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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH W. FRIDLINGTON,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 788758
 
            3M,                           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL INS.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant, Keith W. Fridlington, filed a petition in 
 
            arbitration against defendant employer, 3M, and defendant 
 
            insurance carrier, Northwestern National Insurance, 
 
            following a work injury sustained on February 28, 1985.  He 
 
            now seeks benefits under the Iowa Workers' Compensation Act.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            November 12, 1991.  The record consists of joint exhibits 1 
 
            through 4 and the testimony of claimant, Linda Fridlington, 
 
            Connie Husted and Barbara Chaldy.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment 
 
            with 3M on February 28, 1985, that the injury caused 
 
            temporary disability (the extent of which is not in dispute) 
 
            and permanent disability, to a compensation rate of $267.70, 
 
            that affirmative defenses are waived, that entitlement to 
 
            medical benefits is not in dispute and that defendants are 
 
            entitled to certain credits.
 
            
 
                 The issue to be resolved includes the nature of 
 
            claimant's permanent disability:  whether it be to a 
 
            scheduled member or to the body as a whole, and the extent 
 
            thereof.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Keith W. Fridlington, born in 1942, is 49 years of age 
 
            now and was 43 years of age on February 28, 1985.  He is a 
 

 
            
 
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            1960 high school graduate with no further formal training.  
 
            Mr. Fridlington has worked as a farmhand, a construction 
 
            laborer, in self-employment (carpentry, remodeling and 
 
            construction of steel and pole buildings) for some 20 years, 
 
            and, as an employee of 3M Company beginning in October 1984.
 
            
 
                 Claimant worked as an assistant slitter operator from 
 
            1984 until the date of injury, a job that involved 
 
            unwrapping and lining up large rolls of paper for processing 
 
            in a machine.  He was injured when a large roll (weighing 
 
            perhaps 1,000-2,000 pounds) was unexpectedly ejected from 
 
            the machine, striking him in the right leg from behind.  
 
            This caused a crush injury involving a displaced comminuted 
 
            fracture of the proximal tibia and fibula.
 
            
 
                 Claimant was treated with traction and then a long leg 
 
            cast for approximately six months.  He returned to work as a 
 
            rewind operator on a part-time basis in mid-1985, gradually 
 
            increasing his hours to a full-time position.  Claimant 
 
            worked for some 15 or 16 months until March 25, 1987, when 
 
            he underwent arthroscopic surgery on the right knee due to 
 
            continued pain and stiffness in the knee.  He also developed 
 
            low back pain during this time.  The treating surgeon, 
 
            Donald Berg, M.D., described the operation as arthroscopic 
 
            examination with arthroscopic removal of softened cartilage 
 
            under the patella and some soft tissue bands and synovium.  
 
            Post-operative diagnosis was of chondromalacia of the 
 
            patella with some adhesive bands in the knee and some 
 
            synovitis.
 
            
 
                 Dr. Berg performed further surgery on July 21, 1987, 
 
            described as neurolysis of the peroneal nerve, right lower 
 
            leg.  Pre- and post-operative diagnoses were of entrapment 
 
            of the peroneal nerve, posterior aspect of the right leg, 
 
            secondary to crush injury involving fracture of the proximal 
 
            tibia and fibula.
 
            
 
                 On November 2, 1987, Dr. Berg opined that claimant had 
 
            sustained a 28 percent permanent physical impairment of the 
 
            right leg, noting loss of strength, limited range of motion, 
 
            atrophy and a shortening of the leg by some 1 and 1/2 
 
            centimeters.  Dr. Berg noted that burning sensation in the 
 
            leg and peroneal nerve pain distribution probably would not 
 
            change.  He recommended that claimant not return to work 
 
            requiring him to stand on concrete, but felt claimant would 
 
            be able to perform a sit-down job which involved minimal 
 
            walking.
 
            
 
                 Claimant's other primary treating physician has been 
 
            Marc Hines, M.D.  Dr. Hines first saw claimant on April 15, 
 
            1987.  On July 7, 1988, Dr. Hines suggested a number of work 
 
            restrictions under which claimant might return to work.  
 
            Those restrictions included not working at heights, no 
 
            repetitive climbing activities, no repetitive use of foot 
 
            controls with the right lower extremity, no repetitive 
 
            squatting or crawling, and no lifting above 50 pounds 
 

 
            
 
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            occasionally and 30 pounds repetitively.  Dr. Hines further 
 
            noted that standing for long periods of time without rest 
 
            would be very difficult, rest probably being needed every 
 
            hour if standing would be significant in a given job.
 
            
 
                 On November 2, 1988, Dr. Hines wrote:
 
            
 
                 The pain in his leg is not the only problem.  
 
                 Because of the change in his gait and the 
 
                 difficulty he has in walking, he has acquired 
 
                 difficulties with pain in his right leg, right hip 
 
                 and low back.  These problems, unfortunately, will 
 
                 all accompany the alteration in his gait and the 
 
                 use of his right leg and are leading to the 
 
                 arthralgias that he is suffering.  These, 
 
                 unfortunately since the leg will probably not be 
 
                 improved, are also permanent in character.  
 
                 Because of the difficulties he has-he has 
 
                 difficulty in bending over and removing his shoes.  
 
                 He has difficulties in sitting, lying down or 
 
                 standing for long periods because of these 
 
                 difficulties in his back particularly with 
 
                 standing, difficulties in his ankle, knee and 
 
                 lower back, particularly and most importantly, his 
 
                 ankle as well.  When he attempts to ambulate such 
 
                 as walking or climbing stairs or getting out of 
 
                 chairs, he must rest frequently when he is 
 
                 walking, he has great difficulty climbing stairs 
 
                 and some difficulty getting out of low chairs 
 
                 because of his problems.  He is currently only 
 
                 able to drive or ride for short periods and must 
 
                 get out to move about.  He has leg cramps that 
 
                 usually occur when he is in a car for any length 
 
                 of time.  Lifting is virtually impossible due to 
 
                 lower back pain and pain in the leg and ankle.
 
            
 
            (Exhibit 1, page 48)
 
            
 
                 Using the American Medical Association Guides to the 
 
            Evaluation of Permanent Impairment, Dr. Hines rated claimant 
 
            as having sustained a 10 percent impairment to the whole 
 
            person equivalent to a 24 percent impairment to the lower 
 
            extremity and an additional 5 percent impairment to the 
 
            whole person "secondary to claimant's low back and hip along 
 
            with skin changes in the lower extremity."
 
            
 
                 On February 1, 1989, Dr. Hines reiterated claimant's 
 
            restrictions, adding restrictions against prolonged walking, 
 
            repetitive bending and standing on concrete, even for a 
 
            moderately short period.
 
            
 
                 Dr. Hines has also recommended that claimant rest with 
 
            his leg elevated above his heart in order to improve his 
 
            problems with swelling in the lower extremity.  Dr. Hines' 
 
            records do not confirm claimant's impression that this would 
 

 
            
 
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            need to be done during working hours.
 
            
 
                 On September 9, 1990, claimant was seen by Gene Van 
 
            Zee, M.D.  Dr. Van Zee reported that change in position 
 
            caused significant spasm in the left lower lumbar region and 
 
            diagnosed chronic low back syndrome with some acute muscle 
 
            spasm.
 
            
 
                 Claimant was also evaluated in March 1990 at the Mayo 
 
            Clinic in Rochester, Minnesota, being seen by a team of 
 
            physicians.  Dr. Carl Chan of the Department of Physical 
 
            Medicine and Rehabilitation felt that claimant had 
 
            post-traumatic right lower extremity pain and mechanical low 
 
            back pain.  Diagnoses were:
 
            
 
                 1.  Status post tibia-fibula fracture with residual leg 
 
            length discrepancy, evidence of an old right deep peroneal 
 
            neuropathy, and right knee medial compartment narrowing;
 
            
 
                 2.  Mechanical low back pain.
 
            
 
                 Chart notes entitled "Neurologic Record," authored by 
 
            Dr. Bruce Evans, note the onset of low back pain eight 
 
            months after claimant returned to work secondary to 
 
            asymmetric leg length.
 
            
 
                 Gregory S. Peterson, M.D., of the Mayo Clinic, 
 
            testified by deposition on October 25, 1991.  Dr. Peterson 
 
            is a consultant at the Mayo Department of Physical Medicine 
 
            and Rehabilitation and is board certified.
 
            
 
                 Dr. Peterson indicated that he had measured claimant's 
 
            asymmetrical right leg as 9 millimeters shorter than the 
 
            left; this he attributed to the work injury.  However, he 
 
            felt the discrepancy to be so minor as to be still within 
 
            the range of normal.  As to causation of mechanical back 
 
            pain ("back pain with mechanical activities or movement of 
 
            the spine"), he testified that the literature was mixed, but 
 
            that the study he considered most significant found no 
 
            significant correlation between low back pain and leg length 
 
            discrepancies of up to either 1 or 1 and 1/2 centimeters, 
 
            the doctor being unable to recall which.  Dr. Peterson 
 
            considered it possible that claimant's leg length asymmetry 
 
            contributed to his low back pain, but did not think it 
 
            probable.  He believed two other conditions shown in the 
 
            x-rays, spina bifida occulta and slight lumbar curve 
 
            convexed to the left, were not related to low back pain.  
 
            Dr. Peterson was apparently unable to discover a cause for 
 
            claimant's low back pain.
 
            
 
                 Dr. Peterson would assign no specific medical 
 
            restrictions to claimant due to the back injury, although he 
 
            noted later in his deposition that subjective reactions vary 
 
            widely, and that one person might be very disabled by mild 
 
            mechanical low back pain and another person might have no 
 
            limitation.  He suggested medical restrictions relating to 
 
            the leg as limiting standing, repetitive squatting, stair 
 

 
            
 
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            climbing and ladder climbing.
 
            
 
                 After undergoing surgical treatment, claimant was not 
 
            offered further work by defendant 3M.  The rewind operator 
 
            job he had performed was merged into the assistant slitter 
 
            operator job and 3M had no positions available, given Mr. 
 
            Fridlington's medical restrictions.
 
            
 
                 Claimant has been essentially unemployed since his 
 
            surgery.  He applied for a few jobs while seeking job 
 
            insurance benefits [a weekly search for work is a 
 
            requirement for the receipt of job insurance benefits under 
 
            Iowa Code section 96.4(3)] but discontinued all such efforts 
 
            after his claim was denied, and has not sought employment 
 
            since.  He did work part time for a few weeks helping a 
 
            relative put siding on a house and has busied himself in a 
 
            small antique refinishing, restoration and resale business.  
 
            Because claimant lacks capital to operate such a business 
 
            full time, this enterprise might best be described as a 
 
            serious or working hobby.  Total sales last year were under 
 
            $3,000.  However, Mr. Fridlington is of the view that he 
 
            could pursue this line of endeavor on a full-time basis but 
 
            for the lack of capital investment.
 
            
 
                 Claimant currently complains of continuing back and leg 
 
            pain, recurrent ulcerations on the leg, psychological 
 
            symptoms such as anxiety, depression, sleep loss and 
 
            headaches, and reports that his activities are severely 
 
            curtailed.
 
            
 
                 Barbara Chaldy, a vocational rehabilitation consultant 
 
            who has worked with claimant at defendants' behest, felt 
 
            there were a number of jobs claimant could perform, even 
 
            given Dr. Hines' restrictions, including light-duty 
 
            carpentry, bench finishing and the like.  Interestingly, she 
 
            felt the jobs claimant was able to do included slitter 
 
            operator, which both claimant and defendant 3M agree he 
 
            cannot do, at least for this employer.  Ms. Chaldy was 
 
            apparently unaware of restrictions against concrete floors 
 
            suggested by Drs. Hines and Berg.  She agreed this would 
 
            affect her opinions, but did not specify how.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated to the existence of an 
 
            injury arising out of and in the course of employment.  They 
 
            agree on the extent of healing period and stipulate that the 
 
            injury caused permanent disability.  The primary fighting 
 
            issue in this case is whether claimant's injury should be 
 
            compensated as a scheduled member disability to the right 
 
            leg under Iowa Code section 85.34(2)(o), or as an industrial 
 
            disability to the body as a whole under 85.34(2)(u).
 
            
 
                 Claimant asserts two theories to "extend" this leg 
 
            injury into the body as a whole.  First, he asserts that the 
 
            swelling and edema problems in his leg constitute damage to 
 
            his "circulatory system," and that the circulatory system is 
 

 
            
 
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            a part of the body as a whole.  This theory is not 
 
            persuasive.  As defendants point out, an injury to the bones 
 
            or muscles of the leg does not constitute a body as a whole 
 
            injury on the theory that bones are part of the skeletal 
 
            system or muscles a part of the musculoskeletal system.  It 
 
            is the situs of the disability that is significant.
 
            
 
                 Second, claimant asserts that he developed disability 
 
            to the lower back as a remote result of the work injury and 
 
            that a back injury is compensable industrially.  This theory 
 
            is persuasive.
 
            
 
                 Where an individual suffers a compensable injury and 
 
            thereafter sustains further disability which is the 
 
            proximate result of the original injury, the further 
 
            disability is compensable.  Oldham v. Scofield & Welch, 222 
 
            Iowa 764, 266 N.W. 480 (1936).  If, then, claimant suffers 
 
            from a disabling back condition, and, if that condition 
 
            resulted from the original leg injury, the original injury 
 
            does extend to the body as a whole and must be compensated 
 
            industrially.
 
            
 
                 Thus, causation is in dispute as to the nature of 
 
            claimant's disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that his back symptoms are 
 
            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 Hosp., 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Claimant credibly testifies to back pain and indicates 
 
            that it did not preexist the work injury.  Dr. Peterson 
 
            essentially finds no disability to the back (although he 
 
            does not dispute that claimant subjectively experiences 
 
            pain) and has testified that there is a possibility, but not 
 
            a probability, that claimant's asymmetrical leg length 
 

 
            
 
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            contributes to his mechanical back pain.  A mere possibility 
 
            of the necessary causal nexus may be sufficient to meet 
 
            claimant's burden of proof where the evidence otherwise 
 
            shows that claimant did not suffer a disabling condition 
 
            prior to the injury and did afterwards.  Treating physician 
 
            Hines, on the other hand, opined that there is a direct 
 
            relationship between asymmetrical leg and his subsequent 
 
            back symptoms.  Be it noted that claimant's back conditions 
 
            began when he returned to work after his cast was removed 
 
            and did not preexist the injury.  Evaluating physician 
 
            Peterson appeared to largely base his opinion on one study 
 
            on a topic where the literature is, by his own description, 
 
            mixed.  That study apparently found no correlation between 
 
            leg length differences of either 1 or 1 and 1/2 centimeters, 
 
            although the doctor could not recall which measurement was 
 
            employed in the study.  Dr. Peterson measured claimant's leg 
 
            difference at 9/10 of a centimeter only, but Drs. Berg and 
 
            Hines have measured up to 1.5 centimeters difference.  It 
 
            should also be noted that Dr. Evans, also of the Mayo 
 
            Clinic, charted the onset of low back pain as secondary to 
 
            asymmetric leg length.
 
            
 
                 After considering these factors, it is found that the 
 
            opinions of Dr. Hines and Dr. Evans are more persuasive, 
 
            especially when coupled with the sequence of events (the 
 
            onset of back pain), the "possibility" of causal nexus 
 
            described by Dr. Peterson, and the lack of any other 
 
            mechanism for producing low back pain (it will be recalled 
 
            that Dr. Peterson testified that the other abnormalities 
 
            discovered radiographically were not related).  Claimant's 
 
            mechanical low back pain was caused by his asymmetrical leg 
 
            length, itself caused by the work injury and therefore a 
 
            direct sequela of the work injury.
 
            
 
                 But is the back pain disabling?  It is the disability 
 
            that is compensated, not the injury.  Dr. Hines has rated 
 
            impairment to the body as a whole directly attributable to 
 
            the back injury and, it appears that at least some of his 
 
            proposed restrictions are so related (for example, 
 
            restrictions against repetitive bending).  Claimant's 
 
            credible testimony of pain buttresses that conclusion.  Part 
 
            of claimant's total disability is attributable to his back 
 
            condition, so the entire injury must be compensated 
 
            industrially.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 

 
            
 
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                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Christensen v. Hagen, Inc., Vol. 1 No. 3 State 
 
            of Iowa Industrial Commissioner Decisions 529 (App. March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 
 
            State of Iowa Industrial Commissioner Decisions 654 (App. 
 
            February 28, 1985).
 
            
 
                 A number of factors militate in favor of increased 
 
            industrial disability.  These include claimant's age, as he 
 
            is in what would normally be considered his prime earning 
 
            years.  While claimant has a high school education, he has 
 
            received no formal training thereafter and his work history 
 
            is more typical of a blue collar worker than it is of a 
 

 
            
 
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            white collar worker.  He has work experience as a farmhand, 
 
            construction laborer, machine operator and carpenter.  Of 
 
            course, he also has additional skills that he has developed 
 
            through self-employment, including the ability to supervise 
 
            other workers, reading blueprints, estimating costs and the 
 
            like.  Still, the restrictions imposed by treating 
 
            physicians Hines and Berg seriously interfere with his 
 
            ability to accept work in any of the occupations in which he 
 
            has previous experience.  Even though claimant has not 
 
            established that he is required to elevate his foot over his 
 
            heart while at work, it is apparent that he will require 
 
            accommodations from any employer with respect to his ability 
 
            to alternate sitting and standing, at least to some degree.  
 
            3M, a relatively large employer and manufacturing concern, 
 
            has shown itself unable to return claimant to remunerative 
 
            work.  This itself is a factor showing increased industrial 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980); Pigneri v. Ringland-Johnson-Crowley, File No. 
 
            838742 (App. Decn., July 31, 1991).
 
            
 
                 Nonetheless, this observer tends to agree with Barbara 
 
            Chaldy that there are jobs claimant could still perform.  
 
            Very likely, claimant would be so employed now but for his 
 
            lack of motivation, a factor tending to diminish industrial 
 
            disability.  Claimant appears to be of at least average 
 
            intelligence and has proven himself capable of 
 
            self-employment in disparate fields:  construction and the 
 
            antique trade.  He has developed transferrable skills.
 
            
 
                 Still, it seems clear that claimant's earning capacity 
 
            has been severely diminished.  Considering these factors in 
 
            specific and the record otherwise in general, it is held 
 
            that claimant has sustained a permanent partial disability 
 
            equivalent to 50 percent of the body as a whole, or 250 
 
            weeks.  The parties have stipulated that permanent 
 
            disability benefits should commence on January 5, 1988.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant two hundred fifty 
 
            (250) weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred sixty-seven and 70/100 
 
            dollars ($267.70) per week commencing January 5, 1988 and 
 
            totalling sixty-six thousand nine hundred twenty-five and 
 
            00/100 dollars ($66,925.00).
 
            
 
                 Defendants shall have credit for benefits voluntarily 
 
            paid and, under Iowa Code section 85.38(2), for sick 
 
            pay/disability income totalling two thousand seventy-four 
 
            and 15/100 dollars ($2,074.15).
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 

 
            
 
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                 The costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lance A. Grotewold
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut Street
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803.1
 
                           Filed November 15, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KEITH W. FRIDLINGTON,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 788758
 
            3M,       :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            NORTHWESTERN NATIONAL INS.,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803.1
 
            Leg injury caused shortening of leg; altered gait caused 
 
            mechanical back pain, for which treating physician assigned 
 
            impairment rating and restrictions.  Back disability found 
 
            to be a sequela of the leg injury and entire injury was 
 
            compensated industrially.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
IN RE:  RICHARD BROMERT,     
 
          
 
HERITAGE MUTUAL INS. CO.,     
 
          
 
     Petitioner,    
 
vs.       
 
                                         File No. 788831
 
TRAUSCH CO.,       
 
n/k/a COMMERCIAL EQUIPMENT             A R B I T R A T I O N
 
COMPANY, INC., 
 
                                         D E C I S I O N
 
     Employer, 
 
          
 
and       
 
          
 
UNION MUTUAL INSURANCE CO.,  
 
FIREMAN'S FUND INSURANCE CO., 
 
LIBERTY MUTUAL INSURANCE CO.  
 
          
 
     Respondents.   
 
________________________________________________________________
 
                     STATEMENT OF THE CASE
 
 
 
This is a proceeding brought pursuant to Iowa Code section 85.21 by 
 
petitioner, Heritage Insurance Company, against Fireman's Fund 
 
Insurance, Liberty Mutual Insurance Companies and Union Insurance 
 
Company.  
 
 
 
The dispute centers around a 1985 workers' compensation claim.  
 
Petitioner afforded workers' compensation insurance coverage to Trausch 
 
Company, now known as Commercial Equipment Company, Inc., from March 1, 
 
1985 until April 8, 1985.  Respondent Union Insurance Company provided 
 
coverage from May 28, 1985 through June 1, 1986.  Fireman's Fund 
 
provided insurance coverage from August 1, 1986 through August 1, 1987. 
 
 
 
Liberty Mutual Insurance Company has provided workers' compensation 
 
insurance coverage to the employer from March 3, 1987 to the present.  
 
 
 
                        FINDINGS OF FACTS
 
 
 
The undersigned deputy, having reviewed all of the evidence received, 
 
finds the following facts:
 
 
 
Richard Bromert was employed by Trausch Company, now known as 
 
Commercial Equipment Company, for more than 17 years.  His job title 
 
was that of a working foreman, which required that he perform physical 
 
work, such as digging ditches, laying and soldering pipe, and carrying 
 
pipe, cylinders and tanks.  
 
 
 
In March of 1985, while working on a job site, Mr. Bromert fell 12 to 
 
14 feet from a ladder.  He received initial treatment from the 
 
emergency room at St Luke's Hospital in Cedar Rapids, Iowa.  The 
 
hospital took x-rays of Mr. Bromert's cervical spine, right ribs, right 
 
hip and right wrist.  (Joint Exhibit 1, pp. 1_3)  Eventually, he came 
 
under the care of Douglas Reagan, M.D., an orthopaedic specialist, who 
 
performed surgery on the right wrist on June 27, 1985.  (Jt. Ex. 1, pp. 
 
4-9)  Claimant received ongoing medical treatment until December 22, 
 
1985, when he was released from care by Douglas Reagan, M.D.   No 
 
activity restrictions were placed upon claimant, and no impairment 
 
ratings were offered at this time.  (Jt. Ex. 1, pp. 10-19)  
 

 
 
 
 
 
 
 
Claimant returned to work on December 23, 1985, and performed the same 
 
job duties as he was performing at the time of his March, 1985 injury.  
 
 
 
On March 5, 1986, claimant returned for treatment of a painful left 
 
shoulder.  Dr. Reagan's notes include the following information:
 
   
 
Mr. Bromert returns for a new problem at this time, but on his 
 
return we have asked him how his hand is feeling....
 
   ....
 
   His new problem is that of painful left shoulder.  He is left handed 
 
and has problems with the left shoulder.  He states that since his 
 
return to work in the last part of December he has had increasing left 
 
shoulder pain.  This is mostly along the lateral joint line and also 
 
the biceps tendon area.  He feels the pain began when he fell from his 
 
original injury when he hurt his wrist, and has persisted since then, 
 
but his wrist has been more of a problem.
 
 
 
(Jt. Ex. 1, p. 20).
 
 
 
Follow-up treatment ensued during the next several months, and included 
 
injections, various prescription medications, and physical therapy.  
 
(Jt. Ex. 1, pp. 21-24)
 
 
 
At some point, questions arose as to whether claimant's shoulder and 
 
neck problems were associated with his initial fall.  Dr. Reagan 
 
responded that in light of claimant's history, "the shoulder injury is 
 
a result of his injury of March 1, 1985."  (Jt. Ex. 1, p. 24)
 
In October of 1986, Dr. Reagan offered the following opinion:
 
   
 
In March, 1986, the patient had increasing problems with his 
 
shoulder.  He states that from the original injury he had pain in the 
 
shoulder which was not very great and that it just recently began to 
 
flare up.  At that point, subacromial bursitis was suspected.  He 
 
subsequently had conservative management for the shoulder.  On May 7, 
 
1986, he had an injection which did give him some improvement.  He 
 
continued then, on May 28, with Feldene and physical therapy.  He 
 
continues to have shoulder pain which is mild.
 
   
 
Based on his history, I feel that this is work related probably 
 
caused by his fall and aggravated by his return to work.
 
 
 
(Jt. Ex. 1, p. 26).
 
 
 
Heritage continued to pay for medical benefits for treatment to the 
 
left shoulder.  
 
 
 
Mr. Bromert continued to experience difficulty with the left shoulder, 
 
and sought additional treatment from Dr. Reagan.  In November of 1986, 
 
results of an arthrogram of the shoulder suggested a tear in the 
 
rotator cuff. (Jt. Ex. 1, pp. 27, 29)  Conservative treatment to the 
 
shoulder continued during the next several months, and claimant 
 
continued to work.  In November of 1988, claimant underwent surgery to 
 
the left shoulder.  (Jt. Ex. 1, pp. 30-42)  Heritage continued to pay 
 
for medical benefits, and paid healing period benefits to claimant for 
 
the time he was off of work, recovering from the surgery.  This is the 
 
first time claimant missed work due to the left shoulder condition.
 
 
 
On January 26, 1989, claimant was released to return to work, and was 
 
restricted from lifting more than five pounds with his left upper 
 
extremity.  (Jt. Ex. 1, p. 44)  Once Mr. Bromert returned to work, he 
 
continued to see Dr. Reagan due to persistent neck and left shoulder 
 
problems.  Further testing was recommended, and an EMG demonstrated 
 
carpal tunnel syndrome and ulnar tunnel syndrome on the left side.  
 
Claimant was referred for more physical therapy treatment. (Jt. Ex. 
 
45-76)
 
 
 
In August of 1990, Heritage sought a second opinion from John Koch, 
 
M.D. (Jt. Ex. 1, 77-81)  A summary is provided at page 83 of joint 
 
exhibit 1:
 
   
 
   Mr Bromert's difficulties were distinctly identified in my 
 
communication to you, indicating problems in the neck, shoulder and 
 
wrist.  My communication also indicated that only the wrist difficulty 
 
was related to the March 1, 1985 injury.
 
 
 
...If you are only interested in the impairment as related to the March 
 
1985 injury, then you should focus attention to the impairment of the 
 

 
 
 
 
 
 
 
right upper extremity as a result of fracture of the right carpal 
 
navicular, which had been treated by the surgery.  If you are 
 
interested in effects that result from aggravation by work, you would 
 
tend to those features relative to the cervical spine and the shoulder.
 
In November of 1990, Heritage stopped paying claimant workers' 
 
compensation benefits of any and all kind.  
 
 
 
In April of 1991, Dr. Reagan opined that Mr. Bromert had sustained a 12 
 
percent permanent partial impairment to the body as a whole due to the 
 
left shoulder problem and subsequent surgery.  
 
 
 
In April of 1992, Heritage and Mr. Bromert entered into an agreement 
 
for settlement, wherein Heritage paid 125 weeks of permanent partial 
 
disability benefits.  The date of the last payment was November 14, 
 
1994 according to the settlement documentation.  The specific terms of 
 
the agreement can be found at joint exhibit 7.
 
 
 
Simultaneously, Heritage filed a motion pursuant to Iowa Code section 
 
85.21, which was approved by the agency, regarding their right to 
 
reimbursement of benefits paid.  (Jt. Ex. 6)
 
 
 
On November 12, 1992, Heritage filed a petition with the division of 
 
industrial services.  Pursuant to Iowa Code section 85.21, Heritage 
 
requests reimbursement of benefits paid for the left shoulder from 
 
subsequent workers' compensation carriers.  Heritage argues that the 
 
shoulder injury did not arise out of and in the course of Mr. Bromert's 
 
work during the time it provided workers' compensation coverage.  
 
Union and Liberty Mutual have denied any responsibility for any 
 
reimbursement(s), and argue that no compensable injury occurred during 
 
their coverage periods, and/or that Heritage failed to file a claim 
 
within the applicable statute of limitations, which they further argue 
 
is two years from the date of the injury.
 
 
 
Mr. Bromert has given one recorded statement (dated March 13, 1985 
 
[transcribed October 10, 1994]); one sworn statement (dated February 
 
26, 1992); and one deposition (dated November 17, 1994) with respect to 
 
this case.  
 
 
 
In his initial statement, which was 12 days after the accident, Mr. 
 
Bromert indicated that due to the fall at work, he had injured his 
 
right wrist, and suffered from pain in the groin area.  There is no 
 
mention of left shoulder pain, or injury to the left shoulder.  (Jt. 
 
Ex. 3).
 
 
 
In his sworn statement, taken almost seven years after the work 
 
incident, claimant stated that he believed he injured his left shoulder 
 
when he fell on March 1, 1985.  (Jt. Ex. 4, pp. 41_43).    
 
 
 
In his deposition, Mr. Bromert reiterated that he believed the left 
 
shoulder problems were caused by the fall.  (Jt. Ex. 5, p. 33)
 
Douglas Reagan, M.D., the authorized treating physician in the case, 
 
was deposed on November 23, 1994.  He confirmed his belief that 
 
claimant's shoulder complaints and physical problems were not caused by 
 
the March 1, 1985 injury.  Dr. Reagan bases his opinion primarily on 
 
the fact that the medical records do not reflect any shoulder 
 
complaints from Mr. Bromert prior to March 5, 1986, which is the date 
 
Mr. Bromert sought treatment for the shoulder from Dr. Reagan.  (Jt. 
 
Ex. 2, p. 34)
 
 
 
Heritage entered into a full commutation settlement with Mr. Bromert in 
 
April of 1992.  Under the terms of the agreement, Heritage agreed to 
 
pay claimant 125 weeks of permanent partial disability benefits.  
 
Heritage continued to deny that it was the insurance carrier 
 
responsible for payment of any workers' compensation benefits due to 
 
claimant for the left shoulder.  (jt. ex. 7).    
 
 
 
While the petitioner, Heritage admits that the handling of this 
 
particular claim was substandard, the undersigned is unable to find 
 
fault with the overall manner in which the petitioner monitored the 
 
claim.  The injured worker was paid workers' compensation benefits.  
 
Iowa Code section 85.21 provides an avenue to reimbursement to a 
 
company who should not have paid benefits on a claim.    
 
  
 
  Claimant was involved in traumatic accident on March 3, 1985.  He was 
 
treated for almost one year for injuries to his right wrist.  He was 
 
off of work until December of 1985, when he returned to his regular job 
 
duties.  Prior to his return to work, and even after his return to 
 

 
 
 
 
 
 
 
work, he received follow-up medical treatment.  Not one medical record 
 
entry cites to, points to, or references in any way shape or form that 
 
claimant was complaining of left shoulder pain or discomfort.  In his 
 
initial statement, claimant did not indicate that he had hurt his left 
 
shoulder in the fall.  The emergency room records do not make any 
 
references to a painful left shoulder.  No examination was performed on 
 
the left shoulder, and no x-rays were taken of the left shoulder.  
 
 
 
               ANALYSIS AND CONCLUSIONS OF LAW
 
 
 
The first issue to address is whether claimant sustained an injury to 
 
his left shoulder on March 3, 1985 or on March 1, 1986.
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. App. P. 14(f).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
All parties reminded this writer of two significant cases. 
 
In cases involving the cumulative injury rule, the Supreme Court has 
 
determined that an injury occurs when an employee, because of pain or 
 
physical inability, can no longer work.  McKeever Custom Cabinets v. 
 
Smith, 379 N.W.2d 368, 374 (Iowa 1985). 
 
 
 
The manifestation of an injury can occur when an injured worker first 
 
seeks medical treatment for the physical ailment.  Oscar Mayer Foods 
 
Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992).   However, the Court 
 
rejected the notion that the manifestation of a disability will always 
 
be the date on which an injured worker first seeks medical consultation 
 
for a physical condition, "since by their very nature, 
 
repetitive-trauma injuries often will take years to develop to the 
 
point where they will constitute a compensable workers' compensation 
 
injury."  Tasler at 827-28.  
 
 
 
Following a somewhat lengthy period of recovery from his traumatic 
 
accident at work, claimant returned to work in December of 1985.  He 
 
was unable to fully use his right hand and upper extremity due to the 
 
surgery which had been performed on his right wrist.  As a result, he 
 
used his left arm more in order to fully complete his job tasks. 
 
 
 
Claimant never sought treatment for the left shoulder until March of 
 
1986, a full year after the fall from the ladder which produced the 
 
broken right wrist.  While the undersigned recognizes that when workers 
 
sustain traumatic injuries that require immediate attention (such as a 
 
broken wrist) they may not mention other physical complaints that are 
 
not as serious, but she is not convinced that for one year, Mr. Bromert 
 
felt pain in his left shoulder, and then finally decided to seek 
 
medical treatment.  
 
 
 
Additionally, in Mr. Bromert's initial statement, he mentions other 
 
injuries which he sustained in the fall.  He does not mention any 
 
physical complaints with respect to his shoulder.  
 
 
 
It was not until Mr. Bromert returned to work, in a full duty capacity, 
 
that his shoulder began to bother him.  In March of 1986, the pain 
 
became so bad that he sought medical treatment.  However, claimant was 
 
able to continue to perform all of his regular job duties.
 
 
 
To the undersigned, the injury involving Mr. Bromert's left shoulder is 
 
a classic cumulative trauma injury.  Once claimant returned to his 
 
regular job duties in December of 1985, he was required to perform 
 
extensive overhead work, such as installing pipes.  He performed these 
 
job duties for more than three years, and eventually, missed work due 
 
to the repetitive traumas.  In November of 1988, claimant's left 
 
shoulder became so painful, and was not responding to several years' 
 
worth of conservative treatment, that Mr. Bromert was required to 
 
undergo surgery, and take time off of work.  As a result, the injury 
 
date, pursuant to both McKeever and Tasler, is November 15, 1988. 
 

 
 
 
 
 
 
 
Even Dr. Reagan stated that he believed claimant' work, once claimant 
 
returned to work in December of 1985, aggravated a preexisting 
 
condition to the point that claimant was no longer able to work, and 
 
had to undergo surgery.  As the agency has stated so many times, a 
 
claimant who has a preexisting condition or disability that is 
 
materially aggravated, accelerated, worsened or lighted up so that it 
 
results in a disability, is entitled to recover workers' compensation 
 
benefits for the aggravation.  See, Nicks v. Davenport Produce Co., 254 
 
Iowa 130, 115 N.W.2d 812 (1962).  
 
 
 
The undersigned has also looked to what she feels is the most credible 
 
statement given by Mr. Bromert, which is his initial statement taken 
 
seven days after the traumatic fall.  He did not indicate that he felt 
 
any pain or discomfort in the left shoulder.  Likewise, he did not 
 
relate any pain or discomfort in the left shoulder during his initial, 
 
and follow-up visits to the emergency room personnel, or any subsequent 
 
authorized treating physicians.  
 
 
 
As a result, the undersigned finds that the evidence supports a finding 
 
that claimant's left shoulder injury was a cumulative injury which is 
 
attributed to his work duties, and the manner in which he was 
 
performing his work duties when he returned to work in December of 
 
1985.  
 
 
 
The next issue to address is whether Heritage filed its petition for 
 
reimbursement of benefits paid within the applicable statute of 
 
limitations. 
 
 
 
Iowa Code section 85.21 governs reimbursement of benefits, and states, 
 
in relevant part:
 
   
 
   3.  When liability is finally determined by the industrial 
 
commissioner, the commissioner shall order the carriers or employers 
 
liable to the employee or to the employee's dependent or legal 
 
representative to reimburse the carriers or employers which are not 
 
liable but were required to pay benefits.  Benefits paid or reimbursed 
 
pursuant to an order authorized by this section do not require the 
 
filing of a memorandum of agreement.  However, a contested case for 
 
benefits under the chapter or under chapter 85A or 85B shall not be 
 
maintained against a party to a case or dispute resulting in an order 
 
authorized by this section unless the contested case is commenced 
 
within three years from the date of the last benefit payment under the 
 
order.  The commissioner may determine liability for the payment of 
 
workers' compensation benefits under this section.
 
 
 
The only statute of limitations which can apply pursuant to this 
 
section is a three-year window from the date of the last payment.  
 
Clearly, Heritage filed its petition within the applicable time.  
 
As a side issue, it is argued that Heritage seeks reimbursement for 
 
benefits paid prior to the filing of the section 85.21 application.  
 
 
 
The undersigned is unable to find any provision, either under the 
 
applicable statute, or in case law, which mandates that the application 
 
must be signed, filed and approved before an insurance company's right 
 
to reimbursement is valid.  As a result, Heritage shall be reimbursed 
 
for all benefits paid for the left shoulder which were not paid during 
 
the time Heritage provided insurance to the employer.  
 
 
 
What is somewhat troubling to the undersigned is that the responsible 
 
party, Liberty Mutual Insurance Company had no input as to the terms of 
 
the settlement.  However, there was no indication that any of the 
 
parties involved in the 85.21 petition believed that the actual terms 
 
and amount of the settlement were unfair or excessive.  One can only 
 
conclude, then, that all parties felt the terms of the settlement, and 
 
the money received by Mr. Bromert were fair and reasonable. 
 
 
 
                               ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That claimant sustained a new injury on November 15, 1988; 
 
 
 
That respondent, Liberty Mutual Insurance Company was the insurance 
 
carrier for Trausch/Commercial Equipment Company at this time; 
 
 
 
That Heritage Mutual Insurance Company filed its petition within the 
 
applicable statute of limitations. 
 
 
 
That Heritage shall be reimbursed for payments made with respect to the 
 
left shoulder; 
 

 
 
 
 
 
 
 
Signed and filed this ____ day of December, 1994.      
 
                           ________________________________        
 
                           PATRICIA J. LANTZ        
 
                           DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr Roger L Ferris
 
Attorney at Law
 
1900 Hub Tower
 
699 Walnut St
 
Des Moines IA 50309
 
 
 
Mr James C Huber
 
Attorney at Law
 
500 Liberty Bldg
 
Des Moines IA 50309
 
 
 
Mr Cecil L Goettsch
 
Mr Steven M Augspurger
 
Attorneys at Law
 
801 Grand Ave  Ste 3700
 
Des Moines IA 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  5-4200
 
                                  Filed December 29, 1994
 
                                  PATRICIA J. LANTZ
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
IN RE:  RICHARD BROMERT,     
 
          
 
HERITAGE MUTUAL INS. CO.,     
 
          
 
     Petitioner,    
 
vs.       
 
                                        File No. 788831
 
TRAUSCH CO.,       
 
n/k/a COMMERCIAL EQUIPMENT          A R B I T R A T I O N
 
COMPANY, INC., 
 
                                         D E C I S I O N
 
     Employer, 
 
          
 
and       
 
          
 
UNION MUTUAL INSURANCE CO.,  
 
FIREMAN'S FUND INSURANCE CO., 
 
LIBERTY MUTUAL INSURANCE CO.  
 
          
 
     Respondents.   
 
________________________________________________________________
 
5-4200
 
Responsible insurance company ordered to reimburse workers' 
 
compensation benefits paid by another insurance company pursuant to 
 
Iowa Code section 85.21.
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 
 
 LINDA FIGLAND, Surviving
 
 Spouse of Chester Figland,
 
                                             FILE NO. 788896
 
      Claimant,
 
                                              A P P E A L
 
 
 
                                             D E C I S I O N
 
 ACE LINES, INC.,
 
 
 
      Employer,
 
 
 
 and
 
 
 
 LIBERTY MUTUAL INSURANCE CO.
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
 
 
 
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal.
 
 
 
                              ISSUES
 
 
 
      The issues on appeal are: Whether claimant has proved that 
 
 claimant~s decedent sustained an injury (heart attack) that arose 
 
 out of and in the course of his employment.
 
 
 
                         FINDINGS OF FACT
 
 
 
      The findings of fact contained in the proposed agency 
 
 decision filed June 14, 1990 are adopted as set forth below. 
 
 Segments designated by asterisks (*****) indicate portions of the 
 
 language from the proposed agency decision that have been 
 
 intentionally deleted and do not form a part of this final agency 
 
 decision. Segments designated by brackets ([ ]) indicate language 
 
 that is in addition to the language of the proposed agency 
 
 decision.
 
 
 
 On February 7, 1985, Chester Figland, decedent, died of a heart 
 
 attack. At the time of his death, he was 47 years of age and 
 
 employed as an over-the-road semi truck driver with Ace Lines, 
 
 Inc. Decedent was survived by his wife of 29 years, Linda Figland, 
 
 and four children. All of the children had reached their majority 
 
 and were living outside of the home at the time of death. 
 
 Claimant',s sole source of support was her husband at the time of 
 
 his death. Claimant and decedent were living together as man and 
 
 wife at the time of death. Claimant has not remarried and is 
 
 currently working in a factory earning $7.00 an hour.
 
 FIGLAND V. ACE LINES, INC.
 
 Page 2
 
 
 
 
 
 Decedent worked for Ace from December 1975, as an "owneroperator" 
 

 
 
 
 
 
 until his death. Decedent's usual route was in the Midwest and 
 
 usually was home on weekends. Decedent normally drove by himself. 
 
 Decedent was very obese, weighing close to 300 pounds at the time 
 
 of death. However, this was not unusual for decedent as he weighed 
 
 approximately 260 to 270 pounds for over 30 years prior to his 
 
 death. Decedent was advised on more than one occasion by his 
 
 physicians to lose weight.
 
 
 
 In 1979, decedent had a heart attack resulting in a small 
 
 infarction or death of a small portion of his heart muscle. He 
 
 received treatment at that time from Gene Van Zee, M.D., and a 
 
 cardiologist, Liberato Iannone, M.D. Decedent was off work for six 
 
 weeks after this attack but returned to full duty. Claimant 
 
 weighed 272 pounds at the time of this heart attack. Decedent quit 
 
 smoking after this attack but resumed smoking in 1983 or 1984. 
 
 Decedent also had a history of high blood pressure. Decedent 
 
 remained under the care of Dr. Van Zee after recovery from the 
 
 1979 attack. According to DOT physicals, decedent was on 
 
 medication for his heart problems between 1979 and the date of his 
 
 death. In his last physical, decedent indicated to the physician 
 
 that he saw Dr. Van Zee every three months.
 
 
 
 On January 28, 1985, decedent was treated for a rib injury when a 
 
 truck tire exploded and he was taken off work. According to 
 
 claimant, decedent decided on his own to return to work despite 
 
 the fact that he was not fully recovered from this injury. 
 
 Decedent, at that time, stated that he needed the money and wanted 
 
 to return to work. Decedent left home for his last road trip on 
 
 February 3, 1985, at 6:30 p.m. He drove to Arkansas and arrived at 
 
 3:30 a.m. on February 4, 1985. He left at 1:00 p.m. on February 4, 
 
 1985 and arrived in Delhi, Louisiana at 7:30 p.m. the same day. He 
 
 left Delhi at 9:30 a.m. on the next day, February 5, 1985 and 
 
 drove nine and one half hours stopping at midnight. The next 
 
 morning, February 6, 1985, he left at 8:30 a.m. and arrived in 
 
 Indianapolis, Indiana at 5:00 p.m.
 
 
 
 Upon his arrival in Indianapolis, decedent parked his truck at 
 
 Kroger Grocery Warehouse where he was to unload the next morning. 
 
 His load at the time was 500 boxes of toilet paper, each box 
 
 weighing approximately 37 pounds. On the night of February 6, 
 
 1985, decedent telephoned claimant explaining that he had to drive 
 
 on ice and rain that day and had blown a tire on the truck. He 
 
 said that he was tired but expressed no other physical complaints. 
 
 He then spent the night in his sleeper compartment which was 
 
 heated.
 
 
 
 The morning of February 7, 1985, was very cold, approximately two 
 
 degrees Fahrenheit and windy. However, the dock at Kroger was 
 
 enclosed. The temperature inside the dock area was approximately 
 
 35 degrees Fahrenheit. An office area in the dock was further 
 
 enclosed and the temperature in this area was 65 to 70 degrees 
 
 Fahrenheit. Decedent had taken with him two winter coats and was 
 
 wearing one of these coats when he went inside the dock area that 
 

 
 
 
 
 
 
 
 morning. In the unloading process that morning at
 
 FIGLAND V. ACE LINES, INC.
 
 Page 3
 
 
 
 
 
 Kroger, semi truck drivers were expected to unload the boxes on 
 
 the truck placing the boxes onto pallets furnished by the dock 
 
 workers. Dock workers would then remove loaded pallets from the 
 
 truck using forklift trucks.
 
 
 
      Prior to the scheduled time to begin unloading, 7:00 a.m., 
 
 decedent had partially loaded a pallet with boxes. He then was 
 
 called into the office area by the dock supervisor for Kroger, 
 
 Hank Whitten, to process the load's paperwork. While in the 
 
 office, decedent was observed by Whitten and other Kroger 
 
 employees to be short of breath, pale and sick. Decedent 
 
 complained of chest pains. Upon inquiry, decedent explained that 
 
 he had a heart attack six years prior and that cold weather 
 
 affected him that way. Decedent said that he would be all right as 
 
 soon as he got the cold air out of his lungs. Whitten suggested 
 
 that decedent sit down and relax. [In a statement taken the day 
 
 after decedent's death Whitten indicated that decedent seemed "a 
 
 little reluctant" to sit down. (Exhibit 11)] Decedent initially 
 
 refused but was later observed resting in the office by a forklift 
 
 driver, Bob Niedenthal. [Niedenthal corroborated that Whitten 
 
 suggested decedent sit down and relax.]
 
 
 
 Decedent then left the office when the dock crew began working at 
 
 7:00 a.m. ***** Niedenthal was assigned to be decedent's forklift 
 
 driver that morning and he subsequently removed the loaded pallet 
 
 with approximately 15 to 20 boxes from behind decedent's trailer. 
 
 When Niedenthal returned a short time later to see if decedent had 
 
 loaded another pallet, he noticed decedent down on the floor of 
 
 the trailer in apparent distress. He then called for help and 
 
 Kroger's emergency medical technician arrived at the scene. A few 
 
 minutes later the fire department and paramedics arrived and all 
 
 worked to revive decedent. Unfortunately, these efforts failed and 
 
 decedent was pronounced dead at 8:59 a.m.
 
 
 
 ***** Decedent had a preexisting heart condition and 
 
 arteriosclerosis which narrowed the opening of the right main 
 
 coronary artery. ***** A blood clot developed at this opening 
 
 which almost completely blocked the blood supply to a large 
 
 portion of the heart. *****
 
 
 
 
 
 
 
 [Claimant testified in her deposition that decedent was not under 
 
 any unusual stress prior to leaving on his last trip (Ex. 1, pp. 
 
 24-25). She also testified that the decedent felt he had to go on 
 
 the trip even though he had a rib injury (Ex. 1, p. 38).
 
 
 
 Following his heart attack in 1979 decedent was treated by Dr. 
 
 Iannone, a cardiologist. Dr. Iannone testified that he had last 
 
 seen deceden,t in 1979 (Ex. 5, p. 23). He indicated that the blood 
 
 clot in this heart attack occurred at a different place in the 
 
 artery than decedent's prior heart attack. He also stated that it 
 
 was difficult to say when the blood clot on the date of death 
 
 started forming. He opined that decedent's work was
 

 
 
 
 
 
 
 
 FIGLAND V. ACE LINES, INC.
 
 Page 4
 
 
 
 
 
 probably what caused the clot to form (Ex. 5, p. 17). He also 
 
 testified that the blood clot that occluded the right main 
 
 coronary artery of decedent on the date of his death was less than 
 
 a day old (Ex. 5, p. 13).
 
 
 
      Paul From, M.D., whose specialty is internal medicine, also 
 
 offered testimony in this case. He indicated it was difficult to 
 
 say when the occlusion actually occurred (Ex. 6, p. 21). He also 
 
 stated that he didn't know if the decedent's work caused his heart 
 
 attack (Ex. 6, p. 30).
 
 
 
 Neither Dr. Iannone nor Dr. From treated the decedent for the 
 
 heart attack that caused his death. Dr. Iannone's opinions of 
 
 causal connection can be given more weight because of his 
 
 specialty in cardiology. However, he indicated that the blood clot 
 
 that caused the myocardial infarction was less than a day old and 
 
 that it was difficult to say when it started forming.]
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
      The claimant has the burden of proving by a preponderance of 
 
 the evidence that the alleged injury actually occurred and that it 
 
 arose out of and in the course of employment. McDowell v. Town of 
 
 Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. 
 
 Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out 
 
 of" refer to the cause or source of the injury. The words "in the 
 
 course of" refer to the time, place and circumstances of the 
 
 injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure 
 
 v. Union Count~, 188 N.W.2d 283 (Iowa 1971).
 
 
 
 Determining whether a heart attack superimposed upon a preexisting 
 
 circulatory or heart condition arose out of employment is divided 
 
 into two parts: the legal test and the medical test. Under the 
 
 legal test the law defines what kind of exertion satisfies the 
 
 test of arising out of the employment. The exertion may be 
 
 physical or emotional. Duffield v. Iowa State Penitentiary, Appeal 
 
 Decision, September 21, 1988, file no. 771083; Swalwell v. William 
 
 Knudson & Son. Inc., II Iowa Industrial Commissioner Report 385 
 
 (App. 1982). Under the medical (factual) test, the doctors must 
 
 say whether the exertion in fact caused the heart attack. Both 
 
 tests must be met. See lB Larson Workmen's Compensation Law,  
 
 38.83(a) at 7-312 through 319.
 
 
 
 There are two or three legal standards in Iowa which define the 
 
 kind of exertion necessary to satisfy the legal test of arising 
 
 out of employment. The court in Sondaq v. Ferris Hardware, 220 
 
 N.W.2d 903, 905, (Iowa 1974), describes two standards:
 
 
 
    In the first situation the work ordinarily requires heavy 
 
 exertions which, superimposed on an alreadydefective heart, 
 
 aggravates or accelerates the condition, resulting in compensable 
 
 injury. ...
 
 FIGLAND V. ACE LINES, INC.
 
 Page 5
 
 
 
 
 
 ... See lA Larson's Workmen's Compensation Law  38.83, p. 7-172:
 
 
 
 
 
 
 
 "If there is some personal causal contribution in the form of a 
 
 previously weakened or diseased heart, the employment contri
 

 
 
 
 
 
 
 
 
 
 bution must take the form of an exertion greater than that of 
 
 nonemployment life. * * * Note that the comparison is not with 
 
 this employee's usual exertion in his employment but with the 
 
 exertions of normal nonemployment life of this or any other 
 
 person.~' (Emphasis in the original.)
 
 
 
 (Citations omitted.)
 
 
 
    In the second situation compensation is allowed when the 
 
 medical testimony shows an instance of unusually strenuous 
 
 employment exertion, imposed upon a preexisting diseased 
 
 condition, results in a heart injury.
 
 
 
      Athird possible legal standard comes from language in 
 
 Sondag, 220 N.W.2d 903, and Varied EnterPrises, Inc. v. Sumner, 
 
 353 N.W.2d 407, 409 (Iowa 1984).
 
 
 
 This challenge appears to be tied to our reference in Sondag, 220 
 
 N.W.2d at 905, to the following observations expressed in lA A. 
 
 Larson, The Law of Workmen's Compensation section 38.64(c), at 7-
 
 145 (1972):
 
 
 
 The most obvious relevance of this element [continuing exertion 
 
 after symptoms] is in showing causal connection between the 
 
 obligations of the employment and the final injury; for if the 
 
 workman, for some reason, feels impelled to continue with his 
 
 duties when, but for these duties, he could and would have gone 
 
 somewhere to lie down at once, the causal contribution of the 
 
 employment to the aggravation of the condition is clear.
 
 
 
      The first issue to be determined in deciding the instant 
 
 case is whether claimant has proved that one of the standards of 
 
 the legal test has been satisfied.
 
 
 
 The first standard of the legal test is whether the decedent's 
 
 work exertion was greater than normal nonemployment life. The 
 
 comparison is not with decedent's usual exertion in his 
 
 employment but with the exertions of normal nonemployment life of 
 
 this or any other person. lB Larson, Workmen's Compensation Law, 
 
 ~ 38.83(b) 7-321. Decedent moved 15 to 20
 
 FIGLAND V. ACE LINES, INC.
 
 Page 6
 
 
 
 
 
 boxes of product weighing approximately 37 pounds each. These 
 
 boxes were placed on pallets adjacent to the boxes. The 
 
 temperature in the work area was approximately 35 degrees and it 
 
 was out of the wind. The decedent wore a jacket while performing 
 
 the work. The loading activity occurred in about five minutes. 
 
 This work exertion was not strenuous. Normal nonemployment life 
 
 has some exertion. Life is not normally devoid of physical 
 
 activity. The product in this case was moved a short distance. 
 
 This agency has previously held that loading bundles ranging in 
 
 weight from 45 pounds to 78 pounds at the rate of approximately 
 
 one bundle every one and one-half minutes for a period of an hour 
 
 was not exertion greater than nonemployment life. See Alexander v. 
 
 Great Plains BaG Corp., Appeal Decision, October 7, 1989, File No. 
 
 768340. It cannot be said from this record that decedent's work 
 
 activities on February 7, 1985 exceeded exertions of normal 
 
 nonemployment life. Claimant has not met the first standard of the 
 
 legal test.
 
 
 
      The second standard of the legal test is whether the 
 
 decedent's work exertions were greater than normal work. There is 
 

 
 
 
 
 
 
 
 very little in the record on what the decedent's normal work 
 
 exertions were. It appears that decedent was a truck driver who 
 
 would at times facilitate unloading the product he was hauling. 
 
 This work appears to involve loading product onto pallets. The 
 
 decedent was engaged in normal work activity for a short period of 
 
 time. His exertions on February 7, 1985 were not unusually 
 
 strenuous employment exertions. Claimant has not met the second 
 
 standard of the legal test.
 
 
 
 The third standard of the legal test is whether decedent felt 
 
 impelled to continue working after the onset of a possible heart 
 
 attack. There is no evidence that the decedent was forced or felt 
 
 a compulsion to continue working after the onset of symptoms. 
 
 Claimant testified that decedent was not under any unusual stress 
 
 prior to leaving on his last trip. Witnesses at the scene 
 
 indicated that decedent felt he would be better when he warmed up. 
 
 A Kroger employee (Whitten) suggested that decedent rest and go 
 
 some place warmer. The only possible evidence of any compulsion 
 
 felt by decedent was Whitten's statement that decedent felt a 
 
 "little reluctant" to sit down. The evidence does not show that 
 
 decedent was impelled to continue working after the onset of 
 
 symptoms. Claimant has not met the third standard of the legal 
 
 test.
 
 
 
 Claimant has not proved any of the three standards of the legal 
 
 test. Claimant has not met the legal test. Decedent's heart attack 
 
 did not arise out of and in the course of his employment.
 
 
 
 Claimant must satisfy both the legal and the medical tests. 
 
 Because claimant has not satisfied the legal test consideration of 
 
 the medical test will be for discussion purposes only.
 
 
 
 In the medical test claimant has the burden of proving by medical 
 
 evidence that the exertion in fact caused the heart
 

 
 
 
 
 
 
 
 FIGLAND V. ACE LINES, INC.
 
 Page 7
 
 
 
 
 
 attack. Dr. Iannone's opinion indicates that decedent's 
 
 myocardial infarction was probably caused by his work. The 
 
 greater weight of evidence in this case shows that the work 
 
 exertion in fact caused the decedent's heart attack. It is clear 
 
 that claimant's myocardial infarction was chronologically 
 
 proximate to his work exertions. The autopsy supports Dr. 
 
 Iannone's opinion.
 
 
 
      In summary, claimant met the medical (factual) test and but 
 
 not the legal test for proving that decedent's myocardial 
 
 infarction arose out of and in the course of his employment. 
 
 Decedent's myocardial infarction did not arise out of and in the 
 
 course of his employment.
 
 
 
        WHEREFORE, the decision of the deputy is reversed.
 
 
 
                                  ORDER
 
 
 
      THEREFORE, it is ordered:
 
 
 
 That claimant take nothing from these proceedings.
 
 
 
 That defendants shall pay the costs of this matter including the 
 
 transcription of the hearing.
 
 
 
 
 
 
 
      Signed and filed this 3RD day of September, 1992.
 
 
 
 
 
 
 
 
 
 
 
                                        BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. Phillip Vonderhaar
 
 Attorney at Law
 
 840 Fifth Ave
 
 Des Moines  IA  50309-1398
 
 
 
 Mr. James C. Huber
 
 Attorney at Law
 
 500 Liberty Bldg
 
 Des Moines  IA  50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 1100; 1108.10; 2202
 
                                                 Filed September 3, 1992
 
                                                 BYRON K. ORTON
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 
 
      LINDA FIGLAND, Surviving
 
      Spouse of Chester Figland,
 
 
 
           Claimant,                          FILE NO. 788896
 
 
 
      ACE LINES, INC.,                          A P P E A L
 
 
 
           Employer,                          D E C I S I O N
 
 
 
      and
 
 
 
      LIBERTY MUTUAL INSURANCE CO.,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
 
 
 
 
 1100: 1108.10: 2202
 
 
 
      Claimant must satisfy both a legal test and a medical test in 
 
 order to prove that a heart attack superimposed upon a preexisting 
 
 condition arose out of and in the course of employment. The legal 
 
 test can be satisfied by meeting one of three legal standards: 
 
 work exertion greater than nonemployment life; work exertion 
 
 greater than normal work exertion; or employee impelled to 
 
 continue exertion after onset of symptoms. The medical test is 
 
 satisfied if medical evidence shows that the exertion in fact 
 
 caused the heart attack.
 
 
 
 In this case claimant's decedent was a truck driver. He unloaded 
 
 approximately 15 boxes of product weighing approximately 35 pounds 
 
 each. The temperature in the work area was 35 degrees and out of 
 
 the wind. He did not feel impelled to continue work after the 
 
 onset of symptoms. Decedent's work exertions were not greater than 
 
 normal nonemployment life. Decedent's work exertions were not 
 
 greater than his normal work exertions.
 
 
 
 Testimony of a cardiologist who opined the work exertion caused 
 
 the heart attack met the medical test.
 
 
 
 Claimant met, medical (factual) test but not the legal test of 
 
 whether the decedent's heart attack arose out of and in the course 
 
 of his employement.
 
 
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA FIGLAND, Surviving
 
         Spouse of Chester Figland,
 
         
 
              Claimant,                                File No. 788896
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         ACE LINES, INC.,                              D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         JUN 14 1990
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,         IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Linda 
 
         Figland, claimant, against Ace Lines, Inc., employer (hereinafter 
 
         referred to as Ace), and Liberty Mutual Insurance Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of the death of claimant's spouse, Chester Figland 
 
         (hereinafter referred to as decedent) on February 7, 1985.  On 
 
         February 28, 1990, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.  At hearing, claimant objected 
 
         to the testimony of Gary Shilling.  This objection was sustained 
 
         at hearing but an offer of proof was allowed and Shilling 
 
         testified on the record. In her brief, claimant withdrew the 
 
         objection.  Therefore, the testimony of Gary Shilling was 
 
         received into the evidence and considered in arriving at this 
 
         decision.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  An employee/employer relationship existed between the 
 
         decedent and Ace at the time of death.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $241.98.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
               I.  Whether claimant's death on February 7, 1985, arose out 
 
         of and in the course of his employment with Ace.
 
         
 
              II.  The extent of claimant's entitlement to death and 
 
         burial benefits and related medical expenses.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:
 
         
 
              On February 7, 1990, Chester Figland, decedent, died of a 
 
         heart attack.  At the time of his death, he was 47 years of age 
 
         and employed as an over-the-road semi truck driver with Ace. 
 
         Decedent was survived by his wife of 29 years, Linda Figland, and 
 
         four children.  All of the children had reached their majority 
 
         and were living outside of the home at the time of death.  
 
         Claimant's sole source of support was her husband at the time of 
 
         his death. Claimant and decedent were living together as man and 
 
         wife at the time of death.  Claimant has not remarried and is 
 
         currently working in a factory earning $7.00 an hour.
 
         
 
              Decedent worked for Ace from December 1975, as an 
 
         "owner-operator" until his death.  Decedent's usual route was in 
 
         the Midwest and usually was home on weekends.  Decedent normally 
 
         drove by himself.  Decedent was very obese, weighing close to 300 
 
         pounds at the time of death.  However, this was not unusual for 
 
         decedent as he weighed approximately 260 to 270 pounds for over 
 
         30 years prior to his death.  Decedent was advised on more than 
 
         one occasion by his physicians to lose weight.
 
         
 
              In 1979, decedent had a heart attack resulting in a small 
 
         infarction of death of a small portion of his heart muscle.  He 
 
         received treatment at that time from Gene Van Zee, M.D., and a 
 
         cardiologist, Liberato Iannone, M.D.  Decedent was off work for 
 
         six weeks after this attack but returned to full duty.  Claimant 
 
         weighed 272 pounds at the time of this heart attack.  Decedent 
 
         quit smoking after this attack but resumed smoking in 1983 or 
 
         1984.  Decedent also had a history of high blood pressure. 
 
         Decedent remained under the care of Dr. Van Zee after recovery 
 
         from the 1979 attack.  According to DOT physicals, decedent was 
 
         on medication for his heart problems between 1979 and the date of 
 
         his death.  In his last physical, decedent indicated to the 
 
         physician that he saw Dr. Van Zee every three months.
 
         
 
              On January 28, 1985, decedent was treated for a rib injury 
 
         when a truck tire exploded and he was taken off work.  According 
 
         to claimant, decedent decided on his own to return to work 
 
         despite the fact that he was not fully recovered from this 
 
         injury. Decedent, at that time, stated that he needed the money 
 
         and wanted to return to work.  Decedent left home for his last 
 
         road trip on February 3, 1985, at 6:30 p.m.  He drove to Arkansas 
 
         and arrived at 3:30 a.m. on February 4, 1985.  He left at 1:00 
 
         p.m. on February 4, 1985 and arrived in Delhi, Louisiana at 7:30 
 
         p.m. the same day.  He left Delhi at 9:30 a.m. on the next day, 
 
         February 5, 1985 and drove nine and one half hours stopping at 
 
         midnight.  The next morning, February 6, 1985, he left at 8:30 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         a.m. and arrived in Indianapolis, Indiana at 5:00 p.m.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Upon his arrival in Indianapolis, decedent parked his truck 
 
         at Kroger Grocery Warehouse where he was to unload the next 
 
         morning.  His load at the time was 500 boxes of toilet paper, 
 
         each box weighing approximately 37 pounds.  On the night of 
 
         February 6, 1985, decedent telephoned claimant explaining that he 
 
         had to drive on ice and rain that day and had blown a tire on the 
 
         truck.  He said that he was tired but expressed no other physical 
 
         complaints. He then spent the night in his sleeper compartment 
 
         which was heated.
 
         
 
              The morning of February 7, 1985, was very cold, 
 
         approximately two degrees Fahrenheit and windy.  However, the 
 
         dock at Kroger was enclosed.  The temperature inside the dock 
 
         area was approximately 35 degrees Fahrenheit.  An office area in 
 
         the dock was further enclosed and the temperature in this area 
 
         was 65 to 70 degrees Fahrenheit.  Decedent had taken with him two 
 
         winter coats and was wearing one of these coats when he went 
 
         inside the dock area that morning.  In the unloading process that 
 
         morning at Kroger, semi truck drivers were expected to unload the 
 
         boxes on the truck placing the boxes onto pallets furnished by 
 
         the dock workers.  Dock workers would then remove loaded pallets 
 
         from the truck using forklift trucks.
 
         
 
              Prior to the scheduled time to begin unloading, 7:00 a.m., 
 
         decedent had partially loaded a pallet with boxes.  He then was 
 
         called into the office area by the dock supervisor, Hank Whitten, 
 
         to process the load's paperwork.  While in the office, decedent 
 
         was observed by Whitten  and other employees to be short of 
 
         breath, pale and sick.  Decedent complained of chest pains.  Upon 
 
         inquiry, decedent explained that he had a heart attack six years 
 
         prior and that cold weather affected him that way.  Decedent said 
 
         that he would be all right as soon as he got the cold air out of 
 
         his lungs.  Whitten suggested that decedent sit down and relax. 
 
         Decedent initially refused but was later observed resting in the 
 
         office by a forklift driver, Bob Niedenthal.
 
         
 
              Decedent then left the office when the dock crew began 
 
         working at 7:00 a.m. and finished loading the pallet he had 
 
         previously partially loaded.  Niedenthal was assigned to be 
 
         decedent's forklift driver that morning and he subsequently 
 
         removed the loaded pallet with approximately 15 to 20 boxes from 
 
         behind decedent's trailer.  When Niedenthal returned a short time 
 
         later to see if decedent had loaded another pallet, he noticed 
 
         decedent down on the floor of the trailer in apparent distress.  
 
         He then called for help and Kroger's emergency medical technician 
 
         arrived at the scene.  A few minutes later the fire department 
 
         and paramedics arrived and all worked to revive decedent.  
 
         Unfortunately, these efforts failed and decedent was pronounced 
 
         dead at 8:59 a.m.
 
         
 
              Decedent's heart attack began when he started to have chest 
 
         pains and shortness of breath while in the dock office.  Decedent 
 
         had a preexisting heart condition and arteriosclerosis which 
 
         narrowed the opening of the right main coronary artery.  At the 
 
         time of the attack, a blood clot developed at this opening which 
 
         almost completely blocked the blood supply to a large portion of 
 
         the heart.  When decedent chose to continue working after the 
 
         onset of symptoms, this was the worst thing that he could do.  
 
         The subsequent work caused more demand on the heart and need for 
 
         more blood and oxygen.  This worked aggravated and worsened the 
 
         damage process going on at the time of the start of the attack.  
 
         Although claimant had many preexisting problems relating to 
 
         excessive weight, high blood pressure, smoking and lack of 
 
         exercise which predisposed him for heart problems, the work was a 
 
         significant precipitating factor in his death.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In arriving at the findings of the previous paragraph with 
 
         reference to the development of the heart attack and its 
 
         connection to the claimant's work on February 7, 1985, the 
 
         undersigned gave greater weight to the opinions of Dr. Iannone, 
 
         the cardiologist, rather than those of Paul From, M.D.  Dr. 
 
         Iannone had treated claimant previously.  As a cardiologist he 
 
         had received greater training and has more expertise in the 
 
         treatment and diagnosis of cardiac problems.  Whereas Dr. From, 
 
         although head of a cardiology department, was an internist and 
 
         was not qualified to perform many of the standard heart treatment 
 
         procedures.  Also Dr. Iannone's views were clear.  He stated as 
 
         follows on page 30 of his deposition:  "So a ten- or twelve-hour 
 
         difference as to when the clot starts is not as relevant as the 
 
         precipitating factor that causes him to die, which is, in my 
 
         opinion, the work."  Dr. From's views, as discussed in his 
 
         deposition, were very unclear and equivocal.  Dr. From 
 
         essentially testified that he could not determine the cause of 
 
         claimant's heart condition but admitted that studies show that 
 
         work after the onset of symptoms does cause additional damage.
 
         
 
              From the evidence presented, the undersigned could not find 
 
         that the exertion decedent experienced while loading a few boxes 
 
         onto the pallet just before his death constitutes heavy exertion 
 
         or exertion more than would be experienced in every day 
 
         nonemployment-life.  Decedent only lifted at most 15 to 20 boxes 
 
         of product weighing 37 pounds each from the back of the truck 
 
         onto two pallets lying immediately adjacent to the boxes.
 
         
 
              The requested medical benefits, exhibit 13, which total 
 
         $670.70 are the expenses of decedent's last illness leading to 
 
         his death.  The Teamster's Local No. 147, Health and Welfare 
 
         Fund, paid $537.76 of this amount and the balance was paid by 
 
         claimant. Claimant paid more than $1,000.00 to bury her husband.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
               I.  Claimant has the burden by preponderance of the 
 
         evidence to show that her husband's death arose out of and in the 
 
         course of employment.   The words "out of" refer to the cause or 
 
         source of the injury.  The words "in the course of" refer to the 
 
         time and place and circumstances of the injury.  See Cedar Rapids 
 
         Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
         DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
         employer takes an employee subject to any active or dormant 
 
         health impairments, and a work connected injury which more than 
 
         slightly aggravates the condition is considered to be a personal 
 
         injury.  Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 
 
         106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the work injury is a cause of the claimed 
 
         disability.  A disability may be either temporary or permanent.  
 
         In the case of a claim for temporary disability, the claimant 
 
         must establish that the work injury was a cause of absence from 
 
         work and lost earnings during a period of recovery from the 
 
         injury. Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was a cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity. However, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 
 
         348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The question of causal connection is  essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In this jurisdiction, claimants or decedents or spouses of 
 
         claimants with a preexisting circulatory or heart condition has 
 
         been permitted, upon proper medical proof, to recover workers' 
 
         compensation under at least three concepts of work related 
 
         causations.  See generally Sondag v. Ferris Hardware, 220 N.W.2d 
 
         903 (Iowa 1974).  In the first situation, the work ordinarily 
 
         requires heavy exertions which, superimposed on an already 
 
         defective heart, aggravates or accelerates the condition 
 
         resulting in compensable injury.  In the second situation, 
 
         compensation is allowed when the medical testimony shows an 
 
         instance of unusually strenuous employment exertion as compared 
 
         to nonemployment life, imposed upon a preexisting disease 
 
         condition, resulting in heart injury.  Third, heart damage caused 
 
         by continued exertions required by the employment after the onset 
 
         of a heart attack is compensable.  For example, if a workman for 
 
         some reason feels impelled to continue his duties when, but for 
 
         these duties, he could have gone somewhere to lie down at once, 
 
         the causal contribution of employment to the aggravation of the 
 
         condition is clear.  Sondag, 220 N.W.2d at 904.  Also, in order 
 
         to be compensable, there is no absolute requirement that a 
 
         claimant or decedent be motivated to continue working in the face 
 
         of a known health deprivation in order to produce a compensable 
 
         situation. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984).
 
         
 
              In the case sub judice, claimant failed to established that 
 
         the exertion her husband experienced in loading the boxes shortly 
 
         before his death was heavy or unusual exertion.  This exertion 
 
         was of such short duration that it can be experienced in every 
 
         day life.  Therefore, the first and second tests under Sondag 
 
         were not met.  However, claimant felt impelled by his employment 
 
         to continue working after symptoms began which, according to the 
 
         most experienced expert in this case, aggravated and worsened the 
 
         outcome of the attack leading to claimant's death.  Although 
 
         decedent probably was not aware of the risk he was taking in 
 
         continuing to work, had he taken the advice of the dock 
 
         supervisor and not continued to work, Dr. Iannone felt that the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         outcome would have been different.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although decedent had significant prior heart problems and 
 
         substantial risk factors prior to his death, apportionment is not 
 
         proper or possible in these cases.  Varied Enterprises, Inc., 353 
 
         N.W.2d at 411.
 
         
 
              THEREFORE, claimant demonstrated by a preponderance of the 
 
         evidence that the death of her husband on February 7, 1985, arose 
 
         out of and in the course of his employment at Ace.
 
         
 
              II.  As claimant has shown that the death of her husband 
 
         arose out of and in the course of his employment, the extent of 
 
         entitlement to benefits must be determined.  First, the employer 
 
         is liable for the expenses of the deceased employee's last 
 
         illness, Iowa Code section 85.27 and 85.29; for burial expenses 
 
         of decedent not to exceed the sum of $1,000.00, Iowa Code section 
 
         85.28; and, to the Second Injury Fund in the amount of $4,000.00, 
 
         if the employee died with dependents or $15,000.00, if no 
 
         dependents survived the deceased employee, Iowa Code section 
 
         85.65.  Secondly, weekly benefits are also available from the 
 
         employer for surviving dependents of a deceased employee.  Such 
 
         benefits are paid in the same amount and manner as work injuries 
 
         or occupational diseases except that the benefits are paid to the 
 
         surviving spouse for life or until remarriage or to dependent 
 
         children or incapacitated adults dependant upon the decedent at 
 
         the time of death, if the spouse does not survive the decedent. 
 
         Iowa Code section 85.43.  A surviving spouse is conclusively 
 
         presumed dependent unless there has been a willful desertion of 
 
         decedent by the spouse.  Iowa Code section 85.41(1), Iowa Code 
 
         section 85.A.6.
 
         
 
              In the case sub judice, given the findings as to dependency, 
 
         claimant is entitled to weekly benefits for life or until she 
 
         remarries and to reimbursement for the medical and burial 
 
         expenses she has paid.  Defendants will also be ordered to pay to 
 
         the Second Injury Fund the sum of $4,000.00.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant weekly benefits at the 
 
         rate of two hundred forty-one and 98/100 dollars ($241.98) per 
 
         week until her death or until she remarries, whichever occurs 
 
         first.
 
         
 
              2.  Defendants shall pay the medical expenses listed in the 
 
         prehearing report requested by claimant, exhibit 13.  Claimant 
 
         shall be reimbursed for those expenses paid by her and defendants 
 
         shall reimburse the Teamsters Union Health and Welfare Fund for 
 
         the amounts paid by it.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              4.  Defendants shall pay to claimant the sum of one thousand 
 
         and no/100 dollars ($1,000.00) for reimbursement of burial 
 
         expenses.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  Defendants shall pay to the treasurer of the State of 
 
         Iowa as custodian of the Second Injury Fund the sum of four 
 
         thousand and no/100 dollars ($4,000.00) to be credited to the 
 
         Second Injury Fund.
 
         
 
              6.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              7. Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              8.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 14th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law
 
         840 Fifth Ave
 
         Des Moines, IA  50309-1398
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.10
 
                                            Filed June 14, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LINDA FIGLAND, Surviving
 
         Spouse of Chester Figland,
 
         
 
              Claimant,
 
         
 
         vs.                                            File No. 788896
 
         
 
         ACE LINES, INC.,                            A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance carrier,
 
              Defendants.
 
         
 
         
 
         1108.10 - Heart Attack Case
 
         
 
              Causal connection found when decedent chose to continue 
 
         working after the onset of symptoms which in the opinion of the 
 
         most qualified medical expert testifying the case aggravated the 
 
         heart attack and was the precipitating factor leading to his 
 
         death.  Widow benefits awarded for life.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANE BEDET,
 
         
 
              Claimant,                             File No. 789006
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         CHASE BAG COMPANY,                         D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      MAY 11 1988
 
         AMERICAN MOTORISTS INS.
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Jane Bedet, 
 
         claimant, against Chase Bag Co., employer, and American Motorist 
 
         Insurance Co., insurance carrier, defendants for benefits as a 
 
         result of an alleged injury on February 8, 1985.  A hearing was 
 
         held in Storm Lake, Iowa on March 28, 1988 and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Jane Bedet (claimant), Donald Bedet (claimant's 
 
         husband), Gladys Christians (employer's witness), Randy Freerks 
 
         (plant manager), Chester R. Sprague (employer's supervisor) and 
 
         Joint Exhibits one through nine.  Both attorneys submitted 
 
         excellent briefs.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the time off work for which claimant now seeks 
 
         temporary disability benefits is from February 11, 1985 to March 
 
         26, 1985.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $162.76 per week.
 
         
 
              That the provider of medical services and supplies would 
 
         testify that the fees charged for medical services and supplies 
 
         are fair and reasonable and defendants are not offering contrary 
 
         evidence.
 
         
 
              That defendants claim no credit for benefits paid prior to 
 
                                                
 
                                                         
 
         hearing under either an employee nonoccupational group health 
 
         plan or as workers' compensation benefits.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on February 8, 1985 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the alleged injury was the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits, and if so, the nature and extent of 
 
         benefits.
 
         
 
              Whether claimant is entitled to certain medical expenses.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant was 29 years old at the time of the alleged injury. 
 
         She has a high school education and one and one-half years of 
 
         college.  She is currently enrolled in college and has 12 more 
 
         hours to go in order to obtain an AA degree in General Education. 
 
         Past employments include sales clerk, soldering and packaging 
 
         candy.  Claimant started with employer in December of 1980.  Her 
 
         jobs have been (1) table stacker (2) inspector of the sewing line 
 
         (3) inspector of the small bag department and (4) feeder of the 
 
         bottom line.  Claimant started as a feeder of the bottom line in 
 
         November of 1984.  Most of these jobs required movements with her 
 
         hands and arms.  Claimant testified that prior to this alleged 
 
         injury that she had no trouble with her arms.
 
         
 
              Claimant testified that her regular hours were from 7:30 a.m. 
 
         until 4 p.m.  On Friday, February 8, 1985, claimant went to work 
 
         at the usual time at approximately 7:20 a.m. to 7:25 a.m.  She 
 
         stated that she was injured as she entered the locker room to put 
 
         her coat and lunch in her locker.  Claimant testified that she 
 
         went to the door and pushed it open with her right shoulder.  At 
 
         that very same moment another employee was coming out of the 
 
         locker room and pulled the door open from the other side.  
 
         Claimant said this caused her to stumble forward into the locker 
 
         room.  As she stumbled forward, she quickly raised her right arm 
 
         to shield her face from striking the wall inside the door.  The 
 
         wall was only two and one-half feet or three feet inside the door.  
 
         Claimant testified that she brought her arm up to approximately 
 
         eye level instinctively and very quickly.  She added that in the 
 
                                                
 
                                                         
 
         process she dropped her purse and water jug that she was carrying 
 
         in her left hand.  She picked up her property and went to work as 
 
         usual.  She had no trouble at that time.
 
         
 
              When claimant got home from work that night she had a 
 
         throbbing pain in her right arm.  Her right arm was stiff and she 
 
         could not move it.  It bothered her all night.  The following 
 
         morning claimant went to see Robert O. Eiselt, D.O., because she 
 
         felt that he would see her on Saturday and because she wanted to 
 
         see him because she had seen him before.  Claimant said that Dr. 
 
         Eiselt told her that she injured the bursa in her arm and gave 
 
         her a note not to work which reads as follows:
 
         
 
         2-9-85
 
         
 
              To Whom It Concern:
 
         
 
                   Mrs. Jane Bedet has injured her right bursa.  The 
 
              cartilage has been severely damaged from overuse of the 
 
              right arm and shoulder.
 
         
 
                   She is being given physio-therapy and depro-medral for 
 
              her Bursitis.
 
         
 
                   She may need, or will have to rest the shoulder for 
 
              several weeks and be treated.
 
         
 
         (Exhibit 3K)
 
         
 
              Claimant testified that she gave this note to her 
 
         supervisor, Chester Sprague, on Monday, February 11, 1985.  
 
         Sprague gave her a different job reclaiming bags.  She said that 
 
         she did this for about two hours by using her left hand most of 
 
         the time.  Then Sprague told her to go home.  She asked why she 
 
         had to go home. She testified that she was told it was because 
 
         she could not do that job.  Claimant said that she asked why 
 
         another injured employee was allowed to do it and she was not.  
 
         She related that she was told that they do not discuss the 
 
         situation with other employees.
 
         
 
              Claimant testified that she went home.  Next, she called the 
 
         company and asked to see the company doctor and she was told to 
 
         go see S. R. Helmers, M.D.  Claimant saw Dr. Helmers on Tuesday, 
 
         February 12, 1985.  Dr. Helmers was both a company doctor and 
 
         also a family physician of claimant.  Dr. Helmers' office note 
 
         for this date reads as follows:
 
         
 
              2-12-85 Bedet, Jane Complains of right shoulder pain.  Saw a 
 
              D.O. physician in Spirit Lake and received an unknown 
 
              injection in it on Saturday, two days ago.  Has tenderness 
 
              with motion.  Has inability to abduct the arm.  X-ray was 
 
              done of shoulder.  IMP:  Acute right shoulder inflammation, 
 
              generalized.
 
         
 
         (Ex. 3I)
 
                                                
 
                                                         
 
         
 
              The x-ray report from Dr. Helmers visit reads as follows:
 
         
 
              INTERPRETATION:  2-12-85 Bedet, Jane #5502
 
         
 
              Right shoulder:  No fracture identified.  No dislocation.
 
         
 
         (Ex. 3J)
 
         
 
              Dr. Helmers gave claimant a note taking her off work which 
 
         reads as follows:  "Due to acute shoulder inflammation, Jane 
 
         Bedet may not currently use her right upper extremity for work.  
 
         I expect this disability to last 1-2 weeks."  (Ex. 3H).
 
         
 
              Dr. Helmers later confirmed in a letter to defendants' 
 
         attorney that he did not ask claimant for a detailed history of 
 
         her complaint on the day that he saw her on February 12, 1985 
 
         (Ex. 3B).
 
         
 
              Claimant testified that she gave this note to Jan Runia at 
 
         work on February 12, 1985.  Claimant added that she did not talk 
 
         to anyone else but simply delivered the note and went home.
 
         
 
              Claimant continued to see Dr. Eiselt.  She saw him a total 
 
         of 13 times on February 8, 9, 13, 16, 19, 21, 23, 25, and March 
 
 
 
                                 
 
                                                         
 
         6, 13, 19 for office visits, ultrasound treatments and 
 
         osteopathic manipulative therapy treatments (Ex. 3L).
 
         
 
              Claimant testified that Dr. Eiselt then referred her to 
 
         David L. Hoversten, M.D., an orthopedic surgeon in Sioux Falls, 
 
         South Dakota.  Dr. Hoversten's first office notes on February 26 
 
         read as follows:
 
         
 
              Jane is a 29 yr old who was well until 8 Feb 1985.  She 
 
              fell, striking her shoulder against the bathroom door.  She 
 
              continued to work.  She had a lot of pain and saw the doctor 
 
              the next day and since then has not worked because of severe 
 
              pain in her right shoulder.  She says her job requires a lot 
 
              of lifting and work with that right shoulder and it just has 
 
              not been recovered to the point she could work.
 
         
 
              The exam shows pain and restricted passive motion of that 
 
              right shoulder.  She has limited internal as well as 
 
              external rotation.  She does have strong abduction of the 
 
              shoulder.
 
         
 
              IMPRESSION:  Post-traumatic bursitis, rt shoulder.
 
         
 
         (Ex. 3F)
 
         
 
              Dr. Hoversten gave claimant a slip excusing her from work 
 
         for three weeks on February 26, 1985 (Ex. 3G).  He found her to 
 
         be much better on March 26, 1985.  At that time, she had a full 
 
         range of motion and returned to work on that date (Ex. 3E and F; 
 
         Ex. 1, page 7).
 
         
 
              Dr. Eiselt wrote an undated letter to the claimant herself 
 
         as follows:
 
         
 
              Jane Bedet, Ocheyedan, Iowa is a 29 yr. old who was in good 
 
              health until Feb. 8, 1985.  On that date she fell when she 
 
              was working at the Chase Bag Company in Sibley, Iowa.  In 
 
              falling she struck her right shoulder against the bathroom 
 
              door causing her to fall to the floor.  Someone had opened 
 
              the door from the other side causing Jane to fall into the 
 
              locker room.  Jane continued to work that day.  When she 
 
              called me Feb. 8th she was in a great deal of pain.  I saw 
 
              her in my office on Feb. 9th.  She was unable to go to work 
 
              because of the severe pain in her right shoulder.  Her job 
 
              required her to lift heavy boxes or bags.
 
         
 
              I treated Jane with ULS, microtherm, and diathermy in 9 
 
              subsequent visits I also injected 2cc depro medrol and 2cc 
 
              xylocaine into the shoulder on 2 visits.
 
         
 
              I then referred her to the Orthopedic Associates in Sioux 
 
              Fails, S. Dak.  She was referred back to me for PT.  I 
 
              treated her 4-times before she returned to Sioux Falls.
 
         
 
              Although the shoulder is well enough to return to work, it 
 
                                                
 
                                                         
 
                   may cause some trouble in her later years.
 
         
 
         (Ex. 3L)
 
         
 
              At the hearing claimant testified that she did not strike 
 
         her shoulder on the door or on the wall.  She stated that she did 
 
         not fall to the floor.  Nevertheless, both Dr. Eiselt and Dr. 
 
         Hoversten reported that claimant had struck her shoulder against 
 
         the door.  Dr. Eiselt in addition, reported that claimant fell to 
 
         the floor.  Claimant admitted that she gave a telephone statement 
 
         to an insurance company representative, Bob Flaherty, on March 
 
         18, 1985.  In that statement she stated that she did not hit 
 
         anything with her shoulder and that she did not fall to the floor 
 
         (Ex. 2, pp. 3 & 5).
 
         
 
              Claimant made no explanation at the hearing for these 
 
         various accounts of how the injury actually occurred.  Nor did 
 
         claimant try to reconcile these various different accounts of how 
 
         the alleged injury occurred.
 
         
 
              Claimant's counsel wrote to Dr. Hoversten on April 18, 1986. 
 
         He quoted excerpts of claimant's recorded telephone statement 
 
         with Flaherty in which claimant said that she did not fall to the 
 
         floor, that she did not hit anything, and that she did not 
 
         contact anything with her right shoulder.  Dr. Hoversten was then 
 
         asked in writing if that factual situation would or could have 
 
         caused claimant's injury (Ex. 5).  Dr. Hoversten replied to 
 
         claimant's counsel as follows on April 28, 1986.
 
         
 
              I received your letter dated 18 April 1986 about Mrs. Jane 
 
              Bedet.  In it you ask if the above described history were 
 
              true, could Mrs. Bedet have injured her shoulder without 
 
              actually hitting anything.
 
         
 
              Yes, she could have.  A sudden stress as she had where she 
 
              would suddenly fling her arm up to protect her against 
 
              hitting her face when she fell would cause a severe 
 
              impingement of the shoulder bone against the arm bone and 
 
              result in this type of bursitis.  I think her history is 
 
              entirely compatible with her resulting injury.
 
         
 
         (Ex. 3D)
 
         
 
              Dr. Hoversten also made a written report on May 27, 1987 
 
         after he saw claimant again approximately two years after the 
 
         original alleged injury.  He said that claimant complained of 
 
         shoulder pain when she worked with her arm at shoulder level or 
 
         in an elevated position.  He added that occasionally it aches at 
 
         night.  His clinical examination disclosed some crepitation 
 
         grating noise in the subacromial bursa.  X-rays of the bony 
 
         structures were relatively normal.  He ordered an arthrogram 
 
         which revealed a small tear of the rotator cuff near the 
 
         insertion of the supraspinatous to the humerus.  He said the tear 
 
         was quite small and confined to scarring of the bursa.  Surgery 
 
         was not recommended at the time of his report but might be 
 
                                                
 
                                                         
 
         necessary in the next five to ten years.  Dr. Hoversten felt that 
 
         claimant had a 25 percent permanent functional impairment of the 
 
         right upper extremity which he said converted to 15 percent of 
 
         the body as a whole.  Dr. Hoversten acknowledged that this rating 
 
         was not clearly spelled out in the AMA Guides to the Evaluation 
 
         of Permanent Impairment, second edition.  Instead, he said it was 
 
         based upon his general knowledge of shoulder function and the 
 
         weakness and pain that a rotator cuff tendon can cause (Ex. 3C).
 
         
 
              Dr. Hoversten also testified by deposition on January 14, 
 
         1988.  He said that he saw claimant again on May 28, 1987.  She 
 
         still had a full range of motion and x-rays were still 
 
         essentially negative; however, claimant had a crepitus sound and 
 
         Dr. Hoversten was suspicious of why a bursitis would last two 
 
         years.  Therefore, he ordered an arthrogram which disclosed a 
 
         small rotator cuff tear near the insertion of the supraspinatous 
 
         to the humerus.  Dr. Hoversten explained that bursitis and 
 
         rotator cuff injury could give the patient the same pain (Ex. 1, 
 
         pp. 8 & 9).  Dr. Hoversten said after the arthrogram that he 
 
         thought the earlier bursitis had disappeared and that claimant's 
 
         current problem was the rotator cuff or a hole in the tendons in 
 
         the top of her arm bone (Ex. 1, p. 11).  The arthrogram report 
 
         reads as follows:
 
         
 
              5/28/87 RIGHT SHOULDER ARTHROGRAM:  There is a very small 
 
              amount of extravasation of contrast material outside of the 
 
              upper lateral aspect of the shoulder joint thought to be due 
 
              to a small rotator cuff tear.
 
         
 
         (Ex. 1, deposition ex. 2)
 
         
 
              Dr. Hoversten testified that a sudden active abduction of a 
 
         healthy shoulder is unlikely to cause a rotator cuff tear.  If 
 
         claimant had a previous impingement through repeated rubbing of 
 
         the ligament and the bony bridge then a sudden abduction could 
 
         cause a rotator cuff tear.  Any activity which causes the 
 
         shoulder to rub a lot could weaken it (Ex. 1, pp. 15 & 16).
 
         
 
              Dr. Hoversten said that a tear, or hole, in the tendon is 
 
         permanent.  It can widen and enlarge in later years.  Much of his 
 
         rating of 25 percent permanent functional impairment of the right 
 
         upper extremity was based on his experience of what claimant 
 
         might encounter in the future rather than the strict application 
 
         of the AMA Guides (Ex. 1, pp. 18 & 19).  Dr. Hoversten reiterated 
 
         that it is very conceivable that either striking or not striking 
 
         the shoulder could result in bursitis of the shoulder (Ex. 1, p. 
 
         21).
 
         
 
              Dr. Hoversten did verify that claimant told him on two 
 
         occasions that she struck her shoulder on the bathroom door (Ex. 
 
         1, pp. 23 & 24).  Dr. Hoversten conceded that claimant had never 
 
         told him that she injured her arm simply by raising it quickly. 
 
         This version came from claimant's attorney a year or so after the 
 
         actual event (Ex. 1, pp. 23 & 24).  Dr. Hoversten testified that 
 
         he relied on claimant's account of how the injury occurred.  He 
 
                                                
 
                                                         
 
         believed she was telling the truth (Ex. 1, pp. 23-28).  He felt 
 
         that whether claimant hit the door or did not hit the door, the 
 
         basic event was the same.  He stated that it was not markedly 
 
         different.  He said that either event could have caused her 
 
         injury.  A worn through tendon could be injured by a shoulder 
 
         abduction of the arm (Ex. 1, pp. 28 & 29).
 
         
 
              On cross-examination Dr. Hoversten granted that the actual 
 
         permanent functional impairment, without taking into 
 
         consideration the future possible trouble that claimant would 
 
         have, would be only three to five percent rather than 25 percent 
 
         of the right upper extremity because she has almost complete use 
 
         of her arms except for the pain that she endures.  He added that 
 
         things may develop in the future which may get it up to 25 
 
         percent impairment.  It depends on future events (Ex. 1,.p. 33).
 
         
 
              Claimant was examined by John L. Dougherty, M.D., an 
 
         orthopedic surgeon, on October 2, 1987.  He examined most of the 
 
         exhibits in this case and personally examined the claimant.  He 
 
         found that both arms were essentially the same (Ex. 4, pp. 
 
         10-12). The crepitus was not significant and was about equal in 
 
         both arms (Ex. 4, p. 12).  He found a little calcification of the 
 
         greater tuberosity on the right than was seen in earlier films.  
 
         His diagnosis was pain in the right shoulder with a questionable 
 
         mild tear in the rotator cuff (Ex. 4, pp. 13-15).
 
         
 
              Dr. Dougherty said he would be surprised if the history 
 
         claimant gave would cause a small tear in the rotator cuff, 
 
         especially in a female age 30-31 (Ex. 4, pp. 15 & 16).  He felt 
 
         that any impairment would be minimal and not more than five 
 
         percent of the right upper extremity.  He added that using the 
 
         AMA Guides, which are based mostly on range of motion, claimant 
 
         would have practically zero impairment (Ex. 4, pp. 16 & 17).  Dr. 
 
 
 
                                 
 
                                                         
 
         Dougherty also pointed out the inconsistency in Dr. Eiselt's 
 
         reports where on one occasion he said that claimant damaged her 
 
         bursa from overuse and in another report he says she struck her 
 
         shoulder against the door and fell to the floor (Ex. 4, p. 19).
 
         
 
              Dr. Dougherty did not think he could relate the history she 
 
         gave (using her arm suddenly) to a rotator cuff tear (Ex 4, p. 
 
         18). It would be more likely to come from using her arm or working 
 
         with the arm.  But in a 30 year old woman it would require some 
 
         marked trauma.  He did not think a tear would occur in a 30 year 
 
         old woman from overuse (Ex. 4, p. 21).  Dr. Dougherty disagreed 
 
         with Dr. Hoversten's opinion that lifting her arm to shield her 
 
         face could cause an injury like this (Ex. 4, p. 24).  He said that 
 
         claimant would not need any further treatment (Ex. 4, p. 30).
 
         
 
              In the statement which claimant gave to Flaherty on March 18, 
 
         1985, and again in her testimony at the hearing she said that 
 
         Gladys Christians was the person coming out of the locker room as 
 
         she was going in.  Gladys Christians testified that she has worked 
 
         for employer for 15 years, seven months and 11 days.  She was 
 
         employed there on February 8, 1985, the date of this alleged 
 
         injury.  She has no recollection of the incident that claimant 
 
         relates.  The witness did not see claimant get injured.  The 
 
         witness did not see claimant stumble, fall or drop her purse or 
 
         water jug.  She did not see claimant hit the door or fall to the 
 
         floor.  Christians testified that she never talked to claimant 
 
         about an injury of any kind.  Christians testified that she 
 
         herself has been injured twice.  Once she injured her eye.  
 
         Another time she injured her knee.  She reported these incidents, 
 
         she was believed, and the injuries were handled promptly and 
 
         properly by employer.
 
         
 
              Claimant said that she did return to work on April 17, 1985. 
 
         She has continued to work there ever since.  She testified that 
 
         she has been able to perform the job of feeding the bottom line 
 
         even though she does have problems in doing it.  Her shoulder 
 
         gets stiff and sore off and on if she over uses it or if the 
 
         weather is damp and cold.  It is worse in the spring and the 
 
         fall.  She takes aspirin and Tylenol for pain relief about once a 
 
         week up to three times a day.  Working with her hand or arm 
 
         elevated overhead causes the most weakness and pain.  Claimant 
 
         testified that Dr. Hoversten said she could have surgery but he 
 
         recommended against it at this time.  Claimant testified that Dr. 
 
         Dougherty's examination was rough and made her arm real sore 
 
         afterwards. Claimant denied any other incident before or after 
 
         this incident that might have injured her shoulder.
 
         
 
              Claimant testified that she has been attending college since 
 
         November of 1984.  She hopes to obtain an Associate of Arts 
 
         degree in General Education.
 
         
 
              Claimant admitted that the bags which she transfers from the 
 
         table to the conveyer are light.  They only weigh one pound more 
 
         or less.  Claimant testified that she was earning about $5.96 per 
 
         hour at the time of the alleged injury and that she was earning 
 
                                                
 
                                                         
 
         $6.30 per hour at the time of the hearing.
 
         
 
              Donald Bedet, claimant's husband, testified that he is a ten 
 
         year employee of employer.  He sees his wife for lunch at work. 
 
         She complains that her shoulder is sore and she gets tired after 
 
         four to five hours of work.  She takes aspirin for the pain 
 
         approximately two or three times a week.  He stated that claimant 
 
         can no longer bowl since this injury occurred.  He contended that 
 
         employer had a poor reporting procedure for work related 
 
         injuries. They write it up according to their own version 
 
         irrespective of what the employee tells them.  Furthermore, an 
 
         employee who gets hurt also gets chewed out.
 
         
 
              Claimant testified that initially Dr. Eiselt did not ask how 
 
         this injury occurred.  She told him on one of her later visits 
 
         like the second or third visit.  She could not recall whether Dr. 
 
         Helmers asked her how it occurred or not or whether he took a 
 
         history.  The report of Dr. Hoversten said that claimant fell 
 
         striking her shoulder on the bathroom door and also that she did 
 
         a lot of heavy lifting and work with her right shoulder (Ex. 
 
         3F).
 
         
 
              Claimant said that she brought in the note from Dr. Eiselt 
 
         on Monday, February 11, 1985, and said that she had a problem 
 
         with her shoulder.  She cannot recall if she told the employer 
 
         why her shoulder hurt.
 
         
 
              Claimant said that she first saw Randy Freerks on Friday, 
 
         February 15, 1985.  He had not been there until then.  She did 
 
         not believe that she told him how it happened.  She said he 
 
         became angry with her.  He told her that she was not a good 
 
         employee.  He told her that she did not have a workers' 
 
         compensation claim.  She said that Freerks did not tell her why 
 
         she did not have a workers' compensation claim.  He just said 
 
         that she did not.  Claimant felt that Freerks was unnecessarily 
 
         abusive to her.
 
         
 
              Claimant could not recall when she first told employer that 
 
         she had a work injury.  It might have been on Monday, February 
 
         11, 1985 or Tuesday, February 12, 1985 when she asked if she 
 
         needed a note to get back to work.  She thought possibly she had 
 
         reported it by February 15, 1985 when Freerks chewed her out.  
 
         Claimant could not recall why she asked Jan Runia if she could 
 
         see a company doctor on February 12, 1985.
 
         
 
              Randy Freerks testified that he is plant manager.  He is a 
 
         17 year employee of employer.  He was plant superintendent on 
 
         February 8, 1985 the date of the alleged injury.  He was in 
 
         charge of production and personnel at that time.  He learned of 
 
         the situation sometime during the week of February 11, 1985.  He 
 
         could not recall if claimant said it was work related on February 
 
         15, 1985 or not.  Freerks said that he first learned it was 
 
         claimed as a work related injury on February 27, 1985 by reading 
 
         the undated medical report of Dr. Eiselt.  A first report of 
 
         injury was then filed the following day on February 28, 1985.  He 
 
                                                
 
                                                         
 
         testified that prior to February 28, 1985 employer had no 
 
         knowledge of a work-related injury.
 
         
 
              Freerks said that he called Dr. Eiselt and confirmed that 
 
         claimant saw him on Saturday, February 9, 1985.  Freerks called 
 
         Dr. Helmers and confirmed that claimant did not tell him that 
 
         work caused her injury.  Freerks stated that all injuries are to 
 
         be reported promptly no matter how slight.  They are to be 
 
         reported to the supervisor.  He explained that the employee who 
 
         got chewed out for reporting an injury was an individual who in 
 
         his opinion was accident prone.  Freerks denied that he yelled 
 
         at, hollered at or chewed out claimant.  Freerks stated that 
 
         claimant had two prior claims and she reported them promptly and 
 
         they were handled properly by the employer.
 
         
 
              Chester A. Sprague testified that he is a 29 year employee 
 
         of employer.  He was claimant's supervisor on February 8, 1985.  
 
         He said he first learned that claimant was alleging a 
 
         work-related injury just two weeks before the hearing when he was 
 
         asked to testify.  He testified that claimant never reported a 
 
         work-related injury to him.  He contended that he keeps good 
 
         notes and documents everything.  He checked his records and found 
 
         no report of a work injury.  He said the employees know how to 
 
         report work-related injuries.  They know they need a slip from 
 
         the doctor to return to work after being off work.  He said that 
 
         if claimant said she brought her note from the doctor on February 
 
         11, 1985 then he would accept that she did so.  If she had stated 
 
         that she had a work-related injury at that time he would have 
 
         inquired and found out how she was injured.  He stated that he 
 
         got two slips from claimant taking her off work.  Neither slip 
 
         said it was a work-related injury.  If claimant had reported a 
 
         work-related injury he would have made a record of it and 
 
         reported it to his boss immediately.
 
         
 
              Claimant asserts medical expenses as follows:
 
              1.  Dr. Robert 0. Eiselt - Statements Total:     $475.00
 
         
 
              2.  Orthopaedic Associates - Statements Total:    243.00
 
         
 
              3.  Medical X-Ray Center - Statements Total:      129.50
 
         
 
              TOTAL MEDICAL EXPENSES SOUGHT BY CLAIMANT:       $847.50
 
         
 
                   Claimant seeks costs as follows:
 
         
 
              1.  May Reporting Services, Inc.                 $117.15
 
         
 
              2.  Dr. Hoversten, M.D. Deposition                408.30
 
         
 
                    TOTAL                                      $525.45
 
         
 
              Defendants seek the following costs:
 
         
 
         Defendants' Costs:
 
         
 
                                                
 
                                                         
 
         1.  Cassel, Inc. - $125.00 - Court Reporter costs for Dougherty 
 
         deposition dated 10/14/87.
 
         
 
         2.  Dr. John J. Dougherty - $450.00 - charges for deposition 
 
         given 10/14/87.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on February 8, 1985 which 
 
         arose out of and in the course of her 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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury which 
 
         arose out of and in the course of employment with employer.
 
         
 
              When claimant saw,Dr. Eiselt on Saturday, February 9, 1985 
 
         the day after the alleged injury, she did not tell him how the 
 
         alleged injury occurred.  Her recollection is that she did not 
 
         describe the alleged injury until the second or third time that 
 
         she saw him.
 
         
 
              On Monday, February 11, 1985, when claimant brought the note 
 
         from Eiselt taking her off work, she cannot recall if she 
 
         reported a work-related injury to employer or not.
 
         
 
              Sprague said that claimant delivered two notes to him but 
 
 
 
                                 
 
                                                         
 
         never did report a work-related injury to him.  Sprague said that 
 
         claimant knew that injuries were to be reported promptly.  If she 
 
         had reported an injury, then he would have told his superior and 
 
         treated this as a work-related claim.
 
         
 
              Claimant testified that she asked Jan Runia if she could see 
 
         the company doctor on Tuesday, February 12, 1985 but claimant 
 
         could not recall if she told Runia it was for a work-related 
 
         injury or not.
 
         
 
              On Tuesday, February 12, 1985 claimant saw Dr. Helmers, the 
 
         company physician.  Claimant testified that she could not recall 
 
         if she told Dr. Helmers that she had a work-related claim or not. 
 
         Dr. Helmers said that he did not take a history and he made no 
 
         notes of how her complaints originated (Ex. 3B).  He also gave 
 
         claimant a note to be off work which she took to employer.
 
         
 
              Claimant said that she could not recall if she reported a 
 
         work-related injury or not when she delivered this note to 
 
         employer.
 
         
 
              Sprague confirmed that he did receive two notes taking 
 
         claimant off work but on neither occasion did claimant inform him 
 
         that she sustained a work-related injury.  Sprague said that 
 
         neither slip said that the time off was due to a work connected 
 
         injury.
 
         
 
              Claimant saw Freerks on February 15, 1985 but she could not 
 
         recall if she reported a work-related injury to him or not at 
 
         that time.  She could not recall telling Freerks how the injury 
 
         occurred.
 
         
 
              Claimant could not recall when she told employer that she 
 
         had a work-related injury.  She speculated that it might have 
 
         been February 15, 1985.
 
         
 
              Freerks said that he first learned claimant was claiming a 
 
         work-related injury when he read a medical report from Dr. 
 
         Eiselt. A first report of injury was filed the following day on 
 
         February 28, 1985.  Dr. Eiselt's first report dated February 9, 
 
         1985 stated that claimant injured her right bursa and the 
 
         cartilage had been severely damaged from overuse of the right 
 
         arm, and shoulder (Ex. 3K).  Then Dr. Eiselt wrote an undated 
 
         letter to claimant that the etiology of this alleged injury was 
 
         that she fell and struck her shoulder against the bathroom door 
 
         causing her to fall to the floor (Ex. 3L).
 
         
 
              Claimant saw Dr. Hoversten on February 26, 1985.  He 
 
         reported and testified that claimant told him on two occasions 
 
         that she fell striking her right shoulder against the bathroom 
 
         door (Ex. 1, pp. 23 & 24).  She did not mention falling to the 
 
         floor (Ex. 3F).
 
         
 
              Claimant told Flaherty in a recorded telephone interview on 
 
         March 18, 1985 that she did not fall to the floor.  She did not 
 
                                                
 
                                                         
 
         hit anything with her right shoulder and that her shoulder did 
 
         not come in contact with anything (Ex. 2, pp. 3 & 5).
 
         
 
              At the hearing on March 28, 1988 claimant related that she 
 
         did not strike that locker room door with her shoulder and that 
 
         she did not hit the wall inside the door and she did not fall to 
 
         the floor.  She testified that she simply raised her right arm 
 
         instinctively and abruptly to protect her face from stumbling 
 
         into the locker room wall.  She testified that she felt no pain 
 
         or any other trouble at that time.  Claimant also said that she 
 
         dropped her purse and water jug that she was carrying in her left 
 
         hand.
 
         
 
              Gladys Christian, the person that claimant said opened the 
 
         door from the inside of the locker room and came out at the time 
 
         that claimant was going in, testified that she has no 
 
         recollection of this incident.  Claimant never reported it or 
 
         discussed it with her.  Christian did not see claimant stumble or 
 
         pick up her purse or water jug off the floor.
 
         
 
              After reviewing all of the nonmedical evidence it cannot be 
 
         determined that claimant ever personally reported this injury to 
 
         employer or any employer representatives based upon the testimony 
 
         of all the live witnesses including claimant herself.  Claimant 
 
         knew the injury reporting procedures and had successfully 
 
         reported two other claims earlier.
 
         
 
              Dr. Eiselt first reported an overuse injury.  Then he 
 
         changed that to a fall striking the locker room door with her 
 
         shoulder which caused her to fall to the floor.
 
         
 
              Dr. Helmers had no history and claimant could not recall if 
 
         she gave him one.
 
         
 
              Dr. Hoversten said that either event could have caused 
 
         claimant's shoulder rotator cuff tear.  However, he did say that 
 
         in order for a quick abduction motion to cause such a tear would 
 
         require a previous impingement through repeated rubbing of the 
 
         ligament and the bony bridge.  The evidence in this case does not 
 
         disclose any prior impingement in the claimant's shoulder.  On 
 
         the contrary, claimant testified that she had no prior shoulder 
 
         problems.
 
         
 
              Dr. Hoversten also stated that a rotator cuff tear from a 
 
         quick motion of the arm could happen and that it was very 
 
         conceivable.  Dr. Hoversten did not testify that it did happen.  
 
         He did not testify that it probably did happen.  He only stated 
 
         that it was possible or conceivable.  There was no medical 
 
         evidence that it actually did happen or probably did happen this 
 
         way.
 
         
 
              In addition, Dr. Dougherty testified that the history that 
 
         claimant gave could not cause a tear in the rotator cuff of a 
 
         woman age 30 to 31 (Ex. 4, pp. 15, 16 & 18).  He said that a 
 
         rotator cuff tear in a person this age would require some marked 
 
                                                
 
                                                         
 
         trauma (Ex. 4, p. 21).  He found that the crepitus was not 
 
         significant and it was almost the same in both arms (Ex. 4, pp. 
 
         10-13).
 
         
 
              Dr. Dougherty disagreed with Dr. Hoversten.  Dr. Dougherty 
 
         said that lifting the arm to shield her face would not cause a 
 
         rotator cuff tear, bursitis or adhesive capsulitis (Ex. 4, pp. 23 
 
         & 24).  Dr. Dougherty testified that claimant.should not need any 
 
         future treatment (Ex. 4, p. 30).
 
         
 
              Based on the foregoing evidence claimant failed to sustain 
 
         the burden of proof by a preponderance of the evidence that she 
 
         sustained an injury which arose out of and in the course of her 
 
         employment with employer on February 8, 1985.  Claimant failed to 
 
         promptly report a work-related injury at the time it occurred.  
 
         She could not recall when, if or how and to whom she reported this 
 
         alleged injury even though she had numerous opportunities to 
 
         report it.
 
         
 
              Dr. Eiselt first reported the alleged injury as an overuse 
 
         injury.  Then he reported in a letter to claimant herself, 
 
         bearing no date, that the injury occurred by striking her 
 
         shoulder against the door which caused her to fall to the floor.  
 
         Claimant then gave a statement that she did not strike the door, 
 
         fall to the floor or contact anything.  She testified that she 
 
         only raised her right arm suddenly in a protective move.  The 
 
         only possible witness to this incident, Christian, had no 
 
         recollection of any of the events described by claimant.  
 
         Claimant never reported to Christian what had happened.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury which 
 
         arose out of and in the course of her employment on February 8, 
 
         1985.
 
         
 
              Since claimant has not proven an injury arising out of and 
 
         in the course of employment, then, it is not necessary to discuss 
 
         causal connection to disability or entitlement to weekly 
 
         compensation or medical benefits.
 
         
 
              Claimant's costs are not allowed.  Rather costs,are assessed 
 
         against claimant since claimant is the nonprevailing party. 
 
         Division of Industrial Services Rule 343-4.33  The expert witness 
 
         fee for Dr. Dougherty is limited to $150.00 by Iowa Code section 
 
         622.72.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant did not promptly and properly report a 
 
         work-related injury.
 
         
 
              That claimant gave several differing versions of how the 
 
                                                
 
                                                         
 
         alleged injury occurred.
 
         
 
              That claimant made no attempt in her testimony at the 
 
         hearing to explain or reconcile these various versions of how the 
 
         accident occurred.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusion of law is 
 
         made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury which 
 
         arose out of and in the course of her employment with employer on 
 
         February 8, 1985.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That the costs of this action are assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4.33 
 
         including the costs presented by defendants at the hearing in the 
 
         amount of two hundred seventy-five dollars ($275.00).
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 11th day of May, 1988.
 
                              
 
                                                         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harold Dawson
 
         Attorney at Law
 
         315 9th St.
 
         Sibley, Iowa  51249
 
         
 
         Mr. Thomas Plaza
 
         Attorney at Law
 
         PO Box 3086
 
         Sioux City, Iowa  51102
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1106; 1108.50; 1401;
 
                                            1402.20; 1402.30;
 
                                            1402.40
 
                                            Filed May 11, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANE BEDET,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 789006
 
         CHASE BAG COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         AMERICAN MOTORISTS INS.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40
 
         
 
              Claimant alleged that she sustained a rotator cuff tear by 
 
         abruptly raising her arm to shield her face when someone coming 
 
         out of the locker room pulled the door open just as claimant had 
 
         leaned her shoulder against the door to enter the locker room.  
 
         At first claimant did not describe an incident to the doctors.  
 
         Then she gave differing versions.  She could not recall if or 
 
         when she actually reported a work-related injury to employer.  
 
         Claimant did not endeavor to explain any of these many 
 
         inconsistencies by her testimony at the hearing.  The woman 
 
         coming out of the locker room was unaware of any incident and 
 
         claimant never reported an incident to her.
 
         
 
              Held:  Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained an injury which 
 
         arose out of and in the course of employment.