Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PEGGY L. WATERMAN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 790119
 
            vs.                           :                   875237
 
                                          :
 
            K-PRODUCTS, INC.,             :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Peggy L. Waterman against her employer, 
 
            K-Products, Inc., its insurance carrier, General Casualty 
 
            Companies, and the Second Injury Fund of Iowa.  Claimant 
 
            seeks compensation for permanent partial disability, payment 
 
            of medical expenses and the costs of the proceeding.  A 
 
            primary issue in the case is determination of how much, if 
 
            any, permanent partial disability compensation is payable by 
 
            the employer and how much, if any, is payable by the Second 
 
            Injury Fund.  The employer stipulated to the occurrence of 
 
            injury arising out of and in the course of employment on 
 
            March 15, 1985 and January 25, 1988.  The employer and 
 
            Second Injury Fund dispute that the 1985 injury was a cause 
 
            of permanent disability, but both stipulate that the 1988 
 
            injury caused permanent disability.  It was stipulated 
 
            between the parties that any compensation for permanent 
 
            partial disability based upon the 1985 injury is payable 
 
            commencing November 19, 1985, and that any compensation for 
 
            permanent partial disability based upon the 1988 injury is 
 
            payable commencing September 11, 1989.  The rate of 
 
            compensation was stipulated to be $149.98 per week for the 
 
            1985 injury and $175.20 per week for the 1988 injury.  There 
 
            is a particular dispute in the case with regard to whether 
 
            each injury is limited to a scheduled member of an arm or 
 
            whether either or both of the injuries extends into the body 
 
            as a whole through the shoulder.  An issue exists with 
 

 
            
 
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            regard to whether the expenses claimant seeks to recover 
 
            under section 85.27 were causally connected to either or 
 
            both of the work injuries.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa on April 16, 1991.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Peggy L. Waterman is a 41-year-old woman who lives at 
 
            Sheldon, Iowa with her three sons who ranged in ages from 11 
 
            through 19 at the time of hearing.  Peggy is a 1968 graduate 
 
            of Hudson, South Dakota High School.  She completed one year 
 
            of beautician training in 1969 and has no further formal 
 
            education or vocational training.
 
            
 
                 Peggy's work history consists of approximately seven 
 
            years of electrical line assembly work, two years of working 
 
            as a beautician, two years of work as a bank teller and 
 
            twelve years of work for K-Products.
 
            
 
                 At K-Products, Peggy has generally performed work 
 
            sewing caps.  She sewed emblems onto caps until 
 
            approximately 1984, sewed crown seams for approximately six 
 
            months and then moved to bill seams.  On March 15, 1985, 
 
            while sewing bills, she experienced a sharp pain in her 
 
            right arm.  She obtained treatment from the company 
 
            physician Monte J. Harvey, D.O.  She was eventually referred 
 
            to orthopaedic surgeon Peter K. Rodman, M.D.  After 
 
            conservative treatment was unsuccessful, claimant underwent 
 
            right tennis elbow release surgery which was performed by 
 
            Dr. Rodman in August 1985 (exhibit 12).  The surgery 
 
            provided limited relief of her symptoms, but she was able to 
 
            resume work.  Upon returning to work, she initially worked 
 
            only three days per week, but eventually resumed working 
 
            five days per week.  Most of the time, she sewed crown 
 
            seams.  During January 1988, she experienced discomfort in 
 
            her left elbow which was similar to the discomfort she had 
 
            experienced in her right previously, but the onset was 
 
            gradual rather than immediate as had occurred in 1985.  On 
 
            Friday, January 25, 1988, the pain was severe.  Claimant 
 
            worked through the day, rested over the weekend, but was 
 
            unable to work the following Monday.  She again entered into 
 
            a course of treatment with Dr. Harvey and was referred to 
 
            Dr. Rodman.  In October 1988, left tennis elbow release 
 
            surgery was performed by Dr. Rodman (exhibit 22).
 
            
 
                 Peggy returned to work in November or December 1988 
 
            working half days in the art department and purchasing 
 
            department.  She resumed full-time work in the art 
 
            department in approximately January 1989.  She remains in 
 
            that department at the present time and is currently earning 
 
            $6.68 or $6.78 per hour.  She had been earning approximately 
 
            $7.50 per hour at the time of the most recent injury and 
 
            individuals currently working on the assembly line are 
 
            earning approximately $8.00 per hour.  There was a time when 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            it appeared as though Peggy may not have work in the art 
 
            department, but due to another employee resigning, she was 
 
            able to obtain her current position.
 
            
 
                 Peggy continues to have problems with her hands and 
 
            arms, but she is able to perform the work required for her 
 
            current position.  Her employer allows her to change 
 
            activities as needed for relief of her symptoms.  She now 
 
            works some overtime.  Kay Koob, the art coordinator, 
 
            confirmed that claimant has problems with her arms at work.  
 
            Eileen Martens, a long-term friend of the claimant, likewise 
 
            confirmed that claimant has difficulty with her arms.  
 
            Claimant's arm difficulties have caused her to cease 
 
            performing beautician work and even activities such as 
 
            reading books.  Peggy continues to experience pain in her 
 
            arms as well as numbness and tingling in her hands.  Peggy 
 
            complained of headaches and problems with her neck for which 
 
            she uses an orthopaedic pillow.  She complained of having 
 
            trouble with her low back if she stoops or bends a lot.
 
            
 
                 Peter K. Rodman, M.D., the treating orthopaedic 
 
            surgeon, stated that claimant's condition is a form of 
 
            overuse syndrome (exhibit 25, page 16).  He rated her as 
 
            having an eight percent impairment of each upper extremity, 
 
            equivalent to a ten percent impairment of the whole person 
 
            (exhibit 24; exhibit 25, pages 17 and 26).  He related her 
 
            arm problems to her repetitive work activity (exhibit 25, 
 
            page 18).  Dr. Rodman agreed that in the future she should 
 
            avoid repetitive work (exhibit 25, pages 18, 19, 27 and 28), 
 
            and that she will require anti-inflammatory medication 
 
            (exhibit 25, page 21).
 
            
 
                 Claimant was also evaluated by orthopaedic surgeon 
 
            Michael J. Morrison, M.D.  Dr. Morrison rated her as having 
 
            a 3-5 percent permanent impairment of each upper extremity 
 
            (exhibit 27; exhibit 28, page 11).  Dr. Morrison felt that 
 
            claimant's employment activity was a cause of the arm 
 
            problems which afflict her (exhibit 28, page 10).  Dr. 
 
            Morrison likewise felt that claimant should be restricted to 
 
            doing what is comfortable for her and that she should use 
 
            pain as a limiting factor for her activities (exhibit 28, 
 
            page 14).
 
            
 
                 Claimant was also evaluated by Horst G. Blume, M.D.  
 
            Dr. Blume assigned a 16 percent impairment rating for both 
 
            of her upper extremities, an amount which he stated was 
 
            equal to 10 percent of the body as a whole, the same rating 
 
            as arrived at by Dr. Rodman in exhibit 24.  Dr. Blume also 
 
            assigned a 5 percent permanent impairment rating of the body 
 
            as a whole due to the condition of claimant's lumbar spine.  
 
            He stated that his total rating of 15 percent of the body as 
 
            a whole includes ". . . the neck, shoulder, epicondylitis 
 
            and lumbar spine condition."  (Exhibit 31).
 
            
 
                 Claimant was also evaluated by Peter D. Wirtz, M.D.  
 
            Dr. Wirtz rated claimant as having a five percent permanent 
 
            impairment of each upper extremity due to muscle weakness in 
 
            her forearms (exhibit 33).
 
            
 
                 It is found that the assessment of this case made by 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dr. Rodman is correct where it differs from the assessments 
 
            made by the other physicians.  He is the treating 
 
            orthopaedic surgeon and is therefore most familiar with her 
 
            condition.  His level of expertise is equivalent to that of 
 
            any of the other evaluators.  His opinion on causation is 
 
            corroborated by Dr. Morrison, while his impairment rating is 
 
            corroborated by Dr. Blume.  The variation among impairment 
 
            ratings is not particularly great.  In making this finding, 
 
            it is further found that the evidence does not show, by a 
 
            preponderance of the evidence, that it is probable that 
 
            claimant has any permanent disability other than in her arms 
 
            which resulted from her employment with K-Products.  She has 
 
            had discomfort at times, but there is no showing in the 
 
            evidence that her symptoms have been anything other than 
 
            temporary as far as her neck and back is concerned.  Those 
 
            conditions have not been shown to be disabling from an 
 
            industrial standpoint or to have produced any permanent 
 
            impairment.  The rating of impairment for claimant's lumbar 
 
            spine as made by Dr. Blume is not accepted or adopted as 
 
            being a correct rating of impairment which was causally 
 
            connected to the claimant's employment.  The evidence fails 
 
            to show that the permanent disability extends beyond her 
 
            arms.  To the contrary, the evidence shows it to be situated 
 
            in her elbows.  It is specifically found that the right 
 
            elbow problem was proximately caused by the 1985 injury and 
 
            the left elbow problem by the 1988 injury.
 
            
 
                 It is further found that Peggy Waterman is currently 
 
            appropriately employed.  Were it not for her employer making 
 
            efforts to keep her on its work force, she would almost 
 
            certainly have experienced a very major reduction in her 
 
            actual earnings.  She is foreclosed from repetitive work.  
 
            Her current level of earnings is approximately 85 percent of 
 
            what she would be earning if she were still employed working 
 
            on the line earning $8.00 per hour as she indicated is 
 
            fairly representative of customary earnings for line workers 
 
            at the present time.
 
            
 
                                conclusions of law
 
            
 
                 Where an injury is limited to a scheduled member, the 
 
            loss is measured functionally, not industrially.  Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983).  With regard 
 
            to the 1985 injury, it has been found that Peggy experienced 
 
            an eight percent permanent impairment of her right arm.  
 
            Under Code section 85.34(2)(m), she is entitled to recover 
 
            20 weeks of permanent partial disability compensation.  The 
 
            same is true for the 1988 injury.  The employer's liability 
 
            in this case is to pay Peggy L. Waterman 20 weeks of 
 
            compensation at the rate of $149.98 per week, payable 
 
            commencing November 19, 1985 and 20 weeks of compensation at 
 
            the rate of $175.20 per week, payable commencing September 
 
            11, 1989, together with accrued interest from the date each 
 
            payment came due until the date of actual payment.
 
            
 
                 It having been found that Peggy Waterman experienced an 
 
            eight percent loss of use of her right arm in 1985 and then 
 
            subsequently experienced an eight percent loss of use of her 
 
            left arm in 1988 makes this case one in which the Second 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Injury Fund has exposure.  In such a case, the individual's 
 
            disability is evaluated industrially and then the 
 
            compensable value of the prior scheduled disability is 
 
            deducted with the Second Injury Fund paying the difference.  
 
            Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989); 
 
            Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 
 
            1979).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 Peggy Waterman has a very substantial loss of her 
 
            ability to use her arms.  Most occupations in our society 
 
            require use of the arms.  At the present time, it appears as 
 
            though she is unable to engage in any form of employment 
 
            which requires repetitive activity of her arms.  This 
 
            essentially excludes her from every occupation she has 
 
            performed and every position she has held, other than her 
 
            current job in the art department.  She has experienced a 
 
            very severe loss of access to many jobs which would 
 
            otherwise be available to her, particularly when her level 
 
            of educational achievement is considered.  Her current 
 
            situation is likely as favorable a situation as she could 
 
            hope to obtain.  It is probably much more favorable to her 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            than what the outcome would be if the employer had not made 
 
            it available to her.  There is, of course, no guarantee that 
 
            any particular job or position will last forever for any 
 
            individual.  The same is true with Peggy Waterman, even 
 
            though her current employment situation appears stable and 
 
            relatively secure.  When all the material factors of 
 
            industrial disability are considered, it is determined that 
 
            Peggy Waterman has a 25 percent permanent partial disability 
 
            when the same is evaluated according to her loss of earning 
 
            capacity.  This entitles her to receive 125 weeks of 
 
            compensation for permanent partial disability.  After 
 
            deducting 40 weeks which represents the compensable value of 
 
            the scheduled impairments, the obligation of the Second 
 
            Injury Fund in this case is to pay Peggy Waterman 85 weeks 
 
            of compensation.  The applicable rate of compensation is 
 
            $175.20 based upon the injury which precipitated Second 
 
            Injury Fund liability.
 
            
 
                 The evidence in this case is not sufficiently clear in 
 
            order to make any findings of the amount that the claimant 
 
            is entitled to recover for over-the-counter medications and 
 
            mileage, though it would be expected that she would incur 
 
            some expenses of that type.  Claimant did not provide an 
 
            itemized list showing her actual expenditures.  Exhibits 
 
            34A, B, C and D are not shown on any itemized statement.  
 
            Since defendants chose Dr. Rodman as the authorized treating 
 
            physician, they are responsible for payment of all his 
 
            reasonable fees and expenses.  Providing a rating of 
 
            permanent impairment following a surgical proceeding is a 
 
            common and customary part of the treating orthopaedic 
 
            surgeon's services.  Defendants are therefore responsible 
 
            for the $50.00 charge made for that service as shown in 
 
            exhibit 34D.  Defendants should also be responsible for 
 
            payment of the charges with Dr. Harvey as shown in exhibit 
 
            34B and the physical therapy shown in exhibit 34C.  
 
            Defendant employer and its insurance carrier would likewise 
 
            be responsible for payment of any prescription medications 
 
            prescribed by Dr. Harvey or Dr. Rodman for the arm 
 
            conditions.  It cannot be determined from exhibit 34A as to 
 
            whether or not those medications were prescribed by either 
 
            of those physicians or the purpose of such prescriptions.  
 
            With regard to over-the-counter medications, in the absence 
 
            of direct evidence showing specific amounts paid and rate of 
 
            usage of the particular medications, the amounts requested 
 
            in the prehearing report cannot be simply approved.  
 
            Claimant's own testimony at hearing was that the amounts 
 
            shown are but an estimate.  According to her figures, these 
 
            would total nearly $200 per year.  It is found that a more 
 
            reasonable amount for over-the-counter medications would be 
 
            $50 per year.
 
            
 
                 With regard to costs, claimant is entitled to recover 
 
            the filing fees of $130.00, service fees of $22.00, $150.00 
 
            as an expert witness fee for the deposition of Dr. Rodman, 
 
            $113.21 for the reporter fee for the Rodman deposition, 
 
            $150.00 for the report from Dr. Blume, and $49.60 and $37.86 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            respectively as court reporter fees for the depositions of 
 
            the claimant and Dr. Morrison.  These costs, which are 
 
            recoverable under 343 IAC 4.33, total $652.67.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that K-Products and General 
 
            Casualty Companies pay Peggy L. Waterman twenty (20) weeks 
 
            of compensation for permanent partial disability at the 
 
            stipulated rate of one hundred forty-nine and 98/100 dollars 
 
            ($149.98) per week payable commencing November 19, 1985 and 
 
            twenty (20) more weeks of compensation for permanent partial 
 
            disability at the stipulated rate of one hundred 
 
            seventy-five and 20/100 dollars ($175.20) per week payable 
 
            commencing September 11, 1989.  The entire amount thereof is 
 
            past due and shall be paid to claimant in a lump sum 
 
            together with interest pursuant to section 85.30 computed 
 
            from the date each payment came due until the date of actual 
 
            payment.
 
            
 
                 IT IS FURTHER ORDERED that the Second Injury Fund of 
 
            Iowa pay Peggy L. Waterman eighty-five (85) weeks of 
 
            compensation for permanent partial disability at the 
 
            stipulated rate of one hundred seventy-five and 20/100 
 
            dollars ($175.20) per week.  The compensation is payable 
 
            commencing January 29, 1990.  The accrued portion thereof 
 
            shall be paid to the claimant in a lump sum with interest 
 
            thereon computed from the date of this decision until the 
 
            date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that the employer and its 
 
            insurance carrier pay the following expenses and benefits 
 
            pursuant to Iowa Code section 85.27:
 
            
 
            Peter K. Rodman, M.D. (exhibit 34D)             $  50.00
 
            Hawarden Community Hospital (exhibit 34C)         101.20
 
            Monte J. Harvey, D.O.                             215.00
 
            Peggy L. Waterman (over-the-counter medication)   200.00
 
            Total                                           $ 566.20
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the defendant employer and its 
 
            insurance carrier in the amount of six hundred fifty-two and 
 
            67/100 dollars ($652.67) pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the defendant employer and 
 
            its insurance carrier and the Second Injury Fund of Iowa 
 
            file claim activity reports as requested by this agency 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Theodore E. Karpuk
 
            Attorney at Law
 
            400 First National Bank
 
            P.O. Box 1768
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KARLA PHILLIPS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 790649
 
            JIMMY DEAN MEAT COMPANY,      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            permanent partial disability benefits based on an industrial 
 
            disability of 60 percent.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits 1 through 5.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      issue
 
            
 
                 The issue on appeal is the extent of claimant's 
 
            industrial disability resulting from an injury on March 22, 
 
            1985.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed November 30, 1988 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 22, 
 
            1985 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591.
 
            
 
                 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, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 
 
            Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 
 
            591.  See also Barz, 257 Iowa 508, 133 N.W.2d 704; Almquist, 
 
            218 Iowa 724, 254 N.W. 35.
 
            
 
                 The opinion of the supreme court in Olson, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, cited with approval a decision 
 
            of the industrial commissioner for the following 
 
            proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251.  Barton 
 
            v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  This is so as impairment and disability are not 
 
            synonymous.  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 dis-ability.
 
            
 
                 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 Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Apportionment is limited to those situations where a 
 
            prior injury or illness independently produces some 
 
            ascertainable portion of the ultimate industrial disability 
 
            which exists following the employment-related aggravation.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 
 
            1984).
 
            
 
                                     analysis
 
            
 
                 The issue that is dispositive of this appeal is the 
 
            extent of claimant's industrial disability.  It should be 
 
            noted that the parties stipulated that claimant's work 
 
            injury was a cause of permanent disability.  That 
 
            stipulation is not obviously erroneous, not contrary to law, 
 
            nor otherwise invalid and therefore is binding.  Therefore, 
 
            any arguments by defendants on appeal that the disability in 
 
            this matter was temporary are inappropriate.
 
            
 
                 Defendants' major contention on appeal is that 
 
            claimant's work injury on March 22, 1985 resulted in little 
 
            industrial disability.  Defendants attribute claimant's 
 
            industrial disability to events prior to the March 22, 1985 
 
            work injury, namely an automobile accident in March 1983 and 
 
            a work injury in October 1983.
 
            
 
                 The automobile accident in March 1983 did not result in 
 
            any industrial disability.  The medical report at the time 
 
            of the accident described the injury as "mild cervical 
 
            injury."  Claimant did not seek treatment until 2 weeks 
 
            after the accident and discontinued treatment within 
 
            approximately one month after the accident (Exhibit 1, page 
 
            49).  Claimant testified that she did not experience any 
 
            continuing problems with her arm after recovery from that 
 
            accident.  Claimant returned to full duty without 
 
            restrictions.  It is worth noting that John T. Bakody, M.D., 
 
            who gave the 20 percent impairment rating was aware of both 
 
            the automobile accident and the carpal tunnel surgery (Ex. 
 
            1, pp. 64-70).
 
            
 
                 Likewise, claimant's work injury in October 1983 did 
 
            not result in any ascertainable industrial disability.  The 
 
            symptoms claimant experienced at that time were to her upper 
 
            extremity (Ex. 1, pp. 161-163).  She did express some aching 
 
            in the shoulder (Ex. 1, p. 160) but her primary and most 
 
            frequent complaints were to the upper extremity.  As a 
 
            result, surgery for a right carpal tunnel syndrome was 
 
            performed.  She was released to return to work without 
 
            restrictions.  No rating of impairment was given by Thomas 
 
            Carlstrom, M.D., who had performed the surgery.  Claimant 
 
            was able to perform her duties from July 30, 1984 until 
 
            March 22, 1985.
 
            
 
                 The deputy correctly discussed the apportionment issue 
 
            when he stated:
 
            
 
                    Defendants claim that there should be some sort 
 
                 of an apportionment in this case due to either the 
 
                 prior carpal tunnel problems or her auto accident 
 
                 in 1983 which existed before Aetna's insurance 
 
                 coverage.  Given the evidence presented, there can 
 
                 be no finding of prior permanent impairment before 
 
                 March 22, 1985.  First, the impairment rating and 
 
                 work restrictions by Dr. Bakody does [sic] not 
 
                 appear to be based upon anything prior to March, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 1985.  Secondly, claimant's physicians in 1983 
 
                 following both the car accident and the carpal 
 
                 tunnel problems returned her to full duty without 
 
                 restrictions.  Thirdly, claimant credibly 
 
                 testified that she experienced no lingering 
 
                 chronic difficulties after the car accident.  
 
                 Claimant admitted that she had some lingering pain 
 
                 problems after the carpal tunnel surgery but was 
 
                 able to continue her employment without any 
 
                 significant change in her job at least until the 
 
                 work injury in this case.
 
            
 
            All of claimant's current industrial disability resulted 
 
            from the work injury of March 22, 1985.
 
            
 
                 The extent of claimant's industrial disability must be 
 
            determined.  Claimant was 29 years old at the time of the 
 
            work injury.  She is a younger worker who has an opportunity 
 
            for retraining.  Her prospects for retraining are good as 
 
            demonstrated by her success in attending school.  She has a 
 
            20 percent impairment related to the work injury.  She has 
 
            had an interbody fusion at C5-6 level and lifting 
 
            restrictions of not more than 15 pounds.  Certain 
 
            activities, such as operating a wizard knife, are closed to 
 
            her.  She is motivated.  She is a high school grad-uate and 
 
            has attended school at a community college.  She has had a 
 
            significant reduction in wages.  Claimant's only work experi
 
            ence prior to the work injury was working as a grocery store 
 
            checker.  When all things are considered claimant has 
 
            suffered a 40 percent loss of earning capacity as a result 
 
            of the March 22, 1985 work injury.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant was born May 10, 1955 and was 29 years old 
 
            on March 22, 1985, the date of the work injury.
 
            
 
                 2.  Claimant was involved in an automobile accident in 
 
            March 1983.
 
            
 
                 3.  Following the automobile accident, claimant ceased 
 
            treatment approximately one month after the accident and 
 
            returned to work without restrictions.
 
            
 
                 4.  Claimant suffered no ascertainable industrial 
 
            disability as a result of the automobile accident.
 
            
 
                 5.  Claimant suffered a work injury in October 1983.
 
            
 
                 6.  As a result of the work injury in October 1983, 
 
            claimant had surgery for right carpal tunnel syndrome.  
 
            Following the surgery, claimant returned to work without 
 
            restrictions.
 
            
 
                 7.  Claimant suffered no ascertainable industrial 
 
            disability as a result of the work injury in October 1983.
 
            
 
                 8.  As a result of the work injury on March 22, 1985 
 
            claimant had an interbody fusion at C5-6 level, lifting 
 
            restrictions of not more than 15 pounds, activity 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            restrictions, and a 20 percent impairment to the body as a 
 
            whole.
 
            
 
                 9.  Claimant is a high school graduate and has attended 
 
            community college.
 
            
 
                 10. Claimant is motivated and her prospects for 
 
            retraining are good.
 
            
 
                 11. Claimant's work experience prior to the March 22, 
 
            1985 work injury was working as a grocery store checker and 
 
            doing a variety of jobs in the defendant employer's packing 
 
            plant.
 
            
 
                 12. Claimant has had a significant reduction in wages.
 
            
 
                 13. Claimant has suffered a 40 percent loss of earning 
 
            capacity as a result of the March 22, 1985 work injury.
 
            
 
                                 conclusion of law
 
            
 
                 Claimant has proved that the work injury of March 22, 
 
            1985 was the cause of an industrial disability of 40 
 
            percent.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant two hundred (200) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred ten and 82/100 dollars ($210.82) from February 20, 
 
            1987.
 
            
 
                 That defendants pay claimant healing period benefits 
 
            for the periods of time stipulated in the prehearing report.
 
            
 
                 That defendants pay accrued weekly benefits in a lump 
 
            sum and receive credit against this award for the benefits 
 
            previously paid as stipulated in the prehearing report.
 
            
 
                 That defendants pay interest on weekly benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants pay all costs of this action including 
 
            the costs of transcription of the arbitration hearing 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 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 ____ day of February, 1990.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Glenn Goodwin
 
            Ms. Lorraine J. May
 
            Attorneys at Law
 
            4th Floor Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803, 5-1806
 
            Filed February 27, 1990
 
            David E. Linquist
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KARLA PHILLIPS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 790649
 
            JIMMY DEAN MEAT COMPANY,      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803, 5-1806
 
            Claimant's industrial disability was not apportioned between 
 
            work injury and prior events (a car accident and a work 
 
            injury).  Claimant had returned to same employer after the 
 
            two prior events with no restrictions.  Subsequent to the 
 
            work injury claimant had surgery and work restrictions.  The 
 
            29 year old claimant had a significant reduction of wages 
 
            but was motivated and prospects for retraining were good.  
 
            Claimant awarded benefits based on an industrial disability 
 
            of 40 percent.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         KARLA PHILLIPS,
 
         
 
              Claimant,
 
                                                  File No. 790649
 
         vs.
 
                                               A R B I T R A T I O N
 
         JIMMY DEAN MEAT COMPANY,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Karla 
 
         Phillips, claimant, against Jimmy Dean Meat Company, employer 
 
         (hereinafter referred to as Jimmy Dean), and Aetna Casualty & 
 
         Surety Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on March 
 
         22, 1985.  On May 31, 1988, 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 part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the nearing from claimant and the 
 
         following witnesses:  Calvin Held and Jan Hardcopf-Bickley.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.
 
         
 
              According to the preheating report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On March 22, 1985, claimant received an injury which 
 
         arose out of and in the course of employment with Jimmy Dean;
 
         
 
              2.  As a result of the injury on March 22, 1985, claimant is 
 
         entitled to 46 1/7 weeks of healing period benefits for the 
 
         periods of time stipulated in the prehearing report;
 
         
 
              3.  The injury was a cause of permanent disability and the 
 
         type of disability is an industrial disability of the body as a 
 
         whole; and claimant is not seeking further healing period 
 
         benefits.
 
         
 
              4.  Permanent disability benefits awarded herein shall begin 
 

 
         
 
         
 
         
 
         PHILLIPS V. JIMMY DEAN MEAT COMPANY
 
         PAGE   2
 
         
 
         
 
         as of February 20, 1987; and,
 
         
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $210.82.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to weekly 
 
         benefits for permanent disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              In her brief, claimant submitted an adequate summary of 
 
         facts which shall be adopted as a summary herein except for a few 
 
         modifications to improve its objectivity.  For the sake of 
 
         brevity, only the evidence most pertinent to this decision is 
 
         discussed in this summary.  Whether or not specifically referred 
 
         to in this summary, all of the evidence received at the hearing 
 
         was independently reviewed and considered in arriving at this 
 
         decision.  As will be the case in any attempted summarization, 
 
         conclusions about what the evidence offered may show are 
 
         inevitable.  Such conclusions, if any, in the following summary 
 
         should be considered as preliminary findings of fact.
 
         
 
              Claimant was born on May 10, 1955 and is presently 33 years 
 
         of age.  She graduated from high school in 1973 and has completed 
 
         one year at Southwestern Community College.  Following graduation 
 
         from high school, claimant began employment for Fareway Stores as 
 
         a checker.  This work consisted of checking out customers, 
 
         ordering cigarettes and tobacco, and helping stock shelves in the 
 
         drug section of the store.  She performed this job for 
 
         approximately six years and sustained no job related injuries.
 
         
 
              In 1980 claimant commenced employment with Jimmy Dean after 
 
         a pre-employment physical.  She had no physical problems at the 
 
         time she was hired. her main job while working for Jimmy Dean was 
 
         performing various duties in the boning department with a wizzard 
 
         knife.  A wizzard knife is a vibrating knife which is used to 
 
         trim fat and meat from different cuts of the hog.  She was 
 
         described by Calvin Held, a management person for Jimmy Dean, to 
 
         be "...a very good employee."
 
         
 
              On March 21, 1983, claimant was involved in an auto 
 
         accident.  Claimant's car was struck from the rear.  According to 
 
         claimant's medical records, claimant complained of neck and low 
 
         back pain following the accident which kept her off work for a 
 
         few days.  In April, 1984, claimant also complained of right 
 
         shoulder and arm numbness but stated to her doctor that she did 
 
         not know if this was related to her work at Jimmy Dean or the 
 
         auto accident.  Claimant testified that she had no lingering 
 
         problems after recovery from this accident.
 
         
 
              On October 28, 1983, claimant began having problems with 
 
         holding the wizzard knife.  She was eventually referred to Thomas 
 
         Carlstrom, M.D., by a claims representative for the workers' 
 
         compensation insurance carrier.  Surgery for a right carpal 
 
         tunnel syndrome was performed by Dr. Carlstrom on June 6, 1984 at 
 
         Iowa Methodist Medial Center.  She was released by Dr. Carlstrom 
 
         to return to work without restrictions on July 30, 1984.  No 
 
         permanent partial disability was given by Dr. Carlstrom.  
 
         Claimant testified that although the surgery helped, she had 
 
         lingering problems with her right wrist after this time.
 

 
         
 
         
 
         
 
         PHILLIPS V. JIMMY DEAN MEAT COMPANY
 
         PAGE   3
 
         
 
         
 
         
 
              After being released by Dr. Carlstrom, claimant returned to 
 
         the boning department.  She was able to perform the duties 
 
         associated with this boning department until March 22, 1985.  At 
 
         that time claimant began experiencing problems with her right arm 
 
         and shoulder and neck.  She was referred by the company 
 
         physician, Tom Lower, D.O., to John T. Bakody, M.D., a 
 
         neurosurgeon.  Dr. Bakody examined claimant on March 29, 1985.  
 
         Dr. Bakody initially diagnosed claimant's condition to be a 
 
         brachialgia paresthetica with right thoracic outlet compression, 
 
         right infraspinatus tendinitis and left carpal canal compression.  
 
         He recommended an EMG.
 
         
 
              A progress examination was conducted by Dr. Bakody on April 
 
         7, 1985.  He released her to attempt to return to work but noted 
 
         that if her problems continue, she will have to enter Mercy 
 
         Hospital Medical Center for a myelogram.
 
         
 
              On April 8, 1985, claimant returned to the boning department 
 
         and performed the duties involving the wizzard knife until August 
 
         26, 1985.  As a result of continuing problems with her neck, 
 
         right shoulder, and right arm, Dr. Bakody admitted her on August 
 
         27, 1985 to Mercy Hospital Medical Center.  An anterior cervical 
 
         interbody fusion at the C5-C6 interspace was performed by Dr. 
 
         Bakody on August 30, 1985.
 
         
 
              At the request of Aetna, claimant was referred to Scott B. 
 
         Neff, D.O., on November 4, 1985.  Dr. Neff concurred with Dr. 
 
         Bakody that the brachialgia paresthetica syndrome of claimant 
 
         involved some element of thoracic outlet syndrome compression.  
 
         His examination was suggestive of "...a significant thoracic 
 
         outlet syndrome on the right."  Dr. Neff referred her to 
 
         Alexander Matthews, M.D.
 
         
 
              Dr. Matthews examined her on November 13, 1985.  He 
 
         concurred with the diagnoses of Drs. Bakody and Neff and 
 
         recommended a transaxillary resection of her first rib.  Another 
 
         consultation was arranged with Richard Toon, M.D.  Dr. Toon 
 
         examined claimant on January 16, 1986.  His impression was pain 
 
         in the right shoulder and arm, status post-surgery right cervical 
 
         fusion, doubt much thoracic outlet syndrome and no surgery.
 
         
 
              In response to a letter from Aetna dated February 27, 1986, 
 
         Dr. Bakody estimated claimant's physical impairment to be 20 
 
         percent cervical spine as related to the body as a whole based 
 
         upon the Manual for orthopedic Surgeons in Evaluating Permanent 
 
         Physical Impairment.
 
         
 
              Following the rating by Dr. Bakody, Aetna hired a vocational 
 
         consultant, Jan Hardcopf-Bickley.  Ms. Bickley's impressions are 
 
         contained in a report dated April 22, 1986. one of the 
 
         impressions was:
 
         
 
              Carla's employment history is stable and her work 
 
              quality has always been good.  However, she is 
 
              extremely limited in her marketable transferrable [sic] 
 
              skills.  These will need to be increased or, if an 
 
              on-the-job-training situation can be found, it will 
 
              need to be financially lucrative for the employer to 
 
              provide training.
 
         
 
              The rehabilitation consultant was able to find a job for 
 
         claimant at Jimmy Dean   This job was a new position in the 
 

 
         
 
         
 
         
 
         PHILLIPS V. JIMMY DEAN MEAT COMPANY
 
         PAGE   4
 
         
 
         
 
         sanitation department in the 12:00 midnight - 8:00 a.m. shift.  
 
         Claimant commenced this job on May 13, 1986.  She was then bumped 
 
         from this job and had to bid on a biscuit line/feeder job.  Her 
 
         initial attempt to do this job was unsuccessful.  However, with 
 
         physical therapy and a TENS unit, she was able to do this job 
 
         until she was transferred to the rib table.
 
         
 
              Ms. Bickley's impressions on September 3, 1986 following 
 
         this transfer included:
 
         
 
              1.  There has been a great number of changes at Jimmy 
 
              Dear, Sausage in the last month causing an increase of 
 
              stress among the employees.  Many of Karla's behaviors 
 
              are stress related at the present time.
 
         
 
              2.  There has been an increase in objective signs and 
 
              symptoms indicating a decrease in physical abilities.  
 
              This indicates that Karla's present position is 
 
              irritating her medical condition.  She will be removed 
 
              from that position immediately.
 
         
 
              Claimant was taken off of the rib table and assigned a 
 
         position on the biscuit line.  A restriction of eight hours per 
 
         day was obtained from Dr. Bakody by Ms. Bickley since the 
 
         position required claimant to work 10 - 12 hours per day.  She 
 
         performed this job until October 23, 1986 when she was physically 
 
         unable to do it any longer.
 
         
 
              On December 1, 1986, Ms. Bickley wrote to Dr. Bakody and 
 
         asked him the following question:
 
         
 
              In light of Karla's continuing problems and inability 
 
              to stabilize physically at Jimmy Dean since May, 1986, 
 
              do you feel she is unable to return and should seek 
 
              alternative options?
 
         
 
              Dr. Bakody responded with a yes to this inquiry stating that 
 
         claimant cannot perform a production job requiring standing "with 
 
         a forward head and rounded shoulder for a long period of time."
 
         
 
              In a letter dated December 30, 1986, Ms. Bickley advised 
 
         claimant:
 
         
 
              Jimmy Dean Sausage has been notified that you will not 
 
              be returning to work because of your continuing 
 
              physical problems.  As we discussed, you do not seem to 
 
              be able to do production work without significant 
 
              problems....
 
         
 
         Both Ms. Bickley and Mr. Held acknowledged that claimant made a 
 
         legitimate effort to return to work for Jimmy Dean.
 
         
 
              Claimant has not worked for Jimmy Dean since resigning upon 
 
         the advice of her physicians in late December, 1986.  Ms. Bickley 
 
         testified that claimant said that she hated work at Jimmy Dean 
 
         and became scared and upset when Jimmy Dean attempted to 
 
         accommodate for her disabilities.  However, she agreed that 
 
         claimant made a good attempt to return to work at Jimmy Dean.  
 
         Ms. Bickley said that there are jobs at Jimmy Dean that 
 
         "technically" fit within claimant's restrictions but did not 
 
         indicate whether any of those jobs were actually offered to 
 
         claimant.  Ms. Bickley believes that claimant has an excellent 
 
         chance at vocational rehabilitation and encourages her to pursue 
 

 
         
 
         
 
         
 
         PHILLIPS V. JIMMY DEAN MEAT COMPANY
 
         PAGE   5
 
         
 
         
 
         such activity.  Ms. Bickley states that absent retraining, 
 
         claimant's employment options are limited but could not say if 
 
         claimant would earn less from an inability to perform production 
 
         work.  However, she admits that the highest paying jobs in 
 
         claimant's geographical area are production jobs.
 
         
 
              As a result of not being able to do the work at Jimmy Dean, 
 
         claimant has attended school at Southwestern Community College.  
 
         While attending school she worked part-time at a theater/video 
 
         business.  Her wages averaged $3.50 per hour.
 
         
 
              Recently, she has obtained a full-time job at a motel and is 
 
         earning approximately $3.50 per hour.  She was uncertain as to 
 
         how long she will be able to perform this job because of the 
 
         physical problems she is experiencing with it.  Mr. Held 
 
         testified that claimant would be earning today at Jimmy Dean 
 
         $9.31 per hour plus from $.25 to $.80 per hour along with a 
 
         significant fringe benefits package.
 
         
 
              Claimant described present physical problems with her neck, 
 
         right shoulder, right arm, and headaches.  These problems 
 
         significantly affect her abilities to perform physical tasks with 
 
         her right arm and shoulder.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         she was testifying truthfully.
 
         
 
              Finally, it should be noted that Mr. Held testified that 
 
         Aetnas insurance coverage began as of June or July, 1984.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors 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.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
         N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 

 
         
 
         
 
         
 
         PHILLIPS V. JIMMY DEAN MEAT COMPANY
 
         PAGE   6
 
         
 
         
 
         
 
              Claimant's treating physician, Dr. Bakody, has given 
 
         claimant a significant permanent impairment rating to the body as 
 
         a whole.  However, more importantly in an industrial case is 
 
         claimant's work restrictions.  Dr. Bakody has restricted not only 
 
         lifting over 15 pounds, overhead reaching and repetitive work, 
 
         but also flatly prohibited most production jobs.  This type of 
 
         work is the work for which has yielded claimant the most income 
 
         in her work experience and the type of work for which she is best 
 
         suited given her education before the work injury.
 
         
 
              Defendants claim that there should be some sort of an 
 
         apportionment in this case due to either the prior carpal tunnel 
 
         problems or her auto accident in 1983 which existed before 
 
         Aetna's insurance coverage.  Given the evidence presented, there 
 
         can be no finding of prior permanent impairment before March 22, 
 
         1985.  First, the impairment rating and work restrictions by Dr. 
 
         Bakody does not appear to be based upon anything prior to March, 
 
         1985.  Secondly, claimant's physicians in 1983 following both the 
 
         car accident and the carpal tunnel problems returned her to full 
 
         duty without restrictions.  Thirdly, claimant credibly testified 
 
         that she experienced no lingering chronic difficulties after the 
 
         car accident.  Claimant admitted that she had some lingering pain 
 
         problems after the carpal tunnel surgery but was able to continue 
 
         her employment without any significant change in her job at least 
 
         until the work injury in this case.
 
         
 
              Apportionment of a disability between a preexisting 
 

 
         
 
         
 
         
 
         PHILLIPS V. JIMMY DEAN MEAT COMPANY
 
         PAGE   7
 
         
 
         
 
         condition and an injury is proper only when there is some 
 
         ascertainable disability which existed independently before the 
 
         injury occurred.  Varied Enterprises Inc. v. Sumner, 353 N.W.2d 
 
         407 (Iowa 1984).  After claimant establishes a causal connection 
 
         between the claimed disability and the work injury, does the 
 
         claimant have the burden to establish the lack of a preexisting 
 
         disability or does the burden of persuasion shift to the 
 
         defendant to establish such a preexisting disability for purposes 
 
         of apportionment.  There is no agency precedent on this precise 
 
         point of law.  Drawing from the general law of torts, the 
 
         undersigned believes that the correct law is that claimant has no 
 
         such additional burden after establishing a prima facie case for 
 
         disability.  The plaintiff in a person injury case is not 
 
         normally charged with a burden of proof as to the actual 
 
         apportionment of damages.  Any burden of that nature must be 
 
         assumed by the defendant since the party is the party standing to 
 
         gain by litigating the apportionment issue.  Two Damages in Tort 
 
         Actions, section 15.34(l)(a), Wonder Life Company v. Liddy, 207 
 
         N.W.2d 27 (Iowa 1973).  If no apportionment can be made the 
 
         defendant is responsible for the entire damage.  Becker v. D & E 
 
         Distributing Co., 247 N.W.2d 727, 731 (1976).  Given the above 
 
         stated fact pertaining to this case, defendants have not carried 
 
         their burden to establish a reasonable basis for an apportionment 
 
         due to any prior existing disability.
 
         
 
              Claimant is 33 years of age and should be in the most 
 
         productive years of her employment life.  Her loss of future 
 
         earnings from employment due to her disability is more severe 
 
         than would be the case for a younger or an older individual.  
 
         See Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
 
         of the Iowa Industrial Commissioner 34 (Appeal Decision 1979). 
 
         See also Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report 427 (Appeal Decision 1981).
 
         
 
              Claimant has shown considerable motivation despite her fears 
 
         and anger by attempting a return to work at Jimmy Dean.  She now 
 
         has motivation to retrain herself because of her inability to 
 
         continue the packinghouse work.  She has demonstrated that she 
 
         has a chance of succeeding due to her good grades at the current 
 
         time.  Defendants argue that claimant has voluntarily made a 
 
         choice to leave Jimmy Dean and her vocational choice should not 
 
         be the responsibility of Jimmy Dean.  Defendants claim that her 
 
         current education efforts may potentially increase her earning 
 
         capacity and she has very little industrial disability.  However, 
 
         to suggest that claimant has made a voluntary choice in this 
 
         matter is simply contrary to the evidence.  Claimant is 
 
         attempting to secure replacement employment because her work 
 
         injury has prevented her from returning to work at Jimmy Dean.  
 
         Her failure to return to Jimmy Dean has resulted in a very 
 
         significant loss of earnings.  Furthermore, it would be improper, 
 
         at least at this time, to lower her disability award because her 
 
         current retraining efforts may ultimately be successful.  It 
 
         should also be noted that whatever efforts she has made has been 
 
         without the help of Jimmy Dean.  Claimant was correct in her 
 
         brief by stating that this agency has held that predicting the 
 
         success of vocational retraining and/or future employment 
 
         searches as a result of such training is speculation and not a 
 
         proper factor in measuring an injured worker's current industrial 
 
         disability.  Stewart v. Crouse Cartage Co., Appeal Decision filed 
 
         February 20, 1987.  Umphress v. Armstrong Rubber Co., Appeal 
 
         Decision filed August 27, 1987.  On the other hand, this agency 
 
         is available upon proper application in the future by defendants 
 
         to review such matters when more facts are available as to the 
 

 
         
 
         
 
         
 
         PHILLIPS V. JIMMY DEAN MEAT COMPANY
 
         PAGE   8
 
         
 
         
 
         success of her current retraining effort.
 
         
 
              According to the rehabilitation counselor retained by 
 
         defendants, claimant's employment options are quite limited 
 
         without retraining and a loss of the opportunity to perform 
 
         production work has a very significant effect upon tier current 
 
         earnings.  The highest paid jobs in the area of her residence are 
 
         production jobs.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 60 percent loss in 
 
         her earning capacity from her work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 300 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 60 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  The work injury of March 22, 1985 and the resulting 
 
         permanent partial impairment was a cause of a 60 percent loss of 
 
         earning capacity.  Claimant is 33 years of age and is a high 
 
         school graduate.  Claimant's only employment prior to Jimmy Dean 
 
         has been as a grocery store checker.  Claimant was a meat packer 
 
         at Jimmy Dean's for five years.  Claimant experienced neck and 
 
         low back pain following a car accident in March, 1983, and carpal 
 
         tunnel problems in October, 1983.  However, neither of these 1983 
 
         injuries resulted in permanent impairment or permanent 
 
         disability, although claimant did have some lingering pain in her 
 
         wrists after the carpal tunnel surgery.  As a result of the March 
 
         22, 1985 injury, claimant has permanent impairment and permanent 
 
         work restrictions against heavy lifting, overhead reaching, 
 
         repetitive use of her hands and arms and a prohibition against 
 
         production work.  Claimant has been compelled to leave her 
 
         employment at Jimmy Dean in December, 1986 upon the advice of her 
 
         physicians and must retrain herself to avoid a huge loss of 
 
         earning capacity.  Claimant suffered a significant loss of 
 
         earnings as a result of her inability to return to work at Jimmy 
 
         Dean.  Claimant is currently successful in her educational 
 
         pursuits to secure a business degree, but the ultimate success of 
 
         the education and its effect upon her earning capacity at this 
 
         time is unknown.  Claimant has only worked in low paying jobs 
 
         since leaving Jimmy Dean.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to 300 of 
 
         permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant three hundred (300) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred ten and 82/100 dollars ($210.82) from February 20, 1987.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         for the periods of time stipulated in the prehearing report.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 

 
         
 
         
 
         
 
         PHILLIPS V. JIMMY DEAN MEAT COMPANY
 
         PAGE   9
 
         
 
         
 
         sum and shall receive credit against this award for the benefits 
 
         previously paid as stipulated in the prehearing report.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 30th day of November, 1988.
 
         
 
         
 
         
 
         
 
                                           LARRY P.WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         700 Grand Ave.
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Glenn Goodwin
 
         Attorney at Law
 
         4th Floor Equitable Bldg.
 
         Des Moines, Iowa  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803
 
                                              Filed November 30, 1988
 
                                              LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KARLA PHILLIPS,
 
         
 
              Claimant,
 
                                                 File No. 790649
 
         vs.
 
                                              A R B I T R A T I O N
 
         JIMMY DEAN MEAT COMPANY,
 
                                                 D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 60 percent industrial disability for an 
 
         inability to return to work as a meat packer as a result of 
 
         permanent impairment and permanent restrictions imposed upon 
 
         claimant by her physicians as a result of a work injury.  
 
         Although claimant is currently attempting to retrain herself and 
 
         is attending a community college in pursuit of a business degree, 
 
         it was held that predicting success of this educational effort 
 
         would be speculation and improper in the assessment of industrial 
 
         disability as previously held in an appeal decision of Stewart v. 
 
         Crouse Cartage Co., filed February 20, 1987.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         DELBERT F. SEIBERT, SR.,
 
         
 
              Claimant,
 
                                           FILE NOS. 790700 &  790701
 
         VS.
 
                                             A R B I T R A T I 0 N
 
         JOHN MORRELL & COMPANY,
 
                                                D E C I S I O N 
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         _________________________________________________________________
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Delbert F. 
 
         Seibert, Sr., claimant against John Morrell & Company, employer 
 
         and self-insured defendant, for benefits as a result of an injury 
 
         (heart attack) that occurred on August 15, 1983 and another 
 
         injury (heart attack) that occurred on June 6, 1984.  A hearing 
 
         was held on November 24, 1986 at Storm Lake, Iowa and the case 
 
         was fully submitted at the close of the hearing.  The record 
 
         consists of joint exhibits A through F, the testimony of Delbert 
 
         F. Seibert, Sr., (claimant) and Dennis Howrey (personnel and 
 
         labor relations manager).  Excellent briefs were submitted by 
 
         each attorney.
 
         
 
         DATE OF INJURY CLARIFICATION
 
         
 
              The first report of injury and the petition give a date of 
 
         the second injury (heart attack) as June 2, 1984.  The prehearing 
 
         report uses the date of June 8, 1984.  However, claimant 
 
         testified that his second heart attack occurred on June 6, 1984 
 
         (Exhibit F, page 18) and the hospital admission date is shown as 
 
         June 6, 1984 (Ex. A, Deposition Ex. A).  Therefore, the date of 
 
         June 6, 1984 will be used as the second injury (heart attack) 
 
         date in this decision.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of both of the alleged 
 
         injuries.
 
         
 
              That there was no dispute to be resolved about the 
 
         claimant's entitlement to temporary disability benefits as a 
 
         result of the first injury which occurred on August 15, 
 
         1983, if the injury is found to be compensable.
 
         
 
              That the time off work for which the claimant seeks 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page   2
 
 
 
 
 
         temporary disability benefits as a result of the second alleged 
 
         injury which occurred on June 6, 1984 is from June 6, 1984 to 
 
         September 27, 1984 in the event of an award.
 
         
 
              That in the event of an award of permanent partial 
 
         disability, the disability is industrial disability and the 
 
         commencement date of benefits is September 27, 1984.
 
         
 
              That the weekly rate of compensation in the event of an 
 
         award is $209.44 per week.
 
         
 
              That the claimant's entitlement to medical benefits is no 
 
         longer in dispute.
 
         
 
              That there is no claim for credits nor any bifurcated 
 
         proceedings.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the claimant sustained an injury on August 15, 1983 
 
         and another injury on June 6, 1984 arising out of and in the 
 
         course of his employment with the employer.
 
         
 
              Whether either injury was the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether the claimant is entitled to temporary disability 
 
         benefits as a result of the injury on June 6, 1984.
 
         
 
              Whether the claimant is entitled to permanent disability 
 
         benefits as a result of either injury to include whether the 
 
         claimant is an odd-lot employee or otherwise entitled to 
 
         permanent total disability.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was born on July 15, 1928 at Moulton, Iowa near 
 
         Ottumwa.  He was 58 years old at the time of the hearing and 55 
 
         years old at the time of both of his heart attacks, one of which 
 
         occurred on August 15, 1983 and the other one on June 6, 1984.  
 
         Claimant graduated from high school in 1948 at the age of 20 
 
         because he had difficulty as a student.  He started to work for 
 
         the employer after high school on November 2, 1948.  He passed a 
 
         preemployment physical examination.  He continued to work for the 
 
         employer for approximately 36 years until his second heart attack 
 
         on June 6, 1984 and his voluntary retirement in November of 1984.  
 
         He did spend two years in the military service in 1950 and 1952 
 
         for the Korean conflict at which time he served as a maintenance 
 
         man in the field artillery in the Army in Japan.  Claimant worked 
 
         at the Ottumwa plant for 25 years until it closed in 1973.  Then 
 
         he transferred to the Estherville plant.  Most of his career he 
 
         worked on the hog kill floor snatching guts (removing viscera), 
 
         dropping bung guts (a related job), cutting spermatic cords or as 
 
         a utility man performing any job that might be designated as a 
 
         relief man.
 

 
          SEIBERT V. JOHN MORRELL & COMPANY                             
 
          Page   3
 
         
 
 
 
              The claimant's testimony as related in this summary of the 
 
         evidence is a combination of what claimant testified to in his 
 
         deposition (Ex.  F) and what he testified to at the time of the 
 
         hearing.
 
         
 
              The Estherville plant shut down generally from June of 1982 
 
         until August of 1983, a period of approximately 14 months.  When 
 
         the plant opened claimant went back to dropping bung guts.  This 
 
         job amounts to cutting out the anus of a hog with a butcher knife 
 
         and pushing the bung and bung guts through the hip bones which 
 
         have already been fractured so that the bung and bung guts can be 
 
         removed with the other intestinal viscera by other employees.  
 
         Claimant testified it did not require a lot of physical exertion 
 
         but it was fast (Ex. F, p.7).  Claimant testified that he did not 
 
         want to go back to bung guts and he told them he did not think he 
 
         could do it (Ex.  F, p. 7).  He was soft physically from being 
 
         off work during the shut down (Ex.  F, p. 9). In addition, the 
 
         employer planned to speed up the chain faster than he had ever 
 
         worked before (Ex. F, p.8).  Moreover, previously two men had 
 
         dropped bung guts and now he would be the only man on this job.  
 
         Furthermore, he was upset because the employer reduced his wages 
 
         from approximately $11.00 per hour when the plant closed to 
 
         approximately $8.00 per hour when the plant reopened.  This 
 
         amounted to approximately a 25 percent cut in wages.  He 
 
         testified that he did the job because he had to earn a living.  
 
         He also conceded that he chose this job; he bid on it and got it 
 
         because he needed money after being out of work for over a year.  
 
         However, he was not able to keep up.  It was necessary to shut 
 
         down the line on account of him several times.  The foreman told 
 
         him that if he could not do the job that they would find someone 
 
         else who could and get rid of him.  He felt depressed, disturbed 
 
         and did not know what he would do if he got fired.
 
         
 
              Then at approximately 9:00 a.m. on August 15, 1983, two and 
 
         one-half days after the plant had reopened, claimant could not 
 
         keep up.  The line shut down.  Roger Hewitt, his foreman, yelled 
 
         at him.  Thirty minutes later he had his first heart attack.  His 
 
         shoulder ached, he had chest pain and he got dizzy (hearing 
 
         testimony).  He got weak in the knees, short of breath, and had 
 
         chest pain (Ex  F, p.10).  The plant nurse took his blood 
 
         pressure and pulse and sent him to the hospital for about three 
 
         weeks (Ex.  F, p. 11).  He did not return to work until January 
 
         3, 1984 (Ex.  F, p. 12).  At that time he was released to do 
 
         light work which consisted mainly of maintenance jobs (Ex.  F, p. 
 
         13).
 
         
 
              In May of 1984, a foreman came to the maintenance shop and 
 
         told claimant that he was needed back on the production line on 
 
         the kill floor cutting out spermatic cords.  In his deposition 
 
         claimant said this foreman was Roger Hewitt.  In his hearing 
 
         testimony he said this foreman was Bob Reed.
 
         
 
              Barrows are castrated male hogs.  Cutting out spermatic 
 
         cords consists of cutting out the scar tissue, a little red cord 
 
         and a bladder at the end of it with a knife on each side of the 
 
         barrow.  Claimant characterized this as a very difficult job 
 
         because he had to work with his hands above his head all of the 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page   4
 
 
 
 
 
         time with no chance to rest them at his side (Ex. F, p. 17).  
 
         Claimant testified that Donald Wolters, M.D., his physician, had 
 
         advised him not to work with his hands over his head.  However, 
 
         claimant testified that when he started on this job he thought he 
 
         could do it.  However, after he started it he found out that he 
 
         could not keep up.  He consulted Dr. Wolters who recommended that 
 
         claimant go back to light duty again.  However, his foreman, 
 
         Roger Hewitt, told claimant that there was not anything else he 
 
         could do so he did not know what to tell claimant (Ex. F, p. 
 
         17).
 
         
 
              When too many barrows came down the line without gilts in 
 
         between, claimant could not keep up and it was necessary to stop 
 
         the line.  Then one of the foremen -- either Bob Reed, Orville 
 
         Molan or Roger Hewitt -- would chew him out.  They took turns.  
 
         They indicated that if he could not do the job they would find 
 
         someone else who could.  Claimant received the impression he 
 
         would be fired (Ex.  F, pp. 18 & 19).  Claimant admitted, 
 
         however, that he did not know of any employee who was ever fired 
 
         because they could not do a certain job.
 
         
 
              Then approximately two weeks after he went back to the line 
 
         cutting spermatic cords at approximately 9:00 a.m. on June 6, 
 
         1984 Bob Reed yelled at him for stopping the line.  About 15 
 
         minutes later claimant had his second heart attack.  He felt pain 
 
         in his shoulder and chest and became short of breath.  The nurse 
 
         told him he was having a heart attack and sent him back to the 
 
         hospital for several days (Ex. F, pp. 19 & 20).  Claimant 
 
         testified at the hearing that he has not worked since that day.  
 
         However, he was released for light duty again and he asked Dennis 
 
         Howrey if he could return to work, but was told that the employer 
 
         had no light duty jobs for him.  In his deposition claimant 
 
         testified that he was never released to go back to work (Ex. F., 
 
         p. 21).  Claimant testified that he took voluntary retirement 
 
         because he could not get light duty at the employer's and he 
 
         needed money.
 
         
 
         
 
         
 
              Claimant testified that he had no prior heart problems 
 
         before these two heart attacks.  He quit smoking after the first 
 
         heart attack.  He currently has pain if he climbs stairs or walks 
 
         too fast, does anything that takes any strain, lifting or heavy 
 
         work (Ex. F, p. 22).  He does not mow the yard, rake the yard, 
 
         shovel snow or,carry heavy groceries.  He carried his wife's 
 
         suitcases up three steps, blacked out and fell back down the 
 
         steps.  He has not sought any employment since his last heart 
 
         attack (Ex. F, p. 23).  He has no plans or intention of seeking 
 
         other employment (Ex. F, p. 24).  He has not investigated any 
 
         vocational rehabilitation programs.  Social security did not 
 
         recommend vocational rehabilitation due to his age.
 
         
 
              Claimant testified that he has had diabetes for 
 
         approximately 20 years since he was 35 years old for which he 
 
         takes insulin (Ex. F, p. 22).  He has what is known as brittle 
 
         diabetes which is a more severe and difficult to control form of 
 
         diabetes.  Claimant stated that he had two brothers die from 
 
         heart attacks prematurely.  His mother and father died of heart 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page   5
 
 
 
 
 
         attacks but not until their old age in their 70,'s.  His father 
 
         also had diabetes (Ex. F, pp. 26 & 27).
 
         
 
              Claimant testified he moved back to the Ottumwa area in 
 
         April of 1986.  He now receives a pension of $476.77 a month from 
 
         John Morrell & Company and a disability pension from Social 
 
         Security in the amount of $717.00 for a total retirement income 
 
         of $1,193.77. It was demonstrated that claimant was receiving 
 
         more income now than when he was working earning wages.  
 
         Moreover, social security disability also entitles the claimant 
 
         to Medicare coverage.  Claimant testified that he is out of 
 
         condition.  His current activities are limited to short walks, 
 
         watching television and fishing for channel cat.  He said that he 
 
         was enjoying retirement and that he fishes every day in the 
 
         summer.  Claimant agreed that if he took a full-time job that he 
 
         would lose his social security benefits.  Nevertheless, he 
 
         testified that he would go back to work if he were able to do 
 
         so.
 
         
 
              Dean Hanson, chief union steward and 30 year Morrell 
 
         employee, corroborated claimant's testimony on several points.  
 
         He testified that when the plant reopened in August of 1983, the 
 
         employees suffered a wage cut of approximately 25 percent.  Many 
 
         workers were eliminated and the remaining employees were required 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page   6
 
 
 
 
 
         to do more work.  The speed of the chain was increased.  The 
 
         employees had agreed to lower wages but not the increase in work.  
 
         The employees were bitter and upset.  The increase in work 
 
         doubled their madness and reprisal against the company (Ex. D, 
 
         pp.5-9).
 
         
 
              After the first heart attack the company wanted the claimant 
 
         to work on the line because he was the only qualified person; 
 
         whereas claimant and the union wanted claimant to have a 
 
         rehabilitation job.  Both Hanson and the divisional steward, Irwin 
 
         Booth, tried to get claimant off the line but the foreman would 
 
         not bring him off.  Hanson and other union representatives 
 
         were involved a number of times because claimant could not 
 
         keep up; the chain was stopped; and the foreman were yelling 
 
         at claimant to do the job or they would find someone else 
 
         (Ex. D, pp. 12-14 and 24 & 25).  
 
         
 
         Hanson personally heard Roger Hewitt holler at claimant to hurry 
 
         up (Ex. D, p. 27).  Hanson was personally called to claimant's 
 
         station about four times in the two week period before the second 
 
         heart attack (Ex. D, p. 29).  The spermatic cord job was not one 
 
         that claimant had bid on.  He was there because the company 
 
         forced him there (Ex. D, p. 30).
 
         
 
              Dennis Howrey, personnel and labor relations manager for the 
 
         employer, testified that claimant bid on and therefore chose the 
 
         job of dropping bungs prior to his first heart attack.  The chain 
 
         speed on the dropping bungs job was 650 per hour when the plant 
 
         closed in 1982.  Due to an industrial engineering study it was 
 
         scheduled to increase to 780 per hour after the plant reopened in 
 
         August of 1984.  But it was to be increased over a period of time 
 
         because there were many new and inexperienced people on the line 
 
         when the plant reopened.  Howrey testified that on the day that 
 
         the claimant had his second heart attack that the chain speed was 
 
         set for 475 to 500 hogs per hour.  However, Howrey estimated that 
 
         the actual chain speed was probably 350 to 375 hogs per hour due 
 
         to many stoppages of the line.  Howrey testified that in his 
 
         opinion the speed of the chain was slower on that day then it was 
 
         when the plant closed.  The spermatic cord job was not considered 
 
         strenuous, but rather was in the nature of light duty or 
 
         restricted duty for a person who might have a hand laceration.  
 
         He knew of no one who was ever fired because he could not do a 
 
         job.  If claimant applied for a job today, at age 51 with two 
 
         heart attacks, Howrey would look at other applicants first.  It 
 
         is an employer's market.  There are many candidates to choose 
 
         from.
 
         
 
              Donald Wolters, M.D., testified that he is a physician in 
 
         family practice in Estherville, Iowa.  He treated claimant for 
 
         his first heart attack on August 15, 1983 and his second heart 
 
         attack on June 6, 1984.  He had not treated claimant for heart 
 
         problems prior to this time.  His medical diagnoses was 
 
         myocardial infarction each time substantiated by an 
 
         electrocardiogram and elevated enzymes.  After the second episode 
 
         Dr. Wolters advised claimant not to go back to the kind of work 
 
         he was previously doing because he had two episodes of myocardial 
 
         infarction while he was working there (Ex.  A, p. 8).  Dr. 
 
         Wolters stated that stress, both physical and emotional, was an 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page   7
 
 
 
 
 
         aggravating factor to the first myocardial infarction (Ex. A, p. 
 
         9).  He stated that claimant's job situation and attendant stress 
 
         probably aggravated his second myocardial infarction (Ex. A, p. 
 
         9).  In answer to a lengthy hypothetical question Dr. Wolters 
 
         indicated that claimant's job circumstances were both a possible 
 
         and probable cause or aggravation of claimant's second myocardial 
 
         infarction (Ex. A, p. 9-12).
 
         
 
              Dr. Wolters said that the first myocardial infarction 
 
         damaged the heart muscle.  This was evidenced by the 
 
         electrocardiogram and the abnormal amount of enzymes in the 
 
         bloodstream.  This would reduce the ability of the heart to 
 
         function under periods of stress and strain after the first heart 
 
         attack (Ex. A, pp. 17 & 18).  Claimant is unable to return to 
 
         his previous job as a probable result of the aggravation of his 
 
         heart condition by the physical and emotional stress involved by 
 
         his job at Morrell's (Ex. A, p. 28).  Claimant's heart condition 
 
         is permanent.  Dr. Wolters did not feel that claimant could 
 
         return to his former job on the production line with the employer 
 
         (Ex. A, pp. 12 & 13).
 
         
 
              Dr. Wolters granted that claimant had been an insulin 
 
         diabetic for approximately 25 years and that diabetics tend to 
 
         develope cardiovascular disease at a greater rate than persons 
 
         who are not diabetics (Ex. A, pp. 14 & 15).  He stated that 
 
         claimant has ischemic heart disease.  There is an insufficient 
 
         amount of blood profusing the heart because of the diminished 
 
         caliber of his coronary arteries (Ex. A, pp. 15 & 16).  There 
 
         was also evidence that claimant smoked a pack of cigarettes a day 
 
         for approximately 39 years from age 16 to age 55.  Dr. Wolters 
 
         referred claimant to Robert J. Blommer, M.D., who is an internal 
 
         medicine specialist in Ottumwa, Iowa.  Dr. Blommer noted that 
 
         claimant also had a history of alcohol excess (Ex. A, Dep. Ex. 
 
         1).  However, claimant denied it in his testimony and there was 
 
         no evidence of it in any other medical records.
 
         
 
              Dr. Wolters said that even though claimant's heart attacks 
 
         were not severe, nevertheless, the fact claimant has more 
 
         discomfort with less exertion is due to the heart attacks because 
 
         he did not think that claimant's diabetic condition had changed 
 
         all that much (Ex. A, pp. 18 & 19).  He said that claimant had a 
 
         more severe form of diabetes known as brittle diabetes in which 
 
         his blood sugar level fluctuates rapidly, uncontrollably and 
 
         unpredictably.  This increased the claimant's predisposition for 
 
         myocardial infarction (Ex. A, pp. 20 & 21).
 
         
 
              Although claimant could not go back to the same kind of work 
 
         on the production line, Dr. Wolters did feel that claimant was 
 
         not totally disabled.  He should avoid work meeting quotas or 
 
         certain demands because claimant was a very hard worker.  The 
 
         plant nurse was concerned about allowing him to go back to work 
 
         because claimant did not know when to quit (Ex. A, p. 22).  Dr. 
 
         Wolters said claimant could work at a gas station, work as a 
 
         night watchman or sort nuts and bolts.  He could drive a tractor 
 
         and do field work but could not throw bales, do heavy lifting or 
 
         stand mental stress or strain.  He could work as a clerk in a 
 
         store (Ex. A, p. 23).  He believed claimant could have returned 
 
         to some kind of light duty work within three to four months after 
 
         
 
        SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page   8
 
 
 
 
 
         the onset of his second heart attack generally and more 
 
         specifically on September 27, 1984 (Ex. A, p. 27).
 
         
 
              Dr. Wolters said he agreed with two statements from the book 
 
         entitled the Heart written by Jay Willis Hurst, copyright 1986.  
 
         Those two quotes are as follows:
 
         
 
                   Quote.  "A single, isolated, identified physical 
 
              or emotional stress in individuals rendered susceptible 
 
              to harm therefrom by reason of preexistent heart 
 
              disease, whether or not previously known or 
 
              symptomatic, if of sufficient intensity and duration, 
 
              is capable of eliciting adverse cardiac responses 
 
              which, in turn, can trigger or hasten certain cardiac 
 
              lesions and dysfunctions such as an acute attack of 
 
              angina pectoris or an acute myocardial infarction, a 
 
              cardiac dysrhythmia (including sudden death therefrom), 
 
              and a bout of acute congestive heart failure.' Close 
 
              quote.
 
              (Ex. B, p. 4)
 
         
 
                   Quote.  "The shorter the time interval between the 
 
              exposure of an individual to a potentially noxious 
 
              stimulus and the appearance of clinical or pathologic 
 
              evidence of new heart disease or dysfunction, the more 
 
              likely there is a causal relationship between the two.  
 
              Conversely, the farther apart in time, the less likely 
 
              is a cause and effect relation." Close quote.
 
              (Ex. B, p. 5)
 
         
 
              Dr. Wolters did not assess an impairment rating (Ex. A & 
 
         B).  Dr. Blommer made no comment on causal connection, impairment 
 
         nor did he give an impairment rating (Ex. A, Dep. Ex. 1).
 
         
 
              Claimant was examined at the Mercy Occupational Evaluation 
 
         Center (MOEC) at Des Moines on November 26, 1985 by Dr. Paul 
 
         From, M.D., and Robert W. Jones and G. Patrick Weigel, vocational 
 
         rehabilitation personnel.  They submitted a report and evaluation 
 
         dated December 3, 1985 (Ex. E, Dep. Ex. 1).  Dr. From also 
 
         testified by deposition that he is an internal medicine doctor 
 
         who works a lot with heart problems.  He is the founder and 
 
         director of the MOEC (Ex. E, pp. 4 & 5).  He found that claimant 
 
         had a number of significant health problems: (1) diabetes 
 
         mellitus; (2) arteriosclerotic coronary artery disease; (3) 
 
         possible anginal syndrome; (4) cataract in the right eye; (5) 
 
         arteriosclerosis obliterans of the lower extremities; (6) chronic 
 
         bronchitis from previous tobacco abuse; (7) seborrheic; (8) 
 
         complications of diabetes with microaneurysms, retinopathy, and 
 
         peripheral neuropathy; (9) benign prostatic hyperplasia (10) past 
 
         history of bicipital tendonitis; and (11) status post 
 
         appendectomy, hemorrhoidectomy, fracture of the left clavical and 
 
         fracture of the ribs (Ex. E, pp. 19 & 20).  A number of these 
 
         diseases are risk factors and create a predeposition for a heart 
 
         attack: (1) family history of heart disease and diabetes; (2) 
 
         longstanding diabetes mellitus; (3) vascular problems in the 
 
         lower extremities, eyes and heart; (4 ) wide spread 
 
         arteriosclerotic disease; and, (5) tobacco abuse that accelerated 
 
         coronary artery disease (Ex. E, pp. 22 & 23 and 33-36).
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page   9
 
         
 
              Dr. From said it would be impossible for him to say whether 
 
         dropping bung guts or cutting spermatic cords caused claimants 
 
         myocardial infarctions.  It is possible.  It did occur at work.  
 
         Packinghouses subject workers to physical and psychological 
 
         stress.  He stated that he agrees with the American Heart 
 
         Association that myocardial infarctions are usually 
 
         multifactorial.  Myocardial infarctions usually occur when they 
 
         are going to occur anyway.  Most of them occur while at rest.  He 
 
         concluded by saying, "I think that I would say that since it did 
 
         occur there, it is possible it was related and that I could not 
 
         say more than that" (Ex. E, pp. 24-26).
 
         
 
              Dr. From conceded that he was not aware of the precise 
 
         physical stresses or any of the emotional stresses on claimant at 
 
         the time of his heart attacks (Ex. E, pp. 36-43).  However, he 
 
         still maintained the cause was multifactorial.  Dr. From said 
 
         that claimant's heart disease was caused by diabetes, aging, 
 
         background genetics, and arteriosclerosis.  But it was possible 
 
         that his work at Morrell's aggravated his coronary diseases to 
 
         infarction.  The fact he had two heart attacks at work would make 
 
         it even more possible but he could not bring himself to say that 
 
         the job caused the infarctions.  He would not, however, dispute 
 
         Dr. Wolters' opinion that it was probable (Ex. E, pp. 43-45).
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  10
 
         
 
              Based on his own tests, Dr. From stated that the permanent 
 
         functional impairment would not be in the sedentary range.  
 
         Rather claimant had the ability to do work like painting, 
 
         masonry, paper hanging and light carpentry work.  In the 
 
         recreational activity area claimant could walk three and one-half 
 
         miles per hour, bicycle, play table tennis, fox trot, play single 
 
         badminton, play double tennis, rake leaves, hoe in a garden and 
 
         perform many calisthenics.  Dr. From said that claimant has some 
 
         impairment, but some of it may be due to deconditioning and 
 
         psychological factors (Ex. E, pp. 26 & 27).  All of claimant's 
 
         impairment may not be due to his heart.  Claimant has no heart 
 
         failure, no anginal syndrome, no significant arrhythmia, he takes 
 
         only a mild heart pill and he could meet the stress on Dr. From's 
 
         stress test.  So he was not completely disabled.  His other 
 
         health problems may be a part of his total disability.  He can 
 
         work at a sedentary to moderate activity level and, therefore, he 
 
         is not completely impaired or totally disabled.  Based on AMA 
 
         Guidelines, claimant's degree of physical impairment would be 
 
         less than 20 percent of the whole man (Ex. E, pp. 27-30 and p. 
 
         53).
 
         
 
              When Dr. From refers to the whole man he means his 
 
         impairment due to this heart, blood vessels, nerves, years of 
 
         tobacco abuse and diabetes all at once (Ex. E, p. 58).
 
         
 
              Later in his testimony Dr. From said that claimant had an 
 
         impairment of about one-fourth to one-fifth of a man and the 
 
         whole man impairment is the result of all of these problems 
 
         (Ex. E, p.59).
 
         
 
              Dr. From said that claimant could perform light to medium 
 
         work and lift and carry 25 pounds.  However, claimant should 
 
         avoid moving machinery and electrical hazards.  Claimant could do 
 
         stockroom clerking, mail room clerking, mechanical repair work 
 
         done at a bench, security guard and light custodial work (Ex.  E, 
 
         pp. 31 & 32 and Dep.  Ex. 1, p. II-3).
 
         
 
              Dr. From stated that claimant's biggest problem is the 
 
         ongoing process of artery disease that both predated and 
 
         postdated these two heart attacks.   He believed that since 
 
         claimant is a diabetic without good control that he will suffer 
 
         another infarction before too many months or years go by.  
 
         Coronary artery disease has no known cure but possibly things 
 
         could be done to help bide him over some more time (Ex. E, pp. 
 
         30 &31).
 
         
 
              Stanley W. Thorpe testified by deposition that he is a 
 
         vocational rehabilitation specialist who saw and evaluated 
 
         claimant in December of 1985.  He took a family history, a work 
 
         history and administered several tests (Ex. C, pp. 1-15).        
 
         All of his scores were low, typical of a person with no career 
 
         choices or dreams, which may have been indicative of his age, 
 
         physical condition and health.  It was indicative of a person 
 
         thinking of retirement (Ex. C, p. 16).  His intelligence would 
 
         not qualify him for an entry level job (Ex. C, pp. 18 & 19).  
 
         Claimant had third and fourth grade reading abilities (Ex.  C, p. 
 
         20).  Thorpe testified that given claimant's age, education, job 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  11
 
 
 
 
 
         experience, health and vocational abilities, the services that 
 
         claimant is capable of performing are so limited in quality, 
 
         quantity, dependability, or availability that they do not exist 
 
         in a reasonably stable competitive job market (Ex. C, pp. 26 & 
 
         27).  The jobs Dr. From suggested are not available on a regular 
 
         and continuous basis and if they were claimant could not do them 
 
         (Ex. C, p. 27).  If they were available and claimant could do 
 
         them they would pay the minimum wage of approximately $3.50 per 
 
         
 
         hour.  Claimant was earning approximately $8.25 per hour when he  
 
         suffered his second myocardial infarction (Ex. C, p. 27 & 28).  
 
         Thorpe said that 95 percent of his placements are in Des Moines  
 
         or Minneapolis.  He places about 40 percent of the people he  
 
         trains.  Possibly due to retirement claimant was not motivated to 
 
         achieve.  Claimant did not ask Thorpe to find him a job.  He 
 
         evaluated him only.  Thorpe acknowledged that claimant was 
 
         receiving approximately $1200 per month and that if he went back 
 
         to work he would lose his social security disability retirement 
 
         benefit and also Medicare coverage (Ex.  C, pp. 29-37).  He 
 
         thought, however, that claimant's lack of motivation might stem 
 
         from his physical disabilities and his heart attacks (Cl.  Ex.  
 
         C, pp. 37 & 38).  The witness granted that his testimony was 
 
         inconsistent with a number of things that Dr. From listed that 
 
         the claimant was able to do and that it was also inconsistent 
 
         that the claimant did not do anything at the present time (Ex.  
 
         C, p. 39).  It was Thorpe's final conclusion that claimant was 
 
         fully disabled (Ex. C, Dep.  Ex. 1).  Thorpe read the MOEC 
 
         evaluation and disagreed with several particulars in it.  Thorpe 
 
         still felt that the claimant was fully disabled (Ex. C, Dep.  
 
         Ex. 1).
 
         
 
                          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(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on August 15, 1983 and June 6, 
 
         1984 which arose out of and in the course of his employment. 
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol.  Sch.  Dist., 246 Iowa 
 
         402, 68 N.W.2d 63  (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.28 63
 
         (1955).
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  12
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm.  Sch.  Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971), 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.] Likewise a personal injury 
 
              includes a disease resulting from an injury... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.] 
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature, and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some,function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d.756, 76O-761 
 
         (1956).  If the-claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist, 218 Iowa 724, 254 N.W. 35 (1934).  See also 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  13
 
 
 
 
 
         Auxier v. Woodward State Hosp.  Sch., 266 N.W.2d 139 (Iowa 1978); 
 
         Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
         v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. 
 
         Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 
 
         (1960).
 
         
 
              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, 252 Iowa 613, 
 
              620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler, 252 Iowa 
 
         613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The question is whether the diseased condition was the cause 
 
         or whether the employment was a proximate contributing cause 
 
         Musselman, 154 N.W.2d 128, 132 (1967).  A cause is proximate if 
 
         it is a substantial factor in bringing about a result.  It only 
 
         needs to be one cause; it does not have to be the only cause.  
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  14
 
 
 
 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).  In addition, it has been stated by Larson:
 
         
 
                   If there is some personal cause or contribution in 
 
              the form of a previously weakened or diseased heart, 
 
              the employment contribution must take the form of an 
 
              exertion greater than that of non-employment life.  The 
 
              comparison is not with the employee's usual exertion in 
 
              his employment but with exertions of normal 
 
              non-employment life of this or any other person. 1B 
 
              Larson 38.83, p.7-237
 
         
 
              The Iowa Supreme Court has adopted the Larson test 
 
         Briarcliff College v. Campolo, 360 N.W.2d 91, 94, 95 (Iowa 
 
         1984).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 15, 1983 and June 6, 
 
         1984 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the 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, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.
 
         
 
              The opinion of the supreme court in Olson, 255 Iowa 1112, 
 
         1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision 
 
         of the industrial commissioner for the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . .  In 
 
              determining industrial disability, consideration may be 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  15
 
 
 
 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted.* * * *
 
         
 
              Claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury arising 
 
         out of and in the course of his employment with the employer at 
 
         the time ' of his first myocardial infarction on August 15, 1983 
 
         and at the time of the second myocardial infarction on June 6, 
 
         1984.  Claimant and Dr. Wolters (his family doctor and treating 
 
         physician) both testified that claimant had no heart problems 
 
         prior to his first myocardial infarction.  Dr. Wolters, Dr. From 
 
         and other physicians all found that claimant did have severe and 
 
         longstanding diabetes mellitus, ischemic heart disease, 
 
         arteriosclerotic coronary artery disease, family history of heart 
 
         disease and was a cigarette smoker for approximately 40 years 
 
         before his first heart attack.  Claimant also had a number of 
 
         other health problems.  There was general agreement that most of 
 
         these conditions were all risk factors and predisposed a heart 
 
         attack at some time.  Moreover, claimant's form of brittle 
 
         diabetes which was unpredictable and uncontrollable increased his 
 
         predeposition for a myocardial infarction.  Dr. Wolters testified 
 
         that both physical and emotional stress at work were aggravating 
 
         factors to both the first and second myocardial infarctions.  He 
 
         indicated that the job circumstances were both a possible and 
 
         probable cause or aggravation.  Dr. Wolters agreed with the quote 
 
         from the book entitled Heart to the effect that physical and 
 
         emotional stress can cause an infarction in people with a 
 
         preexisting condition and that the shorter the interval between 
 
         the stress and the infarction the more likely there was a causal 
 
         relationship.  In this case, both the claimant's infarctions 
 
         incurred shortly after he was hollered at.  Also, he had been 
 
         placed under the stress of the line stoppages and his perceived 
 
         threat of losing his job of 35 years.
 
         
 
              Dr. From preferred to believe that heart attacks are 
 
         multifactorial and occur when they are going to occur anyway as 
 
         the result of the underlying conditions that predispose them.  He 
 
         thought that it was impossible to say what specifically caused 
 
         claimant's heart attack.  However, he conceded that it was 
 
         possible that claimant's work of dropping bung guts and cutting 
 
         out spermatic cords under the circumstances of this case either 
 
         caused or aggravated the infarction.  Dr. From freely 
 
         acknowledged that both infarctions did occur while at work.  He 
 
         stated that this increased the possibility.  Dr. From said that 
 
         he did not dispute the opinions of Dr. Wolters that it was 
 
         probable.  Dr. From's testimony does not controvert, contradict 
 
         or refute Dr. Wolters' testimony.  If anything, it supports Dr. 
 
         Wolters' testimony by saying that it was possible that the work 
 
         caused or aggravated the infarctions.
 
         
 
              It is true that claimant had natural changes occurring in 
 
         his body.  However, the myocardial infarctions under the facts of 
 
         this case are an extraneous factor that are the result of 
 
         exertion and stresses greater than those normally found in 
 
         non-employment life.
 
         
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  16
 
 
 
 
 
              The res gestae of the first infarction support Dr. Wolters' 
 
         opinion.  Claimant had been off work for 14 months.  He was soft 
 
         and deconditioned.  He had only been back to work for two and 
 
         one-half days.  He was now working alone dropping bung guts 
 
         rather than working with another man.  The speed of the chain was 
 
         in the process of being increased.  Claimant could not keep up. 
 
         The chain was shut down several times.  When this occurred the 
 
         foreman chewed him out and claimant was told to either do the job 
 
         or they would find somebody else who could.  Claimant perceived 
 
         that his only method of livelihood of the past 35 years was in 
 
         immediate jeopardy.  The foreman yelled at him.  Thirty minutes 
 
         later claimant had his first myocardial infarction on August 15, 
 
         1983.  The fact that claimant had incurred a 25 percent wage cut 
 
         when the plant reopened may also have been a factor.
 
         
 
              At the time of the second myocardial infarction claimant had 
 
         been returned to the line cutting spermatic cords after six 
 
         months of light duty.  He had to work with his hands and arms 
 
         raised at all times which was contrary to Dr. Wolters' 
 
         recommendations.  He consulted Dr. Wolters and Dr. Wolters told 
 
         him to go back to light duty.  However, the foreman said he did 
 
         not have any light duty for him.  Claimant tried to do the job 
 
         but he could not.  He caused several line stoppages.  The foreman 
 
         chewed him out.  Too many barrows came along in one group and the 
 
         line stopped.  The foreman yelled at him.  Fifteen minutes later 
 
         he had the second myocardial infarction on June 6, 1984.
 
         
 
              Hansen, the chief union steward, corroborated claimant's 
 
         testimony on the stressful conditions in general.  In particular, 
 
         he testified that he and others tried on several occasions to get 
 
         claimant removed from the stressful circumstances.  However, the 
 
         foreman refused saying claimant was the only qualified person to 
 
         do the job.  Hansen testified that he personally witnessed the 
 
         line stoppages and the claimant being yelled at.
 
         
 
              Howrey testified that the speed of the line on.the day of 
 
         the first myocardial infarction was less than when the plant 
 
         closed.  However, this was an estimate.  He did not testify from 
 
         plant records.  He may or may not have been correct.  It was 
 
         established that the line was in the process of being speeded up.  
 
         That was established.  Claimant could not keep up and was getting 
 
         pressure from the foreman.  That was established.  Defendants did 
 
         not introduce any evidence to contradict or rebut the fact that 
 
         the claimant was under pressure from the foreman and was being 
 
         yelled at.  Claimant was an extremely conscientious worker 
 
         according to the nurse.  She was concerned because he did not 
 
         know when to quit.  Claimant perceived that the only employment 
 
         he had known since high school and that his only source of income 
 
         for the last 35 years was in serious jeopardy at the time of the 
 
         second heart attack.
 
         
 
              Therefore, claimant has proven that both the physical and 
 
         psychological stress of his job aggravated his very serious and 
 
         multiple predepositions to myocardial infarction at the time of 
 
         both heart attacks.  Claimant has demonstrated that both the 
 
         physical and psychological stress was greater than non-employment 
 
         life.  There is no serious evidence to the contrary.  Claimant 
 
         has proven both myocardial infarctions are injuries arising out 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  17
 
 
 
 
 
         of and in the course of his employment with the employer.
 
         
 
         
 
              The parties have stipulated that there is no dispute 
 
         concerning claimant's entitlement to temporary disability 
 
         benefits as a result of the first myocardial infarction.  
 
         Accordingly, no determination is made on this point at this 
 
         time.
 
         
 
              The parties have stipulated that the claimant's time off 
 
         work for temporary disability benefits for the second myocardial 
 
         infarctions should be from June 6, 1984 to September 27, 1984.  
 
         Dr. Wolters testified that even though claimant could not return 
 
         to his old job, he could have returned to light duty work on 
 
         September 27, 1984.  This is evidence that indicates the claimant 
 
         obtained maximum medical improvement on September 27, 1984.  
 
         Therefore, it is found that claimant is entitled to healing 
 
         period benefits from June 6, 1984, the date of the second 
 
         infarction, to September 27, 1984, the date that it became 
 
         medically indicated that significant improvement from the injury 
 
         was no longer anticipated (Iowa Code section 85.34(l).
 
         
 
              Claimant is not permanently and totally disabled.  Both Dr. 
 
         Wolters and Dr. From said that claimant could not return to his 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  18
 
 
 
 
 
         old job on the production line.  However, both doctors specified 
 
         a number of jobs that the claimant could do.  Dr. Wolters said he 
 
         could work at a gas station, work as a night watchman or sort 
 
         nuts and bolts.  He could drive a tractor and do field work but 
 
         should avoid heavy bales and stress and strain.  He could work as 
 
         a clerk in a store or other light duty work.  Dr. From said 
 
         claimant could do more than sedentary things.  He could do such 
 
         tasks as painting, masonry, paper hanging and light carpentry 
 
         work.  Dr. From enumerated a number of energetic recreational 
 
         activities claimant could perform.  Some of claimant's disability 
 
         is due to deconditioning and psychological factors.  Claimant can 
 
         do light to medium work.  Claimant could do stockroom clerking, 
 
         mailroom clerking, mechanical repair work at a bench, security 
 
         guard and light custodial work.  Dr. From said that claimant's 
 
         biggest problem is the ongoing process of artery disease that 
 
         both predated and post-dated his heart attacks.  He believed that 
 
         claimant would suffer another myocardial infarction before too 
 
         many years or months due to the claimant's poorly controlled 
 
         diabetes.
 
         
 
              Claimant is not an odd-lot employee.  Professor Larson's 
 
         statement of the general rule indicates that in order to make a 
 
         prima facie case, claimant must demonstrate an effort to secure 
 
         employment in his area of residence.  Guyton v. Irving Jensen 
 
         Company, 373 N.W.2d 101, 105 (Iowa 1985).  Claimant testified in 
 
         his deposition and at the hearing that he had not sought any 
 
         employment and he had no intention to do so.
 
         
 
              Thorpe's opinion that claimant is fully disabled must be 
 
         discounted because it conflicts with the opinion of the two 
 
         medical doctors in this case.  Also, Thorpe found that the 
 
         claimant had no motivation to work.  Thorpe's tests indicated 
 
         that claimant was retired and indeed he was by virtue of his own 
 
         testimony at the hearing.  This was probably a wise choice on the 
 
         part of claimant.  He was suffering from a number of very serious 
 
         physical illnesses at the time of both heart attacks.  Moreover, 
 
         claimant was receiving more money in disability income than he 
 
         was receiving when he was earning wages.  In assessing the amount 
 
         of disability, consideration must be given to the employee's 
 
         plans for retirement.  Curtis v. Swift Independent Packing, IV 
 
         Iowa Industrial Commissioner Report 88 (1984) and claimant's 
 
         retirement benefits.  Swan v. Industrial Engineering Equipment 
 
         Co., IV Iowa Industrial Commissioner Report 353 (1984).
 
         
 
              Dr. Wolters did not designate a permanent impairment rating.  
 
         Dr. From assessed 20 percent of the body as a whole due to all of 
 
         the claimant's poor health conditions of heart, blood vessels, 
 
         nerves, tobacco abuse and diabetes.
 
         
 
              Claimant was age 55 at the time of the heart attacks.  He 
 
         
 
         has the benefit of a high school education, but he did have 
 
         difficulty as a student.  All of claimant's scores on Thorpe's 
 
         tests are low.  This appears to be both due to a lack of ability 
 
         and lack of incentive.  Claimant cannot go back to production 
 
         work or any work with stress and strain.  According to Dr. From 
 
         claimant's disability is mostly due to his many severe underlying 
 
         health conditions rather than his myocardial infarctions.  There 
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  19
 
 
 
 
 
         is a scar on claimant's heart muscle, but both of the infarctions 
 
         are over.  They are done.  However, his underlying diseases 
 
         continue.  Both Dr. Wolters and Dr. From thought that there were 
 
         a number of jobs that claimant could do if he chose to work.  
 
         Based on the foregoing considerations it is determined that 
 
         claimant has sustained an industrial disability of 25 percent of 
 
         the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That claimant was employed by the employer on August  15,
 
         1983 and June 6, 1984 and that he suffered a myocardial 
 
         infarction on each of these dates while at work.
 
         
 
              That prior to each of these heart attacks, claimant was 
 
         under inordinate physical and psychological stress at work and 
 
         due to work.
 
         
 
         
 
              That prior to both heart attacks claimant suffered from 
 
         multiple and severe underlying health problems of severe and 
 
         poorly controlled diabetes mellitus, ischemic heart disease, 
 
         arteriosclerotic coronary artery disease, had a family history of 
 
         heart disease, and smoked cigarettes approximately 40 years prior 
 
         to his first heart attack and had a number of other health 
 
         problems.
 
         
 
              That Dr. Wolters testified that it was both possible and 
 
         probable that the claimant's work aggravated his myocardial 
 
         infarctions.
 
         
 
              That Dr. From testified that it was impossible to say what 
 
         specifically caused the myocardial infarctions but that it was 
 
         possible that the claimant's work aggravated his preexisting 
 
         coronary disease to bring about the infarctions.
 
         
 
              The claimant was temporary disabled from June 6, 1984 to 
 
         September 27, 1984 as a result of the second heart attack.
 
         
 
              That claimant cannot return to production work but both Dr. 
 
         Wolters and Dr. From mentioned a number of jobs the claimant 
 
         could do.
 
         
 
              That claimant's worst disability is due to his underlying 
 
         diseases.
 
              
 
              That claimant is entitled to a 25 percent industrial 
 
         disability to the body as a whole.
 
         
 
              That claimant did not prove that he was an odd-lot employee 
 
         because he never sought any work of any kind.  He testified that 
 
         he had not sought work and that he had no intention of looking 
 
         for work.  Claimant stated that he was retired.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 

 
         SEIBERT V. JOHN MORRELL & COMPANY                             
 
         Page  20
 
 
 
 
 
              Based upon the evidence presented and the principles of law 
 
         previously stated, the following conclusions of law are made:
 
         
 
              That claimant did sustain an injury on August 15, 1983 and 
 
         June 6, 1984 at the time of the first and second myocardial 
 
         infarctions both of which arose out of and in the course of his 
 
         employment with the employer.
 
         
 
              That each of these myocardial infarctions were the cause of 
 
         temporary and permanent disability as an aggravation of a 
 
         preexisting underlying condition of diabetes and heart disease.
 
         
 
              That claimant is entitled to healing period benefits from 
 
         June 6, 1984 to September 27, 1984.
 
                      
 
              That claimant is entitled to permanent partial disability 
 
         benefits of 125 weeks commencing on September 27, 1984 for a 25 
 
         percent industrial disability of the body as a whole.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is permanently and totally 
 
         disabled either as an odd-lot employee or otherwise.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant sixteen point one-four-three 
 
         (16.143) weeks of healing period benefits from June 6, 1984 to 
 
         September 27, 1984 at the rate of two hundred nine and 44/100 
 
         dollars ($209.44) per week in the total amount of three thousand 
 
         three hundred eighty and 99/100 dollars ($3,380.99).
 
         
 
              That defendant pay to claimant one hundred twenty-five (125) 
 
         weeks of permanent partial disability as industrial disability at 
 
         the rate of two hundred nine and 44/100 dollars ($209.44) 
 
         commencing on September 27, 1984 in the total amount of 
 
         twenty-six thousand one hundred eighty and no/100 dollars 
 
         ($26,180.00).
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendant is to pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 including the 
 
         claimant's itemized costs as shown in paragraph D of the 
 
         prehearing report.
 
         
 
              That defendant is to file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 17th day of June, 1987.
 
         
 

 
        SEIBERT V. JOHN MORRELL & COMPANY                             
 
        Page  21
 
         
 
         
 
 
 
 
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                      
 
                   
 
         
 
         Copies To:
 
         
 
         Mr. Richard Meyer
 
         Attorney at Law
 
         104 North 7th St.
 
         P. 0. Box 496
 
         Estherville, Iowa 51334
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Bldg.
 
         P. 0. Box 7038
 
        Spencer, Iowa 51301
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1106; 1108.10; 1402.20
 
                                                 1402.30; 1802; 1803
 
                                                 2202; 2206; 4100
 
                                                 Filed June 17, 1987 
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         __________________________________________________________________
 
         
 
         
 
         DELBERT F. SEIBERT, SR.,
 
         
 
              Claimant,
 
         
 
                                                 FILE NOS. 790700 & 790701 
 
         VS.
 
         
 
                                                 A R B I T R A T I 0 N 
 
         JOHN MORRELL & COMPANY,
 
         
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         _________________________________________________________________
 
         
 
         1106; 1108.10; 1402.20; 1402.30; 1802; 1803; 2202;  2206;  4100
 
         
 
              Claimant, age 55 and 35 year employee, had two heart attacks 
 
         while at work, one on August 15, 1983 and one on June 6, 1985.  
 
         He also had many predisposing poor health conditions such as (1) 
 
         diabetes mellitis; (2) arteriosclerotic coronary artery disease; 
 
         (3) a family history of heart disease; and, (4) a 40 year history 
 
         as a cigarette smoker.  Minutes before each infarction claimant 
 
         was placed under great physical and psychological stress.  The 
 
         speed of the chain was increased, claimant could not keep up, 
 
         foremen yelled at him and threatened him with loss of the only 
 
         employment he has had since high school.  His own doctor said job 
 
         stress possibly and probably caused his heart attacks or 
 
         aggravated his preexisting condition.  Defendant's doctor said 
 
         true cause was unknown but it was possible that job stress 
 
         triggered the infarctions since they both did occur while at 
 
         work.  Held: Claimant did sustain an injury arising out of and in 
 
         the course of his employment for each infarction.  He was awarded 
 
         healing period benefits and 25 percent permanent partial 
 
         disability based on loss of earning capacity.  Claimant took 
 
         retirement after the second heart attack and did not look for 
 
         employment and said he had no intention of doing so; thus it was 
 
         held that he was not odd-lot.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANN SEIBERT, surviving spouse
 
         of DELBERT SEIBERT, SR.,
 
                                            File Nos. 790700 & 790701
 
              Claimant,
 
                                                  R E V I E W -
 
         vs.
 
                                               R E O P E N I N G
 
         
 
         JOHN MORRELL & COMPANY,                D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a review-reopening proceeding brought by JoAnn 
 
         Seibert, claimant, spouse of Delbert Seibert, Sr., decedent, 
 
         against John Morrell & Company, self-insured, employer, for death 
 
         benefits and burial expenses.  The case was heard by the 
 
         undersigned and it was fully submitted at the completion of the 
 
         hearing.
 
         
 
              The record consists of the testimony of JoAnn Seibert.  The 
 
         record also consists of joint exhibits 1-10.  The undersigned 
 
         takes judicial notice of the arbitration decision which was filed 
 
         by Deputy Industrial Commissioner Walter R. McManus, Jr., on June 
 
         17, 1987.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on May 18, 1988, the issues presented by the parties are 
 
         as follows:
 
         
 
              1)  Whether the two previous myocardial infarctions which 
 
         were found to arise out of and in the course of employment caused 
 
         the death of decedent on January 30, 1987;
 
         
 
              2)  Whether JoAnn Seibert is entitled to death benefits for 
 
         the duration of her life or until remarriage; and,
 
         
 
              3)   Whether JoAnn Seibert is entitled to burial benefits 
 
         under section 85.28.
 
         
 
                                 FACTS PRESENTED
 
         
 
              The following is a summary of the pertinent evidence.  
 
         Decedent was 55 years old at the time of his first two heart 
 
         attacks, one of which occurred on August 15, 1983 and the other 
 
         one which took place on June 6, 1984.  Decedent worked for 
 
         defendant from November 2, 1948 until decedent's second heart 
 
         attack.  Decedent voluntarily retired in November of 1984.
 
         
 
              As a result of the petitions for arbitration which were 
 
         filed subsequent to the dates of the two heart attacks, Deputy 
 
         McManus determined decedent had a 25 percent industrial 
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE   2
 
         
 
         
 
         disability.  All benefits were paid by defendant.
 
         
 
              Decedent and claimant were married on December 24, 1964.  
 
         They continued to live as man and wife until the day of 
 
         decedent's death.  Claimant has not remarried.
 
         
 
              Decedent's third heart attack occurred on January 29, 1987. 
 
          Claimant testified that on that day the following events 
 
         transpired:
 
         
 
              A.  That would be the 29th of January, '87.
 
         
 
              Q.  What did Delbert do that morning?
 
         
 
              A.  Well, he got up and set around the house, didn't 
 
              feel good.  He wanted to go fishing and he couldn't go 
 
              out fishing because he was afraid to climb that bank.  
 
              And he set there at the table the biggest share of the 
 
              morning.
 
         
 
              Q.  Okay.  The medical records show that there was an 
 
              argument or some sort of dispute with Delbert that 
 
              morning.  Would you tell the Industrial Commissioner 
 
              what that was about?
 
         
 
              A.  Just a silly little thing.  He was sitting there at 
 
              the table and I grabbed a gallon of milk out of the 
 
              refrigerator and it slipped.  And he told me I didn't 
 
              need to throw it at him.  And I told him I hadn't 
 
              throwed it at him and it slipped.  And he got up and 
 
              went outside.
 
         
 
              Q.  How was he feeling at that time?
 
         
 
              A.  He still wasn't feeling good.
 
         
 
              Q.  What did Delbert do then?
 
         
 
              A.  At the time I didn't know, but later I found out he 
 
              had driven to Eldon and picked up the mail and driven 
 
              back and left it on the table.
 
         
 
              Q.  And what happened when he got back?
 
         
 
              A.  He came in and laid down on the bed and said told 
 
              me to call the doctor.
 
         
 
              Q.  And which doctor did you call?
 
         
 
              A.  Dr. Reiter.
 
         
 
              Q.  Did Dr. Reiter give you any instructions on what 
 
              you should do?
 
         
 
              A.  Yes.  He said get him to the hospital as quickly as 
 
              possible.  Call an ambulance.  And I told him that I 
 
              could get him to the hospital before I could give the 
 
              ambulance directions to get.there.
 
         
 
              Q.  Did you drive Delbert to the hospital then?
 
         
 
              A.  Yes, I did.
 
         
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE   3
 
         
 
         
 
              Q.  And when did Delbert die?
 
         
 
              A.  January 30.
 
         
 
              Q.  That would be the next morning?
 
         
 
              A.  Yes.
 
         
 
         (Transcript, page 14, line 1 to page 15, line 15)
 
         
 
              Under cross-examination claimant continued as follows:
 
         
 
              Q.  Now on the day that Delbert had the heart attack 
 
              there apparently must have been some dispute at home of 
 
              some kind?
 
         
 
              A.  Not really.
 
         
 
              Q.  When the milk -- did the milk spill or something 
 
              when it went on the table?
 
         
 
              A.  No.  It just hit the table kind of hard.  He was 
 
              just totally out of sorts and owley.  He didn't feel 
 
              good.
 
         
 
              Q.  So he got mad and walked out and then went some 
 
              place, is that kind of what happened?
 
         
 
              A.  He wasn't even mad.  He just got up and left.  If 
 
              he'd have been mad there would have been a fight.
 
         
 
              Q.  He did go somewhere apparently and you didn't know 
 
              he had left?
 
         
 
              A.  Right.  He went to the post office box.
 
         
 
              Q.  How far was that?
 
         
 
              A.  Four and a half miles.
 
         
 
              Q.  And when he came home was he complaining of some 
 
              chest pain?
 
         
 
              A.  Never said a word.  He walked right straight in and 
 
              sat down on the bed and told me to call the doctor.
 
         
 
              Q.  So when he came back that's the first time you were 
 
              aware he was having some type of problem?
 
         
 
              A.  Right.  That's the first time I realized he was 
 
              really as sick as he was, yes.
 
         
 
         (Tr., p. 23, 1. 6 to p. 24, 1. 5)
 
         
 
              As previously mentioned, decedent passed away in the 
 
         hospital on the following day.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that decedent's death arose out of and in the course of 
 
         decedent's employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE   4
 
         
 
         
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant also has the burden of proving by a 
 
         preponderance of the evidence that any injury, including death, 
 
         is causally related to the employment of decedent.  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).  According to the 
 
         case of Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980), "A cause is proximate if it is a substantial factor in 
 
         bringing about the result."  It does not need to be the only 
 
         cause.  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756,    
 
         (1956). If he claimant had a preexisting condition or disability 
 
         that is aggravated, accelerated, worsened or lighted up so that 
 
         it results in disability, claimant is entitled to recover.  Nicks 
 
         v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812,      
 
         (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Zieqler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591,     
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE   5
 
         
 
         
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has not met her burden of proving that the 
 
         decedent, her spouse, suffered a work related injury which caused 
 
         decedent's death.  The evidence is clear the decedent sustained 
 
         two anterior myocardial infarctions which were found to be work 
 
         related.  The second of the two myocardial infarctions occurred 
 
         on June 6, 1984.  In November of 1984, decedent voluntarily 
 
         retired.  He was permanently removed from the work setting where 
 
         there were both physical and emotional stresses.
 
         
 
              Subsequent to his retirement, but prior to his death, 
 
         decedent had continual health problems.  He was insulin dependent 
 
         and had encountered insulin attacks.  He had brittle diabetes.  
 
         The decedent had smoked until 1983, a period of approximately 34 
 
         years.  Decedent chewed snuff.  He drank three to four beers per 
 
         day.  There was a history of family health problems, including 
 
         heart problems.
 
         
 
              Medical records for the date of decedent's death indicate:
 
         
 
              Patient was a 58 year old white man admitted 1-29-87 
 
              with acute myocardial infarction inferior location and 
 
              expired at 5:20 a.m. on 1-30-87.  Patient is a 58 year 
 
              old male who has had diabetes mellitus, known coronary 
 
              artery disease, esophageal reflux, who was hospitalized 
 
              in Dec. last year after episode of hypoglycemia, 
 
              syncope.  He has a history of two previous myocardial 
 
              infarctions, the last in 1983. [sic]  He has had angina 
 
              pectoris since that time.  The day of admission after 
 
              breakfast he had a disagreement with his wife, drove to 
 
              Eldon from his home and on the way back home began to 
 
              have rather severe substernal chest pain radiating into 
 
              the neck and left shoulder.  He became diaphoretic and 
 
              nauseated, was brought to the emergency room by his 
 
              wife.  He had transient complete heart block, syncope 
 
              and was admitted directly to CCU.  On physical exam his 
 
              BP was 98/70, pulse was irregular and approxiamtely 
 
              [sic] 70/minute, skin cool and moist....
 
         
 
              Peter J. Reiter, M.D., decedent's physician, opined in his 
 
         deposition on August 11, 1988, that the cause of decedent's death 
 
         was as follows:
 
         
 
              ...the patient's cause of death was cardiopulmonary 
 
              arrest with electrical mechanical disassociation due to 
 
              his passive loss of heart muscle.  Doctor, would you 
 
              explain that sentence to the Industrial Commissioner, 
 
              please?
 
         
 
              A.  Mr. Seibert had had a heart attack in 1983 which, 
 
              based on the evidence from his electrocardiogram was in 
 
              the front wall of the anterior wall of the heart.  He 
 
              was admitted to the hospital in January of 1987 with 
 
              his fatal heart attack.  The abnormalities on the 
 
              electrocardiogram indicated that he had injury to the 
 
              inferior or bottom wall of the heart indicating that an 
 
              area that was not previously damaged in the heart 
 
              attack was now involved by a new heart attack.  In the 
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE   6
 
         
 
         
 
              course of his hospitalization, his brief 
 
              hospitalization, he developed steadily worsening pump 
 
              function of his heart known as congestive heart failure 
 
              and finally died, his heart stopped essentially.  
 
              Electromechanical disassociation is a technical term 
 
              meaning the electrical activity discontinued but no 
 
              pump function ensured.  In other words there was no 
 
              mechanical activity of the heart in response to the 
 
              normal electrical impulses generated by the heart 
 
              pacemaker system.
 
         
 
              Q.  Okay.  First of all to clarify for the record, I 
 
              believe Mr. Seibert also had a second heart attack in 
 
              June of 1984?
 
         
 
              A.  Okay.
 
         
 
              Q.  But going back to the electromechanical 
 
              disassociation, what was that to do, what caused that?
 
         
 
              A.  A massive heart attack.
 
         
 
              Q.  Okay.
 
         
 
              A.  Massive.  There are basically three major causes of 
 
              electrical mechanical disassociation excluding severe 
 
              mineral imbalances, and those are a massive pulmonary 
 
              embolism which is a blood clot that goes to the lung 
 
     
 
         
 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE   7
 
         
 
         
 
              and blocks the heart which happens only in the setting 
 
              of a heart attack based on trauma, perpetrating trauma 
 
              or a massive heart damage.  In the setting of a 
 
              myocardial infarction it's my clinical judgment that 
 
              his death and the electromechanical disassociation was 
 
              a direct result of the heart attack itself, of the 
 
              myocardial infarction and merely a terminal event.
 
         
 
         (Joint Exhibit 3, p. 3, 1. 5 to p. 4, 1. 20)
 
         
 
              Dr. Reiter further stated under cross-examination from 
 
         defendant's attorney:
 
         
 
              Q.  Okay.  The electrical dysfunction that occurred in 
 
              Mr. Seibert could have been caused by the massive heart 
 
              attack that he had, is that correct? ...
 
         
 
                 ....
 
         
 
              Q.  I'm referring the Doctor to the third heart 
 
              attack.
 
         
 
              A.  Can I answer the question?
 
         
 
              Q.  If within the realm of reasonable medical 
 
              certainty.
 
         
 
              A.  Only do I believe that it could have been a result 
 
              of the heart attack I believe that it was, I believe 
 
              that's the only reasonable medical reason in my opinion 
 
              is the only reasonable judgment about the cause of the 
 
              electrical mechanical disassociation in that patient, 
 
              that is that I believe that is an acute myocardial 
 
              infarction superimposed upon his present existing heart 
 
              disease was the approximate and only cause of the 
 
              electromechanical disassociation therefore the cause of 
 
              death.
 
         
 
              Q.  And that is the heart attack that occurred in 
 
              January of 1986? [sic]
 
         
 
              A.  Yes.
 
         
 
              Dr. Reiter continued under cross-examination:
 
         
 
              Q.  Doctor, one other question to just reverse what Mr. 
 
              Meyer has also said, you cannot also say that the two 
 
              prior heart attacks that he had caused his death in 
 
              this particular case?
 
         
 
              A.  No, no.
 
         
 
              Q.  Again that's within the realm of medical 
 
              certainty?
 
         
 
              A.  Right.
 
         
 
                                              MR. MONTGOMERY:  Fine.
 
         
 
         (Jt. Ex. 3, p. 12, 11. 18-24)
 
         
 
              Donald E. Wolters, M.D., testified by deposition.  He 
 
         testified he had treated the decedent for the two myocardial 
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE   8
 
         
 
         
 
         infarctions that occurred in August of 1983 and in June of 1984.  
 
         Dr. Wolters also testified he treated decedent for angina by 
 
         prescribing cardizem, a drug which assists in increasing the 
 
         blood supply to the heart. (Jt. Ex. 2, p. 5, 11. 5-19)
 
         
 
              According to Dr. Wolters, decedent had been shoveling snow 
 
         in November of 1985.  Dr. Wolters treated decedent for angina on 
 
         November 26, 1985.  That was the last time Dr. Wolters had 
 
         treated decedent.
 
         
 
              Dr. Wolters, in his deposition of November 3, 1986, agreed 
 
         with the following quotation from The Heart, J. Willis, Sixth 
 
         Edition 1986 at 1571:
 
         
 
              "The shorter the time interval between the exposure of 
 
              an individual to a potentially noxious stimulus and the 
 
              appearance of clinical or pathologic evidence of new 
 
              heart disease or dysfunction, the more likely there is 
 
              a causal relationship between the two.  Conversely, the 
 
              farther apart in time, the less likely is a cause and 
 
              effect relation."
 
         
 
         (Ex. B, p. 5, 11. 1-9)
 
         
 
              Paul From, M.D., an internist, testified by deposition for 
 
         defendant.  Dr. From was retained by defendant to evaluate 
 
         decedent's condition.  Much weight was accorded to Dr. From's 
 
         testimony.  He opined during direct examination that the prior 
 
         two myocardial infarctions were not substantial factors in 
 
         decedent's death.  Dr. From also stated decedents 1987 heart 
 
         attack was unrelated to the previous infarctions.  Dr. From 
 
         testified:
 
         
 
              A.  My opinion is that this present heart attack in 
 
              1987 was not related to the previous infarctions which 
 
              were work related.
 
         
 
              Q.  Doctor, I want you to again assume those same facts 
 
              and again within the realm of reasonable medical 
 
              certainty, do you have an opinion as to whether the 
 
              first two heart attacks of Mr. Seibert were a 
 
              substantial factor in his death?
 
         
 
              A.  I have an opinion, yes.
 
         
 
              Q.  What is that opinion?
 
         
 
              A.  I don't believe that they were a substantial factor 
 
              in his death.  The first two attacks were clearly 
 
              healed, and this was another new infarction due to 
 
              coronary disease, not due to muscle disease.
 
         
 
         (Jt. Ex. 4, p. 26, 11. 2-15)
 
         
 
              Dr. From also stated the two previous heart attacks did not 
 
         render the decedent less able to survive after the third heart 
 
         attack.  Dr. From opined:
 
         
 
              Q.  Did the two previous heart attacks make it less 
 
              likely that Mr. Seibert would survive?
 
         
 
              A.  I don't think so because he died of an electrical 
 
              mechanical dissociation of an electrical problem.  That 
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE   9
 
         
 
         
 
              can happen on the first heart attack as well as the 
 
              second or the third.  He didn't die of.congested heart 
 
              failure.
 
         
 
                 The therapy was not that he was having -- wasn't 
 
              really directed towards heart failure.  Although, you 
 
              know when the heart begins to die it's going to fail.  
 
              It's going to do all these things at once but the 
 
              thrust when he walked into that emergency room with 
 
              pain was that he had a complete heart block.  That 
 
              cleared up.
 
         
 
                 He got a sinus rhythm.  He got atrial fibrillations.  
 
              He got more trouble.  He developed electrical 
 
              mechanical dissociation, and he died.  That could have 
 
              happened to him the first time that he had a heart 
 
              attack, second or the third, and so the fact that he 
 
              had two previous ones made no difference in my thinking 
 
              to how -- to what happened to him in this third one.  I 
 
              mean, it was not related in that he didn't have 
 
              evidence of poor heart muscle, poor heart muscle 
 
              function.
 
         
 
         (Jt. Ex. 4, p. 23, 1. 6 to p. 24, 1. 4)
 
         
 
              Finally, Dr. From also recognized The Heart as an 
 
         authoritative tome on medicine, especially in the area of 
 
         causation. (Ex. E, p. 54, 11. 11-17)
 
         
 
              Dr. From disputed a causal connection between the decedent's 
 
         death and any work related injury.  Dr. From did not believe the 
 
         two prior infarctions were substantial factors in contributing to 
 
         decedent's death.  The first two infarctions were in the anterior 
 
         portion of the heart.  The final infarction was in the inferior 
 
         portion.  Decedent's general health was poor.  He was 
 
         deconditioned.  Decedent's diabetes, according to medical 
 
         testimony, was a factor which contributed substantially to 
 
         decedent's overall deterioration.
 
         
 
              Dr. Reiter, decedent's treating physician, could not state 
 
         that the two prior work related myocardial infarctions caused the 
 
         death of decedent.  Dr. Wolters, another treating physician, 
 
         agreed with the quotation from the book entitled, The Heart.  He 
 
         acknowledged the longer the interval between the stress and the 
 
         infarction, the less the likelihood of a causal connection 
 
         between the two.
 
         
 
              In the case at bar, it had been over two and one-half years 
 
         since claimant had been exposed to the physical and emotional 
 
         stresses in the workplace.  It is difficult to imagine how 
 
         incidents which occurred so many months prior could have caused 
 
         or contributed to decedent's final heart attack.
 
         
 
              There is evidence to indicate decedent had succumbed to a 
 
         serious insulin attack several weeks prior to the date of the 
 
         third heart attack.  The insulin attack necessitated 
 
         hospitalization for decedent who lapsed into a coma.  There is 
 
         also evidence to establish that on the day of the third heart 
 
         attack, decedent and claimant had been arguing about spilled 
 
         milk.  According to claimant, decedent was in an agitated state 
 
         and left his premises after the argument.  It appears the 
 
         argument may have precipitated the final heart attack.
 
         
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE  10
 
         
 
         
 
              Claimant has not established that decedent's death was 
 
         causally connected to his employment or proximately caused by his 
 
         employment.  Medical evidence does not support such a causal 
 
         connection.  There have been many intervening factors between the 
 
         date of the second myocardial infarction and the date of 
 
         decedent's death.  Even common sense dictates that defendant is 
 
         not responsible for every incident its employee with a heart 
 
         condition might encounter.  Defendant is only responsible for 
 
         those incidents which are work related.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously cited, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  The decedent was employed by the defendant on 
 
         August 15, 1983 and June 6, 1984 and that he suffered myocardial 
 
         infarctions on each of those dates.
 
         
 
              FINDING 2.  Decedent retired in November of 1984.
 
         
 
              FINDING 3.  Decedent died on January 30, 1987 as a result of 
 
         a third heart attack.
 
         
 
              FINDING 4.  Decedent's final heart attack on January 30, 
 
         1987 was not induced or caused by any work related activity or 
 
         incident of the defendant.
 
         
 
              FINDING 5.  JoAnn Seibert, the claimant, was married to 
 
         Delbert Seibert at the time of his death.
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that the death of decedent was proximately caused by an 
 
         injury which arose out of and in the course of employment or that 
 
         his death was proximately caused by his employment.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the claimant.
 
         
 
              Signed and filed this 16th day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Richard Meyer
 
         Attorney at Law
 

 
         
 
         
 
         
 
         SEIBERT V. JOHN MORRELL & COMPANY
 
         PAGE  11
 
         
 
         
 
         104 North 7th St.
 
         Estherville, Iowa 51334
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Bldg.
 
         P. O. Box 7038
 
         Spencer, Iowa 51301
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1108.10; 1805
 
                                              Filed December 16, 1988
 
                                              MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANN SEIBERT, surviving spouse
 
         of DELBERT SEIBERT, SR.,
 
                                               File Nos. 790700 & 790701
 
              Claimant,
 
                                                    R E V I E W -
 
         vs.
 
                                                 R E O P E N I N G
 
         JOHN MORRELL & COMPANY,
 
                                                  D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.10; 1805
 
         
 
              Claimant's spouse, the decedent, died approximately two
 
         and one half years after two work related myocardial infarctions 
 
         which were determined by a deputy industrial commissioner to have 
 
         been causally related to claimant's disability.  It was held 
 
         claimant had failed to establish there was a causal connection 
 
         between decedents death and a work related injury.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANN SEIBERT, surviving
 
         spouse of DELBERT
 
         SEIBERT, SR..,                           File Nos. 790700/790701
 
          
 
               Claimant,                             A P P E A L
 
          
 
          VS.                                       D E C I S I 0 N
 
          
 
          JOHN MORRELL & COMPANY,
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
          
 
          
 
          
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an review-reopening decision denying 
 
         death benefits and burial expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits I through 10.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the issue on appeal is whether JoAnn Seibert 
 
         is entitled to death and burial benefits when Delbert's two 
 
         previous job-related heart attacks were a proximate cause of his 
 
         death.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision filed December 16, 1988 
 
         adequately and accurately reflects the pertinent evidence and it 
 
         will not be reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the review-reopening decision is adopted.
 
         
 
         
 
         
 
         SEIBERT v. JOHN MORRELL & COMPANY
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The decedent was employed by the defendant on August 15, 
 
         1983 and June 6, 1984 and that he suffered myocardial infarctions 
 
         on each of those dates.
 
         
 
              2.  Decedent retired in November of 1984.
 
         
 
              3.  Decedent died on January 30, 1987 as a result of a third
 
         heart attack.
 
         
 
              4.  Decedent's final heart attack on January 30, 1987 was 
 
         not induced or caused by any work related activity or incident of 
 
         the defendant.
 
         
 
              5.  Decedent's death resulted from a heart attack decedent 
 
         had on January 30, 1987.
 
         
 
              6.  JoAnn Seibert, the claimant, was married to Delbert 
 
         Seibert at the time of his death.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that the death of decedent was proximately caused by an 
 
         injury which arose out of and in the course of employment or that 
 
         his death was proximately caused by his employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That the costs of this action are assessed against the 
 
         claimant.
 
         
 
              Signed and filed this 28th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         SEIBERT v. JOHN MORRELL & COMPANY
 
         Page 3.
 
         
 
         
 
         Copies To:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Richard Meyer
 
         Attorney at Law
 
         104 North 7th St.
 
         Estherville, Iowa 51334
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         316 llth St., SW Plaza
 
         P.O. Box 7038
 
         Spencer, Iowa 51301
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANN SEIBERT, surviving
 
         spouse of DELBERT
 
         SEIBERT, SR.,                       File Nos. 790700/790701
 
         
 
              Claimant,                             A P P E A L
 
         
 
         VS.                                      D E C I S I 0 N
 
         
 
         JOHN MORRELL & COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an review-reopening decision denying 
 
         death benefits and burial expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits I through 10.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the issue on appeal is whether JoAnn Seibert 
 
         is entitled to death and burial benefits when Delbert's two 
 
         previous job-related heart attacks were a proximate cause of his 
 
         death.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision filed December 16, 1988 
 
         adequately and accurately reflects the pertinent evidence and it 
 
         will not be reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the review-reopening decision is adopted.
 
         
 
         
 
         
 
 
 
                                                
 
                                                         
 
         SEIBERT v. JOHN MORRELL & COMPANY
 
         Page 2
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The decedent was employed by the defendant on August 15, 
 
         1983 and June 6, 1984 and that he suffered myocardial infarctions 
 
         on each of those dates.
 
         
 
              2.  Decedent retired in November of 1984.
 
         
 
              3.  Decedent died on January 30, 1987 as a result of a third 
 
         heart attack.
 
         
 
              4.  Decedent's final heart attack on January 30, 1987 was 
 
         not induced or caused by any work related activity or incident of 
 
         the defendant.
 
         
 
              5.  Decedent's death resulted from a heart attack decedent 
 
         had on January 30, 1987.
 
         
 
              6.  JoAnn Seibert, the claimant, was married to Delbert 
 
         Seibert at the time of his death.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that the death of decedent was proximately caused by an 
 
         injury which arose out of and in the course of employment or that 
 
         his death was proximately caused by his employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That the costs of this action are assessed against the 
 
         claimant.
 
         
 
              Signed and filed this 28th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E. LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         SEIBERT v. JOHN MORRELL & COMPANY
 
         Page 3.
 
         
 
         
 
                                                
 
                                                         
 
         Copies To:
 
         
 
         Mr. Richard Meyer
 
         Attorney at Law
 
         104 North 7th St.
 
         Estherville, Iowa 51334
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         316 llth St., SW Plaza
 
         P.O. Box 7038
 
         Spencer, Iowa 51301
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       1108.10 - 1805 - 2202
 
                                       Filed November 28, 1989
 
                                       DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANN SEIBERT, surviving
 
          spouse of DELBERT
 
          SEIBERT, SR.,                     File Nos. 790700/790701
 
          
 
               Claimant,                         A P P E A L
 
          
 
          Vs.                                  D E C I S I 0 N
 
          
 
          JOHN MORRELL & COMPANY,
 
          
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
          
 
          
 
          
 
         1108.10 - 1805 - 2202
 
         
 
         
 
              Claimant's spouse, the decedent, died approximately two and 
 
         one-half years after two work-related myocardial infarctions.  
 
         Decedent died more than two years after he had retired.  Claimant 
 
         failed to establish there was a causal connection between 
 
         decedent's death and a work-related injury.  Deputy affirmed on 
 
         appeal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
                                   
 
 
 
                                                  1108.10 - 1805 - 2202
 
                                                  Filed November 28, 1989
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOANN SEIBERT, surviving
 
         spouse of DELBERT
 
         SEIBERT, SR.,                          File Nos. 790700/790701
 
         
 
              Claimant,                               A P P E A L
 
         
 
         vs.                                        D E C I S I 0 N
 
         
 
         JOHN MORRELL & COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.10 - 1805 - 2202
 
         
 
         
 
              Claimant's spouse, the decedent, died approximately two and 
 
         one-half years after two work-related myocardial infarctions.  
 
         Decedent died more than two years after he had retired.  Claimant 
 
         failed to establish there was a causal connection between 
 
         decedent's death and a work-related injury.  Deputy affirmed on 
 
         appeal.