, whichever occurs first.
 
         
 
              It is not clearly ascertainable whether claimants injury 
 
         produced temporary total disability since claimant did not leave 
 
         work until April 13, 1984 and since he apparently first saw a 
 
         medical doctor on April 16, 1984.  Likewise, the symptoms which 
 
         caused claimant to leave work were not symptoms that occurred 
 
         immediately following his work incident.  As noted above, 
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  15
 
         
 
         
 
         claimant testified that he had no pain at the time of the 
 
         incident, but did have right leg and low back pain as well as 
 
         left-sided problems on the Monday following the Friday incident.  
 
         For reasons more fully addressed above, the lack of a proximity 
 
         of those symptoms to the Friday incident as well as their 
 
         relationship to claimant's underlying condition, which he has not 
 
         shown to have been seriously aggravated by his work incident, 
 
         make it impossible to meaningfully attribute those to the work 
 
         incident of April 6, 1984.  As no causal relationship has been 
 
         shown, no entitlement to temporary total disability benefits is 
 
         established.
 
         
 
              As claimant has not shown that his work incident of April 6, 
 
         1984 produced ascertainable injury and disability for which 
 
         defendants are liable, the claimant is not entitled to payment of 
 
         medical costs under section 85.27.  Likewise, we need not further 
 
         address the question of benefit entitlement nor reach the 
 
         question of whether defendants gave proper notice of termination 
 
         of benefits as required under Auxier.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant was born on January 15, 1934.
 
         
 
              Claimant had a truck accident in 1969.
 
         
 
              Claimant's truck accident produced permanent numbness in the 
 
         calf of his left leg.
 
         
 
              Claimant had a torn left knee cartilage in 1977; a twisted 
 
         right knee for which he underwent surgery in 1979.
 
         
 
              Claimant was treated for low back strain and low back pain 
 
         in 1971 and 1978.
 
         
 
              Claimant treated periodically with chiropractic care for 
 
         back pain through the course of his trucking career.
 
         
 
              On April 6, 1984, claimant slipped on an unraveled carpet 
 
         roll and fell forward on his stomach.
 
         
 
              Claimant worked the balance of the day unloading freight 
 
         without difficulty.
 
         
 
              Claimant had no pain at the time of the April 6, 1984 
 
         incident.
 
         
 
              Claimant rested, self-treated and saw his chiropractic 
 
         physician during the weekend following the Friday, April 6, 1984 
 
         incident.
 
         
 
              On the following Monday, claimant had symptoms in his right 
 
         leg, his low back and in his left side.
 
         
 
              Claimant first left work on approximately April 13, 1984.
 
         
 
              Claimant saw William Basler, M.D., on April 16, 1984.
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  16
 
         
 
         
 
         
 
              Claimant treated with L. C. Strathman, M.D., and Warren N. 
 
         Verdeck, M.D., orthopaedists.
 
         
 
              Claimant underwent plain x-rays and a CT scan in early May, 
 
         1984.
 
         
 
              The plain x-rays showed degenerative disc disease at L5-Sl 
 
         with vacuum disc phenomenon.
 
         
 
              The CT scan showed significant spurring and arthritic 
 
         changes.
 
         
 
              Vacuum disc phenomenon is associated with degenerative disc 
 
         disease of years' duration and would not have occurred in three 
 
         or tour weeks.
 
         
 
              A myelogram had revealed nerve root entrapment and spinal 
 
         stenosis.
 
         
 
              The spinal stenosis represented arthritic changes in the 
 
         back with spurring of the facet joints and narrowing of the 
 
         "little holes" where nerves exit.
 
         
 
              Such change occurs over a long time and would clearly 
 
         predate an injury of less than a month earlier.
 
         
 
              A laminectomy was performed on September 25, 1984.
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  17
 
         
 
         
 
         
 
              A calcified or old herniated disc was found at the time of 
 
         the laminectomy.
 
         
 
              Claimant had a long history of gout in the left ankle.
 
         
 
              Gout can produce aching and stiffness as well as episodic 
 
         severe swelling and redness during an acute attack.
 
         
 
              Gout also involves the small joints of the back and can 
 
         "help" those to become arthritic.
 
         
 
              Claimant had only worked intermittently in the years 
 
         immediately prior to 1984.
 
         
 
              Claimant did not aggravate or accelerate his underlying 
 
         condition in his April 6, 1984 fall.
 
         
 
              Claimant had a worsening of symptoms which had been 
 
         intermittent and episodic for some time.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established a work incident of April 6, 1984.
 
         
 
              Claimant has not established a work injury on April 6, 1984 
 
         which arose out of and in the course of his employment and which 
 
         injury is causally related to claimed disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from these proceedings.
 
         
 
              Claimant pay costs of this proceeding pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tom Riley
 
         Mr. Thomas J Currie
 
         Attorneys at Law
 
         3401 Williams Blvd. SW
 
         P.O. Box 998
 
         Cedar Rapids, Iowa 52406-0998
 

 
         
 
         
 
         
 
         JONES V. H & W MOTOR EXPRESS
 
         PAGE  18
 
         
 
         
 
         
 
         Mr. Roland D. Peddicord
 
         Mr. Stephen W. Spencer
 
         Attorneys at Law
 
         Suite 300, Fleming Building
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1108.50, 1801
 
                                                   Filed August 26, 1988
 
                                                   HELENJEAN WALLESER
 
         
 
                     BEFORE THE I0WA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY A. JONES,
 
         
 
              Claimant,
 
                                                File  No.  768299
 
         vs.
 
                                             A R B I T R A T I O N
 
         H & W MOTOR EXPRESS,
 
                                                D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.50, 1801
 
         
 
              Claimant did not establish that his work incident resulted 
 
         in a work injury causally related to claimed disability where 
 
         claimant had a long-standing history of like preexisting 
 
         conditions and symptoms and where objective medical findings 
 
         clearly predated the incident.
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RODNEY ALEXANDER,
 
        
 
            Claimant,
 
                                                       File No. 768340
 
        vs .
 
        
 
        GREAT PLAINS BAG CORPORATION,                    A P P E A L
 
        
 
            Employer,
 
                                                       D E C I S I O N
 
        and
 
        
 
        SELF INSURERS SERVICE, INC.,                      F I L E D
 
        
 
            Insurance Carrier,                          OCT 17 1989
 
            Defendants.
 
                                                     INDUSTRIAL SERVICES
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
            Claimant appeals from an arbitration decision denying 
 
        permanent partial disability benefits as the result of an alleged 
 
        injury on June 15, 1984.
 
        
 
            The record on appeal consists of the transcript of the 
 
        arbitration proceeding; joint exhibits 1 through 7 and 9 through 
 
        19; and defendants' exhibits A through D. Both parties filed 
 
        briefs on appeal. Claimant filed a reply brief.
 
        
 
                                      ISSUES
 
        
 
            Claimant states the following issues on appeal:
 
        
 
             I. Did Robert Alexander engage in exertion on June 15, 
 
             1984, that was greater than the stress or exertion 
 
             experienced in the normal, non-employment life of Robert 
 
             Alexander or any other person.
 
             
 
             II. Was the stress and exertion which Mr. Alexander 
 
             underwent in the course of his employment on June 15, 1984, 
 
             unusual in comparison with the normal stress and exertion of 
 
             his employment.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
            The arbitration decision adequately and accurately reflects 
 
        the pertinent evidence and it will not be set forth herein.
 
                                                
 
                                 APPLICABLE LAW
 
        
 
            The citations of law in the arbitration decision are 
 
        appropriate to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
            The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
                                 FINDINGS OF FACT
 

 
        
 
 
 
 
 
        
 
            1. Robert Alexander died on June 15, 1984 as a result of a 
 
        heart attack which occurred at the employer's place of business 
 
        in Des Moines, Iowa.
 
        
 
            2. Robert Alexander was afflicted with severe preexisting 
 
        coronary atherosclerosis.
 
        
 
            3. Robert Alexander's preexisting coronary artery disease 
 
        was the primary factor responsible for causing his death and 
 
        would likely have eventually caused his death.
 
        
 
            4. The coronary event which caused Robert Alexander's death 
 
        on June 15, 1984 was not induced or caused by any activity in 
 
        which Robert Alexander had engaged at his place of employment on 
 
        June 15, 1984.
 
        
 
            5. Stress or exertion which Robert Alexander experienced at 
 
        his place of employment was not a substantial factor in bringing 
 
        about the coronary event or death of Robert Alexander.
 
        
 
            6. The exertion in which Robert Alexander engaged on June 
 
        15, 1984 was of no greater a degree or level than the stress or 
 
        exertion experienced in the normal, nonemployment life of Robert 
 
        Alexander or any other person.
 
        
 
            7. The stress and exertion to which Robert Alexander was 
 
        subjected at his place of employment on June 15, 1984 was not 
 
        unusual in comparison to the normal stress and exertion of his 
 
        employment.
 
        
 
            8. Paul From, M.D., stated that it is not possible to 
 
        determine whether Robert Alexander's death was merely the 
 
        expected culmination of his coronary artery disease or whether 
 
        exertion or stress at his place of employment prompted the death.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
            Claimant has failed to prove, by a preponderance of the 
 
        evidence, that Robert Alexander's death was proximately caused by 
 
        an injury which arose out of and in the course of employment or 
 
        that his death was proximately caused by his employment.
 
                                                
 
                  WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
            THEREFORE, it is ordered:
 
        
 
            That claimant shall take nothing from these proceedings.
 
        
 
            That claimant shall pay the costs of this action pursuant to 
 
        Division of Industrial Services Rule 343-4.33.
 
        
 
            Signed and filed this 17th day of October, 1989.
 
        
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. W. Michael Murray
 
        Attorney at Law
 
        5601 Hickman Road, Suite 4
 
        Des Moines, Iowa 50310
 
        
 

 
        
 
 
 
 
 
        Mr. Harry W. Dahl
 
        Attorney at Law
 
        974 73rd St., Suite 16
 
        Des Moines, Iowa 50312
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RODNEY ALEXANDER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File  No.  768340
 
         
 
         GREAT PLAINS BAG CORPORATION,
 
                                                A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                   D E C I S I 0 N
 
         
 
         and
 
         
 
         SELF INSURERS SERVICE, INC.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Rodney 
 
         Alexander against Great Plains Bag Corporation, employer, and 
 
         Self Insurers Service, Inc., the employer's insurance carrier.
 
         
 
              The case was heard and fully submitted at Des Moines, Iowa 
 
         on November 16, 1987.  The record in this proceeding consists of 
 
         testimony from Mayank K. Kothari, M.D., Richard Alexander and Tom 
 
         Riggs.  The record also contains joint exhibits 1 through 7, 9 
 
         through 19 and A through C.  Exhibit D is in the record of the 
 
         case as an Offer of Proof only and was not relied upon or 
 
         considered in issuing this decision.
 
         
 
                                      ISSUES
 
         
 
              The claimant, Rodney Alexander, is an adult son of Robert 
 
         Alexander and is the only known alleged dependent of Robert 
 
         Alexander.  Robert Alexander died on June 15, 1984.  The issues 
 
         presented for determination are whether Robert Alexander's death 
 
         is the result of an injury which arose out of and in the course 
 
         of employment; whether any alleged injury proximately caused 
 
         Robert Alexander's death; and, whether Rodney Alexander was a 
 
         dependent of Robert Alexander at the time of Robert Alexander's 
 
         death.  Defendants assert an intoxication defense under section 
 
         85.16.  The defendants contend that Rodney Alexander's current 
 
         state of disability is a result of the voluntary ingestion of 
 
         illegal drugs and that his claim should accordingly be barred.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE   2
 
         
 
         
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  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.
 
         
 
              Defendants' brief contains a reasonable summary of the 
 
         evidence in the case which is incorporated herein with some 
 
         alterations.
 
         
 
              The claimant in this action is Rodney Alexander, an adult 
 
         son of Robert Alexander, the deceased.  Robert Alexander and 
 
         LaVonne Alexander were divorced in 1980.  In the Decree, the 
 
         court ordered Robert Alexander to pay child support.  However, 
 
         Robert Alexander did not support Rodney while Rodney was at 
 
         Broadlawns (transcript, pages 50-51).  Rodney is now 24 and was 
 
         17 when he was committed to Broadlawns.  Apparently he went there 
 
         in about 1980 (transcript, pages 47-48).  The medical records 
 
         regarding Rodney show that he had been taking drugs which caused 
 
         or substantially contributes to his disease of schizophrenia 
 
         which causes him to be confined (exhibit C).
 
         
 
              Robert Alexander had been employed by Great Plains Bag 
 
         Company since 1968 (transcript, page 59).  He was an 
 
         over-the-road truck driver, but was terminated in about 1983 
 
         because he was intoxicated and was involved in an episode with a 
 
         company truck (transcript, pages 59-60).  He was rehired, but not 
 
         in a driving capacity, and worked at the employer's place of 
 
         business in Des Moines.  He worked on the dock.  The usual work 
 
         day for his shift began at 7:00 a.m., but he came in at 6:00 a.m. 
 
         to get things cleaned up.  His duties involved cleaning up the 
 
         dock, running a forklift to move pallets with bundles of bags 
 
         and, on average, about two times a week, loading bags from the 
 
         dock into trucks.  The floor of the trailers was even with the 
 
         dock area.  Any manual loading of bags would involve carrying the 
 
         bundles only a few feet from the dock onto the truck.  Tom Riggs, 
 
         the Human Resources Manager of the employer, testified that 
 
         Robert Alexander, in his classification of a truck loader, was in 
 
         a moderate activity job (transcript, page 64).
 
         
 
              Robert Alexander had undergone coronary bypass surgery on 
 
         two occasions: Double aorta-coronary bypass on May 10, 1976 
 
         (exhibit L) and open heart surgery with sextuple (6) bypass 
 
         grafts on May 18, 1981 (exhibit K).  He recovered and returned to 
 
         work without restriction (exhibit I, page, 2).
 
              
 
              Robert Alexander had been a patient at the Veterans 
 
         Administration Hospital in Des Moines off and on for many years.  
 
         On May 21, 1984, he visited the hospital and the diagnosis was 
 
         probable Cushing disease, secondary hypgonadism and secondary 
 
         HTN.
 
         
 
              On June 15, 1984, Robert Alexander went to work at the usual 
 
         time of 6:00 a.m. and, as usual, swept the dock cleaning up.  He 
 
         also drove a forklift as he usually did and took materials on the 
 
         forklift out to the compactor.  He was described by a co-worker, 
 
         George Burch, as in a good mood.  He had been characterized as 
 
         being a slow, good worker who was in apparently good shape and 
 
         was strong, but who took his time (see George Burch statement).
 
         
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE   3
 
         
 
         
 
              At about 11:00 a.m., Robert Alexander was detailed to load 
 
         some material by hand onto a truck because some of these 
 
         materials were not compatible with forklift loading.  The 
 
         materials averaged about 50 pounds and the range was 45 pounds to 
 
         78 pounds.  Tom Riggs testified about the number of bags and 
 
         their weights from an exhibit which showed 21 bundles at 55 
 
         pounds each, 21 bundles at 51 pounds each, 40 bundles at 78 
 
         pounds each, 28 bundles at 55 pounds each, 10 bundles at 62 
 
         pounds each, 10 bundles at 55 pounds each and 10 bundles at 45 
 
         pounds each (exhibit 11).  Another worker, George Burch, was 
 
         helping and was described by Roger Willcox as doing most of the 
 
         loading work.  The work was done from a dock directly onto a 
 
         truck so there was not a lot of climbing up or down in connection 
 
         with the loading of these bundles into a trailer.
 
         
 
              Apparently, Robert Alexander loaded from about 11:00 a.m. 
 
         until noon when he went to lunch.  It was not unusual for him to 
 
         do this type of work.  Business was not too busy that morning so 
 
         a co-worker helped and Robert Alexander did not do the work by 
 
         himself.
 
         
 
              The temperature, according to the records of the United 
 
         States Department of Commerce, showed that the average 
 
         temperature on June 15, 1984 ranged from 69 degrees to 63 degrees 
 
         fahrenheit, taking into account the temperature over a 24-year 
 
         period.  The temperature was a maximum of 69 degrees at 6:00 
 
         a.m., dropping to 65 degrees at 9:00 a.m., 63 degrees at noon and 
 
         64 degrees at 3:00 p.m. by air temperature.  The wet bulb 
 
         temperature was one to two degrees less.  There was some rain in 
 
         the afternoon and it did rain at the workplace.  The loading dock 
 
         had doors open to the inside.  Other workers testified that the 
 
         weather was not bad and a typical Iowa summer day.  At his lunch 
 
         break, George Burch reported that Robert Alexander was heard to 
 
         say that he felt fine.
 
         
 
              After lunch, Robert Alexander and the other worker worked 
 
         until about 2:00 p.m. loading the truck. He told George Burch he 
 
         felt fine.
 
         
 
              When the truck loading was finished, Ray Becker observed 
 
         that Robert Alexander was sweating pretty good and even said to 
 
         him, "Your skin is leaking."
 
         
 
              Robert Alexander stayed on the dock for about 10 minutes 
 
         while the co-worker finished up some things.  Then they walked to 
 
         the break room.  Their paychecks were distributed to them and 
 
         they had refreshments.  After Mr. Alexander was handed his 
 
         paycheck, he leaned over, perhaps coughed, did not say anything, 
 
         turned red and almost purple, and either lay down or was laid 
 
         down.  He was observed to be breathing at least for a while.  
 
         Emergency measures were provided by other persons on the work 
 
         premises.  Paramedics came and tended to him and he was taken to 
 
         Iowa Methodist Medical Center, where he was declared dead.  The 
 
         cause of death was described by the medical examiner as "severe 
 
         atherosclerosis for years."
 
         
 
              The Report of Autopsy, exhibit 2n, performed by Thomas L. 
 
         Bennett, M.D., the State Medical Examiner, revealed:
 
         
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE   4
 
         
 
         
 
              1.  Severe atherosclerotic cardiovascular disease.  Severe 
 
         (greater than 80%) coronary artery narrowing.  Status post 
 
         coronary artery bypass graft surgery x 2.
 
         
 
              2.  Moderate arterioloneptirosclerosis.
 
         
 
              3.  Cardiomegaly, marked (780 grams).
 
         
 
              4.  Diffuse visceral congestion.
 
         
 
              5.  Hepatosplenomegaly (liver weight 4900 grams, spleen 
 
         weight 650 grams), with marked hepatocellular fatty change.
 
         
 
              In the Summary and Comment, Dr. Bennett stated:
 
         
 
              With the history of sudden collapse and death, it is my 
 
              opinion that death is the direct result of his severe 
 
              coronary atherosclerosis.
 
         
 
              Dr. Bennett also noted on the Certificate of Death that the 
 
         immediate cause of death was severe coronary atherosclerosis and 
 
         the approximate interval between onset and death was "years.O
 
         
 
              Paul From, M.D., an internal medicine specialist in Des 
 
         Moines who had treated Robert Alexander, testified by deposition, 
 
         exhibit A.  Dr. From stated that Robert Alexander had coronary 
 
         atherosclerosis which was not a work-related condition (exhibit 
 
         A, page 15).  The doctor stated that the disease would likely 
 
         progress and cause death as it does for 54% of the population 
 
         (exhibit A, pages 19, 20 and 22).  Dr. From stated that "exactly 
 
         why he died is unknown."  He did not have myocardial infarction 
 
         and the grafts from previous heart surgery were patent.  The 
 
         chances are that he died from his atherosclerotic disease, just 
 
         as the medical examiner said (exhibit A, pages 21-22).  It would 
 
         be difficult for Dr. From to say that probably there was a direct 
 
         and proximate causal connection between Robert Alexander's 
 
         activities on June 15, 1984 and his death (exhibit A, page 23).  
 
         In sweating, Robert Alexander was showing a normal response of 
 
         the body to dissipate increased heat within the body (exhibit A, 
 
         page 29).  There were no cardiac or vascular changes that would 
 
         develop acutely (exhibit A, page 30).  The disease processes 
 
         should be a continuum to the natural outgrowth and final 
 
         conclusion of that process (exhibit A, pages 30-31).  In the 
 
         doctor's opinion, the characterization of Robert Alexander's work 
 
         as not unusually strenuous was something he could agree with 
 
         (exhibit A, page 31).  In his opinion, the amount of work was not 
 
         unusual according to the co-employee.  Dr. From was asked whether 
 
         Mr. Alexander had previously suffered cardiac arrhythmia and he 
 
         correctly replied he knew Mr. Alexander had premature ventricular 
 
         contractions, but he had not read anything about arrhythmia.  A 
 
         review of the Veterans Administration records failed to reveal 
 
         evidence of arrhythmia (exhibit A, pages 53-55).  Dr. From 
 
         testified that it was extremely difficult for him to answer in 
 
         probability and positively that the cause of death was related to 
 
         the activities of Robert Alexander on this particular day 
 
         (exhibit A, page 56).  Mr. Alexander did not die of coronary 
 
         thrombosis or of coronary occlusion and it cannot be determined 
 
         whether he died of coronary insufficiency.  Mr. Alexander had 
 
         ventricular fibrillation, but it is extremely difficult to know 
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE   5
 
         
 
         
 
         why (exhibit A, pages 56-70).  In a nutshell, the work of Robert 
 
         Alexander on June 15, 1984 may or may not have some causal 
 
         connection to his death and the doctor could not say there was a 
 
         causal connection between the work and death (exhibit A, page 
 
         72).  Under the circumstances where atherosclerosis is present, 
 
         death is usually considered to be fortuitous and not a result 
 
         from a specific event (exhibit A, page 72).  It is impossible to 
 
         say yes here that the work Mr. Alexander was doing directly led 
 
         to his death (exhibit A, page 73).  In the doctor's opinion, 
 
         Robert Alexander cooled down I went through double the time for 
 
         adjustment following exercise and had additional time before "it" 
 
         (collapsing) happened (exhibit A, page 74).  He could not say 
 
         that activity caused the episode (exhibit A, page 75).  Dr. From 
 
         recommends that cardiac patients keep active to the limits of 
 
         their ability and that they try to keep improving that ability 
 
         (exhibit A, page 77).
 
         
 
              Mayank K. Kothari, M.D., testified that, "The work had a lot 
 
         to do with causation of the heart attack" (transcript, pages 
 
         20-21).  He assumed that Robert Alexander was "projected" to a 
 
         "heavy burden of work" leading to "cardiovascular burden" which 
 
         led to a "hemodynamic stress."  He apparently believed Robert 
 
         Alexander worked for about two hours with a break of ten minutes 
 
         and then went into a cold room.  Dr. Kothari did testify that 
 
         there is a direct causal relationship (transcript, page 24).  
 
         However, the doctor admitted that he was not going to 
 
         characterize the work that Robert Alexander was performing as 
 
         unequivocally unusual (transcript, page 29).  Upon being informed 
 
         of the actual temperature of that day, he retraced his testimony 
 
         to lessen the importance of a drop in temperature (transcript, 
 
         pages 30-31).  He also admitted that Robert Alexander could have 
 
         died from something that he did that morning or even the day 
 
         before (transcript, page 34).
 
         
 
              Contrary to other medical evidence in the file, Dr. Kothari 
 
         testified that the claimant had microvascular hemorrhages similar 
 
         to infarction (transcript, page 38).  He surmised that there was 
 
         myocardial infarction, but "not that the Medical Examiner could 
 
         see."
 
         
 
              Rodney Alexander, according to the testimony of his 
 
         guardian, Richard Alexander, has been confined to Broadlawns 
 
         Medical Center for a number of years.  From the testimony of 
 
         Richard Alexander and from reviewing defendants' exhibit C, it is 
 
         readily apparent that Rodney Alexander is, in fact, totally 
 
         disabled.  He has been committed to the facility and is not free 
 
         to stay or leave as he desires.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that Robert Alexander received an injury on June 15, 
 
         1984 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).
 
         
 
              From all the evidence presented, it is clear that the major 
 
         event indicating the death of Robert Alexander occurred on the 
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE   6
 
         
 
         
 
         employer's premises within the period of employment while he was 
 
         doing something connected with his work.  Accordingly, the death 
 
         occurred in the course of employment.
 
         
 
              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 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              Causation is equivalent to arising out of and in the course 
 
         of.  Briarcliff College v. Campolo, 360 N.W.2d 91, 94 (Iowa 
 
         1984).
 
         
 
              The requirement for an injury to arise out of the employment 
 
         means that the employment must have produced or proximately 
 
         caused the injury, and in this case the resulting  death.
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows;
 
         
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE   7
 
         
 
         
 
              While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.]  Likewise a personal 
 
              injury includes a disease resulting from an injury .... 
 
              The result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee.  [Citations 
 
              omitted.]  The injury to the human body here 
 
              contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes, 
 
              injures, interrupts, or destroys some function of the 
 
              body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 15, 1984 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 
 
         0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be,accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the tinder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE   8
 
         
 
         
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              It is clear that Robert Alexander was afflicted with severe 
 
         atherosclerotic cardiovascular disease.  Dr. From's statement 
 
         that the disease is not employment related is accepted as being 
 
         correct.
 
         
 
              There is little significant controversy about the stress or 
 
         exertion which Robert Alexander had performed immediately prior 
 
         to his death.  He had loaded bags by hand with the assistance of 
 
         another worker from approximately 11:00 a.m. until approximately 
 
         2:00 p.m. with a half-hour lunch break.  The work was uniformly 
 
         characterized as not being unusual. It was clearly part of Robert 
 
         Alexander's customary work activities.  From the record, it 
 
         appears it was performed approximately twice per week, but the 
 
         frequency of performing that type of work varied considerably.  
 
         The record reflects that Robert was perspiring and this is 
 
         indicative of significant physical exertion.  From the weather 
 
         service records, it appears that the temperature was in the 
 
         60's.
 
         
 
              Anyone afflicted by severe coronary atherosclerotic disease 
 
         is in a very fragile state of health.  As the disease progresses, 
 
         the amount of exertion necessary to produce death gradually 
 
         diminishes.  It can become so minimal as to not be discernable or 
 
         identifiable when the actual death occurs.  Death from coronary 
 
         atherosclerosis can be idiopathic.  The law has developed two 
 
         methods by which death, in a case such as this, can be 
 
         compensable.  The first is that the work ordinarily requires 
 
         heavy exertions which aggravate the preexisting heart condition, 
 
         resulting in compensable injury.  Littell v. Lagomarcino Groupe 
 
         Co., 235 Iowa 523, 17 N.W.2d 120 (1945).  Iin such cases, the 
 
         test is whether the ordinary exertions of the employment are 
 
         greater than the exertion of nonemployment life.  The comparison 
 
         is between the exertion alleged to have produced the injury and 
 
         the exertions of normal, nonemployment life of the employee or 
 
         any other person.  Briarcliff College v. Campolo, 360 N.W.2d 91 
 
         (1984); 1A Larson's Workmen's Compensation, section 38.83.  This 
 
         is a quite imprecise standard.  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 a person who resides in an apartment.  The law 
 
         itself is not clear as to whether the comparison is to be made 
 
         with the individual's nonemployment life or with the normal, 
 
         nonemployment life of some presumably average or typical person, 
 
         but the correct test is concluded to be the average or typical 
 
         person's nonemployment me.
 
         
 
              The second situation where compensation may be awarded is 
 
         where medical evidence shows an instance of unusually strenuous 
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE   9
 
         
 
         
 
         employment exertion.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Guyon v. Swift & Company, 229 Iowa 625, 295 N.W. 185 
 
         (1940).
 
         
 
              The second approach to compensability is not applicable to 
 
         this case since it clearly appears that Robert's exertions were 
 
         not unusual for his normal employment exertions.  It was clear 
 
         from several witnesses that loading bags by hand, as was done on 
 
         June 15, 1984, is a common, although not everyday, occurrence.  
 
         Accordingly, if Robert's death is to be compensable, it must fall 
 
         under the first type of situation. It appears that the difference 
 
         between the two tests is whether the employment exertion is usual 
 
         or unusual.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 
 
         1974).
 
         
 
              It therefore must determined whether or not the exertion in 
 
         which Robert Alexander engaged on June 15, 1984 was greater than 
 
         that of nonemployment life.  The degree of exertion involved in 
 
         loading the bags has been characterized as moderate or not 
 
         strenuous at various places in the record.  The weights of the 
 
         bags are not such that simply moving them would necessarily be 
 
         strenuous.  A major factor in determining the degree of exertion 
 
         would likely be the pace at which the work was performed.  There 
 
         is no direct evidence in the record of the work pace.  But moving 
 
         200 bags over a period of two and one-half hours averages nearly 
 
         one minute per bag.  Since two people were performing the task, 
 
         it would mean that each individual handled one bag approximately 
 
         every one and one-half minutes.  If carrying the bags only a few 
 
         feet, such would seem to indicate a fairly slow pace.  A pace 
 
         where each bag were handled in 30 seconds would seem to be a 
 
         relatively slow pace.  Nevertheless, Robert was observed to have 
 
         been perspiring.  The perspiration that was observed is the only 
 
         indication that Robert had exerted himself significantly or was 
 
         in any form of distress prior to the time he collapsed in the 
 
         break room.  George (Larry) Burch, testified that claimant was 
 
         laughing and joking and made no complaints while they were 
 
         loading the bags (exhibit 14, page 10).  Ray Becker indicated 
 
         that claimant seemed normal immediately prior to the time he 
 
         collapsed (exhibit 12, pages 10 and 11).  Steve DeWild asked 
 
         claimant if he were feeling alright and claimant indicated that 
 
         he was (exhibit 13, pages 9 and 10).  Douglas Butcher likewise 
 
         indicated that claimant appeared normal when they were in the 
 
         break room immediately prior to the time he collapsed (exhibit 
 
         15, page 17).  Robert's co-workers indicated that, even though he 
 
         was in ill health, Robert generally did not complain and the only 
 
         evidence of complaints in the record was that he often complained 
 
         of being tired (exhibit 13, page 7; exhibit 14, page 12; exhibit 
 
         16, page 3).
 
         
 
              This case, therefore, presents a scenario where Robert 
 
         Alexander engaged in what was at most moderate physical exertion, 
 
         exhibited no signs of distress and then suddenly collapsed 
 
         without any warning.  In the opinion of Dr. Kothari, Robert had 
 
         suffered a myocardial infarction, but that opinion is not 
 
         corroborated by the autopsy report or by any other evidence in 
 
         the record.  Dr. From expressed the opinion that it is not 
 
         possible to ascertain why Robert died at the time he did, even 
 
         though it was likely that the atherosclerotic coronary disease 
 
         would have eventually caused his death.  Dr. Kothari may be 
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE  10
 
         
 
         
 
         correct as tar as his statement provides that claimantOs 
 
         employment precipitated or brought on the coronary event which 
 
         produced his death.  Dr. From is also probably being correct in 
 
         saying that it is not possible to determine what, other than the 
 
         preexisting coronary artery disease, caused the death.  These two 
 
         seemingly inconsistent opinions are not at great divergence 
 
         because Robert's coronary artery disease was so far advanced that 
 
         nearly any exertion of any type could have produced the final, 
 
         fatal coronary event.  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.  Such is found to be 
 
         the situation in this case.  Accordingly, the death of Robert 
 
         Alexander is found to have been an idiopathic event which 
 
         occurred for reasons personal to Robert Alexander.  It is found 
 
         that the death was caused by the idiopathic coronary artery 
 
         disease with which he was afflicted.  It is further found that 
 
         the employment placed no more stress upon Robert Alexander and 
 
         involved no greater exertion than the exertion found in normal, 
 
         nonemployment life.  It is further found that the employment did 
 
         not place him in a position that subjected him to a greater risk 
 
         of injury or harm from his preexisting condition than would have 
 
         been found in normal, nonemployment life.  Accordingly, 
 
         claimant's claim is denied as claimant has failed to prove that 
 
         Robert Alexander's death was the result of an injury which arose 
 
         out of and in the course of employment with Great Plains Bag 
 
         Corporation.
 
         
 
              In view of the foregoing determination, it is not necessary 
 
         to rule upon whether or not the claimant's claim is barred under 
 
         section 85.16 due to his disability allegedly having been 
 
         voluntarily induced through illegal drug ingestion.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Rodney Alexander is an adult son of Robert Alexander.
 
         
 
              2.  At the time of Robert Alexander's death, Rodney 
 
         Alexander was eventually incapacitated from earning.
 
         
 
              3.  Robert Alexander died on June 15, 1984 as a result of a 
 
         heart attack which occurred at the employer's place of business 
 
         in Des Moines, Iowa.
 
         
 
              4.  Robert Alexander was afflicted with severe preexisting 
 
         coronary atherosclerosis.
 
         
 
              5.  Robert Alexander's preexisting coronary artery disease 
 
         was the primary factor responsible for causing his death and 
 
         would likely have eventually caused his death.
 
         
 
              6.  The evidence fails to establish, by a preponderance of 
 
         the evidence, that the coronary event which caused Robert 
 
         Alexander's death on June 15, 1984 was induced or caused by any 
 
         activity in which Robert Alexander had engaged at his place of 
 
         employment on June 15, 1984.
 
         
 
              7.  The evidence in the case fails to show that any stress 
 
         or exertion which Robert Alexander experienced at his place of 
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE  11
 
         
 
         
 
         employment was a substantial factor in bringing about the 
 
         coronary event or death of Robert Alexander.
 
         
 
              8.  The exertion in which Robert Alexander engaged on June 
 
         15, 1984 was of no greater a degree or level than the stress or 
 
         exertion experienced in the normal, nonemployment life of Robert 
 
         Alexander or any other person.
 
         
 
              9.  The stress and exertion to which Robert Alexander was 
 
         subjected at his place of employment on June 15, 1984 was not 
 
         unusual in comparison to the normal stress and exertion of his 
 
         employment.
 
         
 
             10.  Dr. From's assessment of this case is accepted as being 
 
         correct with regard to his statement that it is not possible to 
 
         determine whether Robert Alexander's death was merely the 
 
         expected culmination of his coronary artery disease or whether 
 
         exertion or stress at his place of employment prompted the 
 
         death.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Rodney Alexander is conclusively presumed to have been 
 
         dependent upon Robert Alexander at the time of Robert Alexander's 
 
         death under Iowa Code section 85.42(2).
 

 
         
 
         
 
         
 
         ALEXANDER V. GREAT PLAINS BAG CORPORATION
 
         PAGE  12
 
         
 
         
 
         
 
              3.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that Robert Alexander's death was proximately caused by 
 
         an injury which arose out of and in the course of employment or 
 
         that his death was proximately caused by his employment.
 
         
 
                                      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 the claimant.
 
         
 
              Signed and filed this 3rd day of August, 1988.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. W. Michael Murray
 
         Attorney at Law
 
         5601 Hickman Road, Suite 4
 
         Des Moines, Iowa 50310
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312