BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WALLACE HUBBARD,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      FILE NO. 790707
 
         
 
         IOWA STATE PENITENTIARY,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                       D E C I S I O N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration commenced under section 
 
         85.59 of the Code by Wallace Hubbard, an inmate, against Iowa 
 
         State Penitentiary, and the State of Iowa.  The case was heard at 
 
         Burlington, Iowa on November 6, 1986, and was fully submitted 
 
         upon conclusion of the hearing.  The record consists of testimony 
 
         from Wallace Hubbard and Donald J. Lynch.  The record also 
 
         includes claimant's exhibits 1, 2, 3 and 4.  Final ruling upon 
 
         defendants' exhibit A was deferred until the issuance of this 
 
         decision.
 
         
 
              Exhibit A is the written report of an investigation of the 
 
         incident upon which Hubbard's claim is based.  It contains a 
 
         summary of statements from witnesses and also transcripts of tape 
 
         recorded statements from witnesses.  The report was prepared as 
 
         part of the regularly conducted and regularly recorded activities 
 
         of the Penitentiary.  It would ordinarily be excluded from 
 
         evidence by the operation of Iowa Rule of Evidence 803(8)(B)(ii).  
 
         The exhibit contains statements from persons who were not subject 
 
         to cross-examination.  If cross-examination has not and cannot be 
 
         conducted, it is difficult to make a finding that a full and true 
 
         disclosure of the facts had been made without cross-examination.
 
         
 
              Chapter 86 of the Code gives the industrial commissioner 
 
         and the deputies appointed by the commissioner the 
 
         responsibility and authority to administer the workers' 
 
         compensation laws of this state.  Section 86.8(1) of the Code 
 
         specifically gives the commissioner the duty to establish and 
 

 
         
 
         
 
         
 
         HUBBARD V. IOWA STATE PENITENTIARY
 
         Page   2
 
         
 
         
 
         enforce all necessary
 
         
 
         rules for carrying out the purposes of Chapters 85, 85A and 87 
 
         of the Code.  Division of Industrial Services Rules 343-4.20 
 
         through 4.23 deal with the prehearing and assignment process.  
 
         Rule 343-4.22 specifically provides for the entry of an order 
 
         which controls the subsequent course of action of the case.  
 
         Paragraph 6 of the hearing assignment order clearly states, in 
 
         part, O...all other written evidence shall not be admitted as 
 
         exhibits at the hearing unless they have been timely served 
 
         upon an opposing party as ordered herein.O  The assignment 
 
         order required service to be made within 10 days following the 
 
         date of the order.  This was clearly not accomplished.  Timely 
 
         objection was made.  That objection is sustained.  Defendants" 
 
         counsel's brief urges that the service was late by only a few 
 
         days and that the tremendous case load of the attorney handling 
 
         the case and the clerical staff in the Attorney General's 
 
         office prevented immediate attention to the matter.  If 
 
         inadequate staffing levels exist, the results of such must 
 
         impact upon the party responsible for determining those 
 
         staffing levels.  If timely service of the exhibit had been 
 
         made, claimant could have sought a continuance of the case or 
 
         to depose the witnesses whose statements are contained in the 
 
         exhibit.  When served only seven days prior to trial, 
 
         claimant's counsel was fully within his rights to decide to 
 
         object to the evidence rather than to make a belated attempt at 
 
         a last minute continuance or a last minute deposition of the 
 
         witnesses.  He clearly had no obligation to inform defense 
 
         counsel that he intended to make the objection if the exhibit 
 
         was, in fact, offered at hearing.  As previously stated, the 
 
         objection to exhibit A is sustained and exhibit A is part of 
 
         the record of this case as an offer of proof only.  Its 
 
         contents will not be considered when deciding this case.
 

 
         
 
         
 
         
 
         HUBBARD V. IOWA STATE PENITENTIARY
 
         Page   3
 
         
 
         
 
         
 
                                    ISSUES
 
         
 
              The primary issue in this case is whether compensation is 
 
         disallowed due to the injury being the result of a willful act of 
 
         a third party directed against Hubbard for reasons personal to 
 
         Hubbard as provided by Code section 85.16(3).  The parties 
 
         stipulated that Hubbard is an inmate and that benefits, if 
 
         payable, arise under Code section 85.59.  It was further 
 
         stipulated that claimant's disability is a 13 percent loss of use 
 
         of the left am which entitles him to 32.5 weeks of compensation 
 
         for permanent partial disability in the event the injury is found 
 
         to be compensable.  Stipulations appear in the record to cover 
 
         all other material issues.
 
                                     ANALYSIS
 
         
 
              From the stipulations and record made, it is clear that 
 
         Wallace Hubbard was an inmate at the Iowa State Penitentiary on 
 
         August 14, 1984.  He was living at a prison farm at the time.  
 
         His injury occurred on one of the prison farms where he had been 
 
         working with a crew cutting weeds.
 
         
 
              Hubbard testified that toward the end of the work day he and 
 
         another inmate identified as "Thomas" began to engage in 
 
         horseplay.  Hubbard testified that he informed Thomas that he was 
 
         about to be paroled and that Thomas then kicked Hubbard in the 
 
         back.  Hubbard stated that the two scuffled but no one was hurt.  
 
         Hubbard testified that they resumed working and that 
 
         approximately one-half hour later when he was returning his tools 
 
         to the storage shed, Thomas came out from behind a tractor and 
 
         swung a blade striking his left arm.  Claimant was taken to the 
 
         Iowa State Penitentiary Hospital and later transferred to the 
 
         University of Iowa Hospitals and Clinics in Iowa City.  The cut 
 
         on claimant's arm included an injury to the ulnar nerve which has 
 
         not fully recovered and has left claimant with weakness, 
 
         decreased sensation and loss of grip strength.  The impairment 
 
         was rated by James V. Nepola, M.D., as 13 percent of the upper 
 
         extremity (Exhibit 4).
 
         
 
              Claimant testified that he thought Thomas was mad at him 
 
         because he was going to be paroled.  He further stated that after 
 
         he and Thomas had wrestled things got out of hand but that he 
 
         thought it was then over.  Hubbard denied beating up Thomas or 
 
         hitting him on that day when the incident occurred.
 
         
 
              Section 85.59 provides workers' compensation benefits to an 
 
         inmate "...while that person works in connection with the 
 
         maintenance of the institution or in an industry maintained 
 
         therein..."  Work on the prison farm was clearly an activity 
 
         which would bring claimant within the coverage afforded by the 
 
         workers' compensation statutes.  The defense provided by Code 
 
         section 85.16(3) is an affirmative defense which must be 
 
         established by the state.  Reddick v. Grand Union Tea Co., 230 
 
         Iowa 108, 115, 296 N.W..800, 803 (1941).
 
         
 
              The normal rule regarding the burden of proving that an 
 
         injury arose out of and in the course of employment should apply 
 
         to a case of this nature with the employment being considered as 
 
         the activities described in section 85.59.  "An injury occurs in 
 

 
         
 
         
 
         
 
         HUBBARD V. IOWA STATE PENITENTIARY
 
         Page   4
 
         
 
         
 
         the course of the employment when it is within the period of 
 
         employment at a place the employee may reasonably be, and while 
 
         he is doing his work or something incidental to it."  Cedar 
 
         Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), 
 
         McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971), 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d l28 
 
         (1967).
 
         
 
              Rest breaks are a common part of employment.  So long as the 
 
         individual remains on the employer's premises, he is generally 
 
         considered to be within the course of his employment during a 
 
         rest period.  Watters v. Backman Steel Works, Thirty-third 
 
         Bienniel Report, Iowa Industrial Commissioner 60 (App. Decn. 
 
         1977).
 
         
 
         
 
         
 
              An employee who, of his own volition, initiates or engages 
 
         in horseplay or practical joking maybe outside the course of his 
 
         employment while engaging in such horseplay.  Ford v. Barcus, 261 
 
         Iowa 616, 155 N.W.2d 507 (1968).  Lawyer & Higgs, Iowa Workers' 
 
         Compensation -- Law and Practice, section 6-8.
 
         
 
              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. MaryOs 
 
         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 "arising out of" refer to causal connection.  The 
 
         injury must be a natural incident of the work.  It . must be a 
 
         rational consequence of a hazard connected with the work.  Cedar 
 
         Rapids Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979).
 
         
 
              It can be urged under the positional risk doctrine that 
 
         every injury that occurs while a worker is in the course of his 
 
         employment also arises out of the employment.  I Larson 
 
         Workmen's Compensation, section 10.00 at et.seq.  A school 
 
         district employee who was shot by a mentally inbalanced fellow 
 
         employee has been awarded benefits.  Cedar Rapids Community Sch. 
 
         v. Cady, 278 N.W.2d 298 (Iowa 1979).  The basis of the court's 
 
         ruling was that since the employment placed Cady in a position of 
 
         contact with the mentally deranged co-employee, the injury arose 
 
         out of the employment.  It could be urged that the fact that the 
 
         work assignment on the prison farm placed Hubbard in contact with 
 
         Thomas makes any injury inflicted by Thomas upon Hubbard an 
 
         injury that arose out of the employment.
 
         
 
              The issue of dealing with whether or not assaults arise out 
 
         of and in the course of employment is covered in I Larson 
 
         Workmen's Compensation, section 11.00 at et.seq.  The rule 
 
         states:
 
         
 
              Assaults arise out of the employment either if the risk of 
 
              assault is increased because of the nature or setting of the 
 
              work, or if the reason for the assault was a quarrel having 
 
              its origin in the work.  A few jurisdictions deny 
 
              compensation if the claimant himself was the aggressor; most 
 

 
         
 
         
 
         
 
         HUBBARD V. IOWA STATE PENITENTIARY
 
         Page   5
 
         
 
         
 
              reject this defense if the employment in fact caused the 
 
              fight to break out.  An increasing number accept the idea 
 
              that the strain of enforced close contact may in itself 
 
              provide the necessary work connection.  Assaults for private 
 
              reasons do not arise out of the employment unless, by 
 
              facilitating an assault which would not otherwise be made, 
 
              the employment becomes a contributing factor.  Assaults by 
 
              lunatics, drunks, and children have generally been found to 
 
              arise out of the employment, and the same has been held by 
 
              some courts in the case of unexplained or mistaken-identity 
 
              assaults, although there is authority to the contrary.
 
         
 
              The injury in this case did not arise from an attempted 
 
         robbery, an argument over the work in which Hubbard and Thomas 
 
         had been engaged or from an irrational act committed by a 
 
         mentally impaired individual.  Thomas and Hubbard were in as 
 
         close contact with each other in their residential area as they 
 
         were when in the work area.
 
         
 
              According to claimant's testimony, he had been engaging in 
 
         horseplay with Thomas and the horseplay had gotten gut of hand.  
 
         Later, Thomas struck him with a blade causing the injury.  The 
 
         only motive for the attack that is suggested in the record is 
 
         that Thomas was disgruntled with the fact that Hubbard was going 
 
         to be paroled.  Such circumstances have no relationship 
 
         whatsoever to the work of cutting weeds on the prison farm.  They 
 
         are clearly a matter personal to the individuals concerned.  
 
         Other inmates were present but it is only Thomas and Hubbard who 
 
         were involved in the altercation and events which led up to the 
 
         injury.  The evidence fails to show that the injury to claimant's 
 
         arm arose out of the employment.  It is likely that the horseplay 
 
         in which he had engaged precipitated Thomas' subsequent attack.  
 
         It is further found that the attack was a willful act committed 
 
         by Thomas due to a reason personal to Thomas and Hubbard upon 
 
         Thomas being informed that Hubbard was going to be paroled.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On August 14, 1984, Marcus Thomas struck Wallace Hubbard 
 
         on the left arm with a blade that produced a severe laceration 
 
         and resulted in the permanent disability that currently exists in 
 
         Hubbard's arm.
 
         
 
              2.  Shortly prior to the time of the attack, Wallace Hubbard 
 
         and Marcus Thomas had engaged in horseplay that included 
 
         wrestling or scuffling on the ground.  Hubbard had voluntarily 
 
         participated in the horseplay.
 
         
 
              3.  The scuffling was prompted, at least in part, by Hubbard 
 
         informing Thomas that he was going to be paroled.
 
         
 
              4.  The attack that Thomas made upon Hubbard was made for 
 
         reasons personal to Thomas and Hubbard and had no connection, 
 
         whatsoever, with the work that either of them performed on the 
 
         prison farm.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Wallace Hubbard has failed to prove by a preponderance 
 

 
         
 
         
 
         
 
         HUBBARD V. IOWA STATE PENITENTIARY
 
         Page   6
 
         
 
         
 
         of the evidence that the injury to his left arm arose out of a 
 
         hazard connected with the work he performed in connection with 
 
         the maintenance of the prison farm.  The injury is therefore not 
 
         compensable under section 85.59 of the Code.
 
         
 
              2.  It has been proven by a preponderance of the evidence 
 
         that the attack by Marcus Thomas upon Wallace Hubbard was a 
 
         willful act directed against Hubbard for reasons personal to 
 
         Hubbard and Thomas.  No compensation is therefore allowed in 
 
         accordance with section 85.16(3) of the Code.
 
         
 
              3.  The positional risk doctrine does not make all injuries 
 
         suffered by inmates compensable under Chapter 85 of the Code.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that costs of this proceeding are 
 
         assessed against claimant.
 
         
 
         
 
              Signed and filed this 26th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632
 
         
 
         Mr. James R. Redmond
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1105; 1106; 1402.30
 
                                                  1403.30; 1603
 
                                                  Filed January 16, 1987
 
                                                  MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WALLACE HUBBARD,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                       FILE NO. 790707
 
         IOWA STATE PENITENTIARY,
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
                                                       D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1105; 1106; 1402.30; 1403.30; 1603
 
         
 
              Claimant was an employee of the ISP who was struck on the 
 
         arm by another inmate resulting in a permanent ulnar nerve injury 
 
         and permanent partial disability of the arm.  The injury resulted 
 
         from an intentional attack by another inmate.  The events leading 
 
         up to the attack included some horseplay, wrestling and scuffling 
 
         between the two inmates which got out of hand.  It also appears 
 
         to have been prompted by claimant telling the other inmate that 
 
         he was going to be paroled.  The only reason for the attack 
 
         suggested by the claimant was that the other inmate was mad 
 
         because claimant was going to be paroled.  It was found that the 
 
         attack arose out of the horseplay which had gotten out of hand 
 
         and in which claimant had been a willing participate.  It was 
 
         further found that the attack resulted from the other inmate 
 
         having some emotion toward claimant as a result of the fact that 
 
         claimant was telling him that he was going to be paroled soon.  
 
         It was held that claimant failed to prove that the injury arose 
 
         out of and in the course of employment under section 85.59.  It 
 
         was further held that the evidence showed that the attack was 
 
         made for reasons personal to the two individuals, without any 
 
         relationship to the work, and that compensation was barred by 
 
         section 85.16(3).
 
 
 
         
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN TATZER,
 
         
 
              Claimant,                                File No. 790730
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         COOPER TIRE & RUBBER COMPANY,                 D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         JAN 04 1990
 
         CONTINENTAL INSURANCE COMPANY,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by John Tatzer 
 
         against his former employer, Cooper Tire & Rubber Company, and 
 
         its insurance carrier, Continental Insurance Company.  The case 
 
         was heard and fully submitted at Davenport, Iowa on the 29th day 
 
         of March, 1989.  The record in this proceeding consists of 
 
         testimony from John Tatzer, Joseph Zizzi, Janice Tatzer, Thomas 
 
         Griffith, and Kathy Wagner.  The record also contains jointly 
 
         offered exhibits 1 through 26.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that a heart attack which he suffered is an 
 
         injury which arose out of and in the course of his employment and 
 
         seeks compensation for permanent total disability.  Claimant 
 
         asserts the odd-lot doctrine to assist in establishing his 
 
         disability.  The issues to be determined are whether the heart 
 
         attack is an injury which arose out of and in the course of 
 
         employment; determination of the extent or degree of permanent 
 
         disability that was proximately caused by the alleged injury.  It 
 
         was stipulated that in the event of an award, claimant's 
 
         entitlement to healing period benefits would run from April 20, 
 
         1983 through January 8, 1984, except for the period of August 1, 
 
         1983 through September 23, 1983 when.claimant actually worked.  
 
         It was stipulated.that any permanent partial disability should be 
 
         payable commencing January 8, 1984.  It was further stipulated 
 
         that in computing the rate of weekly compensation, claimant was 
 
         paid $32,194.29 per year and that he was married and entitled to 
 
         four exemptions.  It was further stipulated that in the event of 
 
         an award, defendants were entitled to credit under Code section 
 
         85.38(2) in the Amount of $4,510.03.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              John Tatzer is a 59-year-old married man who lives at St. 
 
         Petersburg, Florida with his wife Janice.  They have two adult 
 
         sons who are both disabled.
 
         
 
              Tatzer is a 1949 high school graduate.  Thereafter, he 
 
         attended one year of business training in Pittsburgh, 
 
         Pennsylvania.  Over the years, he has attended various seminars 
 
         dealing with the tire business.
 
         
 
              Claimant commenced employment after high school as a 
 
         corre-spondence clerk for Lee Tire & Rubber Company in 
 
         Pittsburgh, Pennsylvania.  He became office manager and then was 
 
         inducted into the Army.  When claimant returned from military 
 
         service, he was placed into a sales position where he sold tires, 
 
         batteries and accessories in the North Pittsburgh area.  Claimant 
 
         stated that with Lee, each salesman had a particular territory 
 
         and that other salesmen were prohibited from working outside 
 
         their respective territories.  Claimant stated that Goodyear 
 
         purchased Lee in approximately 1966.  Claimant remained with 
 
         Goodyear as a regional manager for one year.  Claimant stated 
 
         that while he was with Goodyear, salesmen's boundaries and 
 
         territories were strictly observed.
 
         
 
              In 1966, claimant commenced employment with Pennsylvania 
 
         Tire Company as a territory manager.  He was subsequently 
 
         promoted to regional manager of the Midwest.  Claimant stated 
 
         that the product developed a bad reputation, that the company 
 
         fell on hard times, and eventually went bankrupt.  Claimant 
 
         stated that with Pennsylvania Tire Company sales territory 
 
         boundaries were honored by the sales staff.
 
         
 
              In 1970, claimant became a district manager or salesman for 
 
         McCreary Tire Company.  He remained with McCreary until 1979 when 
 
         the company fell on hard times.  Claimant stated that with 
 
         McCreary, sales territory boundaries were observed.
 
         
 
              In 1979, claimant was contacted by Tom Griffith and obtained 
 
         a sales position with the Falls Division of Cooper Tire & Rubber 
 
         Company.  Claimant described Cooper Tire & Rubber Company as 
 
         containing several divisions including Cooper Tire Division which 
 
         sold Cooper brand tires, Falls Division which sold Falls brand 
 
         tires, the oil company division which made Atlas tires for 
 
         Standard Oil Company, and the Private Brands Division which 
 
         contracted to make tires for some other business.  Some of the 
 
         other private brands of tires which were manufactured by Cooper 
 
         included Hercules and El Dorado.  Claimant stated that the Falls 
 
         Division operation consisted primarily of selling large 
 
         quantities of tires to large retailers or wholesalers while the 
 
         Cooper Division dealt with smaller retailers.  Claimant stated 
 
         that it was his understanding that salesmen from the Falls 
 
         Division were not to attempt to sell Falls products to tire 
 
         dealers who were carrying the Cooper line and that Cooper 
 
         salesmen were not to attempt to sell Cooper tires to dealers who 
 
         were handling the Falls line of tires.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that his territory included North Dakota, 
 
         South Dakota, Minnesota, Wisconsin, part of Iowa, and part of 
 
         Illinois.  He stated that when he obtained the territory, sales 
 
         were very low.  He stated that he had only six accounts, two of 
 
         which were good accounts.  He stated that one of the good 
 
         accounts was in Eden Prairie, Minnesota and the other in 
 
         Mitchell, South Dakota.  Claimant stated that he concentrated on 
 
         developing accounts in the Chicago, Illinois area and was 
 
         somewhat successful. Claimant stated that he developed Tri-State 
 
         Tire and Cassidy Tire in Chicago, Roth-Keller in Fargo, North 
 
         Dakota, Suburban Tire in Lombard, Illinois, and several others.  
 
         Claimant testified that initially he was successful in increasing 
 
         sales.  He stated that he felt good economically and otherwise.  
 
         Claimant's performance appraisals found in exhibit 21 confirm 
 
         that claimant was a hard, dedicated worker and that he was 
 
         successful in increasing the amount of sales in his territory.  
 
         The supervisor's comments for the performance appraisal which 
 
         appears to be dated August 27, 1982 state:  "John has performed 
 
         well under adverse conditions in his area.  He seems more 
 
         comfortable with the job."  In that same appraisal, claimant's 
 
         weakness were noted.  One of the comments states, " . . . 
 
         shouldn't let things bother him as much, especially things he has 
 
         no control over."
 
         
 
              The performance appraisal for the period running from 
 
         September 22, 1982 to September, 1983 covers the period of time 
 
         when claimant had the heart attack and was off work recuperating. 
 
         The appraisal is remarkable in that on the fourth page claimant 
 
         received a low rating in the composure and stability section of 
 
         the job skills division.  On the following page, claimant's 
 
         comments state, "Distributors and dealers in my major areas had 
 
         their worse first quarter in history, due to many factors, and 
 
         reversal has been slow."  One of the last pages in exhibit 21 is 
 
         a letter dated February 3, 1984 from Tom Griffith to John Tatzer.  
 
         It shows that 1983 sales were much lower than 1982 sales had 
 
         been.  From the letter it is not possible to determine whether 
 
         the years noted are calendar years or fiscal years.
 
         
 
              Claimant testified that in late 1982, due to the recession 
 
         and other economic hardships which were affecting the Midwest, 
 
         sales in his area became harder to make.  He stated that a lot of 
 
         independent dealers went out of business which caused claimant's 
 
         dealers to lose business and in turn reduced their purchases.
 
         
 
              Claimant stated that the independent group which sold 
 
         Hercules tires, which were also built by Cooper, had undercut the 
 
         Falls prices and had taken away business and accounts from the 
 
         retail dealers who the Falls distributors supplied.  Claimant 
 
         stated that Cooper tire salesmen were attempting to sell Cooper 
 
         tires to dealers who carried the Falls line, despite the supposed 
 
         prohibition against Cooper salesmen taking business away from 
 
         Falls salesmen.  Claimant testified that his affected 
 
         distributors were irate.  Claimant stated that he sought 
 
         assistance with the problem from Tom Griffith, but that no actual 
 
         assistance was rendered to resolve the problem.  Claimant stated 
 
         that there were misshipments.  Claimant stated that in general 
 
         his distributors were losing business which in turn would cause 
 
         him to lose income. Claimant stated that the situation was 
 
         stressful.  Claimant stated that only two weeks prior to the time 
 
         of his heart attack he had been in discussion with the owner of 
 
         Modern Tire, one of his major distributors, regarding the loss of 
 
         business to the Hercules line of tires and also the competition 
 
         from Cooper salesmen.  Claimant stated that prior to 1982, he had 
 
         a cordial working relationship with his distributors, but that 
 
         the competition from Cooper salesmen and other 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Cooper-manufactured tires became a source of constant phoning and 
 
         complaints.  Claimant stated that it was stressful to work for a 
 
         company that was cutting him out.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that on Tuesday, April 19, 1983, he left 
 
         his home at Clinton, Iowa at approximately 6:00 a.m., drove to 
 
         the Quad Cities Airport, and then flew to O'Hare.  Claimant 
 
         stated that during his one-hour layover, he phoned three of his 
 
         distributors and also phoned Kathy Wagner at the company office 
 
         about a problem with an order.  Claimant then flew on to Minot, 
 
         North Dakota.  Claimant stated that the customer who was to pick 
 
         him up was very late and that while waiting, he phoned his 
 
         distributors and Kathy Wagner regarding problems.  Claimant 
 
         stated that after working he returned to the Holiday Inn motel at 
 
         approximately 8:30 p.m., had supper, two martinis, returned to 
 
         his room, made notes of his activities of the day, and planned 
 
         the following day.  Claimant stated that he went to bed at 
 
         approximately 9:30, but awoke at approximately 5:00 a.m. feeling 
 
         like he was getting the flu.  Claimant stated that he went back 
 
         to bed and then woke up again at 7:00 or 8:00, without feeling 
 
         any better.  Claimant stated that he called the company office 
 
         and reported that he was not feeling well, but still planned to 
 
         make his 12:30 flight to Fargo to attempt to make amends with a 
 
         disgruntled distributor.
 
         
 
              Claimant stated that while lifting his suitcase, he 
 
         experienced a severe crushing sensation and pain in his chest. 
 
         Claimant estimated that the suitcase when fully loaded with 
 
         clothing and product manuals weighed in the range of 60-70 
 
         pounds. Claimant stated that the incident with the suitcase 
 
         happened at about 9:30 or 10:00 and that following it, he really 
 
         felt bad.  He stated that he took off his shirt, went into the 
 
         bathroom, and vomited.  Eventually he was taken to the local 
 
         hospital by motel personnel.
 
         
 
              Claimant was hospitalized in Minot under the primary care of 
 
         Henry Meijer, M.D., and Michael Domanski, M.D., consultant.  The 
 
         final diagnosis when claimant was discharged on May 4, 1983, 
 
         sixteen days later, was that claimant had acute inferior lateral 
 
         myocardial infarction, congestive heart failure, supraventricular 
 
         dysrhythmia, ventricular ectopy, pericarditis plural pericarditis 
 
         and coronary artery disease, diffuse.  Claimant was discharged in 
 
         order to return to the care of his primary physician, James A. 
 
         Lehman, M.D., of Clinton, Iowa (exhibit 5, pages 26).
 
         
 
              Claimant was admitted to St. Joseph Mercy Hospital,in 
 
         Clinton, Iowa on May 9, 1983 where he remained until May 13, 
 
         1983. The final diagnosis from that period of hospitalization 
 
         lists coronary artery heart disease recent circumferential apical 
 
         wall myocardial infarction, April 20, 1983, unstable angina with 
 
         pericarditis stable now, chronic obstructive pulmonary disease 
 
         due to heavy smoking, alcohol abuse, hiatus hernia by history, 
 
         history of surgery on broken hand many years ago, hypertension, 
 
         secondary to his acute myocardial infarction (exhibit 1, pages 54 
 
         and 55).
 
         
 
              On June 15, 1983, claimant underwent heart catheterization 
 
         at St. Lukes Hospital in Davenport, Iowa.  He was found to have a 
 
         total occlusion of the right coronary artery, near total 
 
         occlusion of the proximal left coronary artery and moderately 
 
         severe occlusion of the left circumflex artery.  The disease was 
 
         so severe that his treating cardiologist, Saadi Albaghdadi, M.D., 
 
         recommended against bypass surgery (exhibit 6, pages 2, and 6-8). 
 
         On July 23, 1983 claimant was admitted to St. Joseph Mercy 
 
         Hospital in Clinton, Iowa for feelings of discomfort.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he returned to work in August and 
 
         September of 1983, but that while he was in Montgomery, Illinois, 
 
         he got sick and was taken to Mercy Hospital in Aurora, Illinois. 
 
         Claimant was then transported to Swedish American Hospital in 
 
         Rockford, Illinois where he underwent triple coronary bypass 
 
         surgery (exhibit 7, pages 20-22, 44-46, 51-53 and 73-75).
 
         
 
              Claimant stated that following the surgery, he remained off 
 
         work until January 8, 1984, although he did attend a company 
 
         meeting in Florida.  Claimant stated that when he returned to 
 
         work, restrictions were placed upon him by his physicians.  These 
 
         included that he avoid extreme cold, heavy lifting and stress.  
 
         He was given prescription medication and was also advised to 
 
         control his diet.
 
         
 
              Claimant's employment was terminated on April 30, 1984.  He 
 
         stated that he was told he was fired because he was unable to do 
 
         the job.  Claimant stated that he had been able to see some of 
 
         his accounts and contacted others by phone.  He stated that while 
 
         he was off work, his accounts had deteriorated and that he had 
 
         been unable to regain the lost sales.
 
         
 
              Claimant worked for Dunlop Tire & Rubber Company as a 
 
         territory sales representative from October, 1984 until February 
 
         of 1985.  Claimant stated that he got sick again, however, and 
 
         was fired.
 
         
 
              Claimant testified that he then moved to St. Petersburg, 
 
         Florida in conformance with the recommendation of his physician 
 
         to avoid extreme cold  He stated that he worked approximately one 
 
         month for a tire company in Florida, but was fired due to his 
 
         health problems.
 
         
 
              Claimant testified that he is currently physically unable to 
 
         do much.  He stated that he engages in no sports or exertion.  He 
 
         stated that he can walk some, but that his ankles swell if he is 
 
         on his feet a lot.  Claimant listed a number of prescription 
 
         medications which he currently takes.  Claimant stated that he is 
 
         presently unable to perform physical labor, or to handle the 
 
         stress of a sales job.  He feels that his memory is impaired. 
 
         Claimant stated that he feels he is unable to perform an office 
 
         job.  Claimant testified that Donald Pell, M.D., has been his 
 
         treating physician for his heart problems since he has lived in 
 
         Florida.
 
         
 
              Since moving to Florida, claimant has been hospitalized for 
 
         chest pain on more than one occasion (exhibits 8 and 15).
 
         
 
              Claimant stated that he has never been treated or seen by 
 
         Ernest 0. Theilen, M.D., or Paul From, M.D.
 
         
 
              Claimant's history of chest pain and chest complaints dates 
 
         back to September 8, 1979 when he was admitted to St. Joseph 
 
         Mercy Hospital in Clinton, Iowa.  The diagnosis on discharge was 
 
         chest pain of undetermined etiology (exhibit 1, page 8).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was seen at Jane Lamb Memorial Hospital in Clinton, 
 
         Iowa in 1980, 1981 and 1982 for chest pain.  A note from 1980 
 
         which appears at the bottom of page 4 of exhibit 11 states in 
 
         part: "There is really nothing that suggestive of coronary artery 
 
         disease. . . . I'm fairly convinced . . . that this is of 
 
         gastrointestinal origin.  He had been given antacids and 
 
         nitroglycerin for his symptoms."  The final diagnosis from an 
 
         admission of August,18, 1981 included gastritis, acute and 
 
         chronic anxiety and musculoskeletal chest pain.  The records of 
 
         that admission make reference to claimant having been evaluated 
 
         for heart problems and having a positive stress test (exhibit 11, 
 
         pages 1 and 2).  At the bottom of page 7 of exhibit 11 the 
 
         following statement appears:  "I tried to assure the patient 
 
         again that this is not a heart problem causing his chest pains."  
 
         A note of February 20, 1982 however notes that claimant has 
 
         organic heart disease, severe two-vessel coronary artery disease, 
 
         angina pectoris and anxiety neurosis (exhibit 11, page 9).  Near 
 
         the top of page 6 of exhibit 11, reference is made to claimant 
 
         having been under a lot of business pressure recently.  The date 
 
         of that entry is unclear, but it is sometime during calendar year 
 
         1980.
 
         
 
              Claimant was hospitalized in Pittsburgh, Pennsylvania on 
 
         August 15, 1982.  The discharge notes indicate that there was a 
 
         probability that claimant had significant coronary artery 
 
         disease, but that he had not had a myocardial infarction (exhibit 
 
         3, pages 4-6).
 
         
 
              In September of 1982, claimant underwent a coronary 
 
         angiogram at the University of Iowa Hospitals in Iowa City.  He 
 
         was diagnosed as having severe two-vessel coronary artery disease 
 
         with complete occlusion of the proximal left anterior descending 
 
         artery and with 90 percent occlusion of the large dominant right 
 
         coronary artery (exhibit 4, pages 46-49).
 
         
 
              Claimant stated that neither his mother, father nor sisters 
 
         have had any heart attacks or known heart conditions.  Claimant 
 
         stated that he has been a smoker for several years and that his 
 
         drinking has been moderate, except for festive occasions.  
 
         Claimant stated that prior to the time he worked for Cooper, his 
 
         smoking habit had been intermittent, but that when with Cooper, 
 
         he started smoking cigarettes in the range of one to one and 
 
         one-half packs per day.  Claimant stated that the only real 
 
         stress in his life is that which came from his job.  He stated 
 
         that the disease which disables his two adult sons is not really 
 
         a stress for him because his wife handles most of the problems.  
 
         He stated that he is concerned about them, but that they have the 
 
         best medical care which is available and that they have regard 
 
         for him.  Claimant stated that as early as September of 1982 he 
 
         was aware that he had a heart condition.  He stated that he knew 
 
         that he had to be with Cooper Tire for five years in order to be 
 
         fully vested in the company pension plan.  He stated that at his 
 
         age he felt that the Cooper job would be the last chance for him 
 
         to obtain a regular pension.  Claimant stated that he worked 
 
         longer hours in trying to regain lost sales.  He stated that 
 
         demands were placed on him by Tom Griffith to increase sales.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that the tire business is very competitive 
 
         and that problems with orders and misshipments occur throughout 
 
         the industry, but that the frequency of problems with Cooper was 
 
         greater than average.  Claimant stated that the problems which 
 
         had existed with the general competition in the tire business 
 
         when he had been employed prior to his employment with Cooper and 
 
         even the failing of some of the businesses was not particularly 
 
         stressful for him.  He stated that he simply moved on to another 
 
         job. Claimant stated that he felt that problems which were out of 
 
         his hands were very stressful because he could not do anything 
 
         about them.
 
         
 
              Claimant acknowledged that in January and February of 1983, 
 
         he received an award from the company for making the highest 
 
         percentage of his sales quota.
 
         
 
              Joseph Zizzi, a Chicago tire dealer, confirmed that Cooper 
 
         tire salesmen tried to sell Cooper tires to dealers who handled 
 
         Falls tires during the timespan of 1979 through 1983.  He also 
 
         confirmed that it was uncommon for one division of a tire company 
 
         to try to take business away from another division of that same 
 
         company.
 
         
 
              Janice Tatzer, claimant's spouse of more than 30 years, 
 
         stated that prior to claimant's April, 1983 heart attack he was 
 
         unrestricted and could do anything that anyone else could do.  
 
         She stated that he had a very good memory.  Janice stated that 
 
         claimant now tires easily at times and is forgetful.  She 
 
         attributes his memory loss to a lack of oxygen to his brain 
 
         resulting from heart damage.  She stated that he engages in 
 
         little physical activity as he is unable to be on his feet very 
 
         much.  She stated that she and their sons do most of the chores 
 
         around their home and that claimant reads a lot.  Janice stated 
 
         that claimant was never overweight and had never demonstrated a 
 
         high cholesterol level.
 
         
 
              Janice stated that claimant's bypass surgery did not restore 
 
         him to the state of health which had existed prior to the heart 
 
         attack.
 
         
 
              Janice stated that claimant normally smoked less than one 
 
         pack of cigarettes per day and seldom smoked at home, except 
 
         after supper.  She stated that he drank little.  She considered 
 
         their marriage to be good.
 
         
 
              Janice related that claimant often talked about his accounts 
 
         and always wanted to be the best.  She stated that he was highly 
 
         motivated.  Janice felt that the stress from claimant's work 
 
         started to get bad in the year he had the heart attack.  She 
 
         stated that his quota had been increased and that he felt he was 
 
         not getting cooperation from the company in servicing his 
 
         accounts.  She stated that in the last months before his heart 
 
         attack, he was more driven and appeared to worry more.  She 
 
         stated that she noticed the strain on him.  She stated that 
 
         during the last two months before the heart attack, he had 
 
         complained more of having an upset stomach and that he was more 
 
         restless at night. Janice stated that while at home on the 
 
         weekend prior to the heart attack, claimant had not gone 
 
         anywhere.  She stated that he did paperwork and prepared for the 
 
         work of the coming week.  She stated that he was not feeling well 
 
         and did not look good when he left home Monday.morning.  She had 
 
         attempted to convince him to stay at home, but he refused.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Janice stated that claimant liked tire sales, was very 
 
         competitive and enjoyed the competition.  She stated that prior 
 
         to the heart attack, however, claimant knew that he needed new 
 
         business, but was having trouble keeping his old accounts.  She 
 
         stated that a lot of the problems were beyond his control.
 
         
 
              Exhibit 26 was identified as a list prepared by claimant of 
 
         his activities and business problems during the period of 
 
         approximately two months prior to the heart attack.
 
         
 
              Thomas Griffith, the vice president of sales for Cooper Tire 
 
         & Rubber Company, was the national sales manager for its Falls 
 
         Division from 1979 until 1989.  Griffith was claimant's 
 
         supervisor.  Griffith stated that increasing quotas is standard 
 
         in any sales operation and that stress is the nature of the sales 
 
         game.  He stated that some people thrive on it, while others 
 
         leave.
 
         
 
              Griffith stated that approximately 50 percent of the Cooper 
 
         Tire & Rubber Company production is in its house brands of Cooper 
 
         and Falls where the company can control where tires are sold, but 
 
         that the other 50 percent of its production goes to private 
 
         brands which it contracts to build for others and that there is 
 
         no control over the distribution of those tires.  Griffith agreed 
 
         that Falls salesmen were not to call on Cooper accounts and that 
 
         Cooper salesmen were not to call on Falls dealers.  Griffith 
 
         reported that Cooper Tire & Rubber Company is a Fortune 500 
 
         company and is the fastest growing tire company in the industry. 
 
         He stated that it has the highest profit percentage of any 
 
         company in the tire industry.
 
         
 
              Griffith felt that the problems which claimant had related 
 
         were overstated.  He stated that claimant's production during the 
 
         last months of 1982 was considerably over quota.  He stated that 
 
         claimant's primary weakness as a salesman, however, was that he 
 
         worried too much about things that were beyond his control. 
 
         Griffith saw no increase in the common misshipment type of 
 
         problems in late 1982 or early 1983.
 
         
 
              Kathy Wagner expressed the opinion that the problems with 
 
         misshipments and similar events that affected claimant were not 
 
         unusual in either nature or frequency.
 
         
 
              Claimant has been seen, evaluated and treated by a number of 
 
         physicians.  Dr. Meijer, who practices internal medicine and was 
 
         claimant's primary treating physician at Minot, North Dakota, 
 
         declined to express an opinion regarding the cause for claimant's 
 
         heart attack (exhibit 10).
 
         
 
              Robert H. Harner, M.D., of Rockford Cardiology Associates, 
 
         Ltd., was one of claimant's treating physicians.  In a report 
 
         dated June 10, 1985, he stated:
 
         
 
              Enclosed are my office records and hospital notes of Mr. 
 
              John Tatzer.  The patient's documented history is as 
 
              recorded in his narrative.  He works long hours but if long 
 
              hours of work are due to one's own desire, there is no great 
 
              stress to it other than the physical stress.  However if one 
 
              is under stress including loss of job, loss of job security, 
 
              loss of identity and severe either real or perceived stress, 
 
              one might see increased smoking, increased coffee 
 
              consumption etc., etc., all of which would be detrimental to 
 
              one's health.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              He was under a great deal of stress in his working 
 
              environment.  He was a heavy smoker.  The combination of 
 
              stress plus smoking may increase platelet stickiness and 
 
              lead to an increased incidence of acute myocardial 
 
              infarction. Acute myocardial infarctions seem to occur more 
 
              on Mondays and Saturdays or when one is more relaxed.  Why 
 
              that is, no one really knows for sure.
 
         
 
              There is no doubt in my mind that a combination of his 
 
              lifestyle, work habits, smoking habits, cholesterol and 
 
              blood pressure helped lead to his acute myocardial 
 
              infarction.  One can always say, and that is his argument, 
 
              that they are related.  The other argument is, that it is a 
 
              natural process which occurs in a normal aging male 
 
              population and does not have anything to do with stress.  
 
              The stress would increase his hypertension.  The 
 
              hypertension and smoking would increase his atherosclerosis.  
 
              Long hours per se would not cause a myocardial infarction 
 
              but it certainly could aggravate the situation.  Aggravation 
 
              of the hypertension along with his other habits certainly 
 
              could accelerate his tendency toward acute myocardial 
 
              infarction.
 
         
 
         (Exhibit 12, page 1)
 
         
 
              James A. Lehman, M.D., who specializes in internal medicine 
 
         in Clinton, Iowa, was claimant's primary treating physician in 
 
         the Clinton area.  Dr. Lehman felt that claimant's angina attacks 
 
         were related to stress rather than exertion and reported that the 
 
         stress which claimant had related to him during the course of 
 
         treatment was job stress (exhibit 22, pages 10 and 11).  Dr. 
 
         Lehman indicated that sales can be a stressful occupation.  He 
 
         stated that claimant had mentioned stress dealing with his sons 
 
         on one or two occasions in addition to the job stress, but that 
 
         claimant had never mentioned marital stress (exhibit 22, pages 
 
         28-31).  Dr. Lehman described claimant as a "type A" personality 
 
         and that his reaction to stress exceeded that of most people 
 
         (exhibit 22, pages 8, 9 and 36).  Dr. Lehman stated that stress 
 
         was a significant factor in causing claimant's myocardial 
 
         infarction (exhibit 22, pages 18-23, 59-64).  He agreed, however, 
 
         that claimant was at high risk for having a myocardial infarction 
 
         at some point (exhibit 22, page 55).
 
         
 
              Dr. Albaghdadi characterized claimant as an overachiever and 
 
         worrier (exhibit 23, pages 5 and 6).  He stated that the 
 
         activities which claimant had engaged in as part of his 
 
         employment on the day preceding his heart attack were a possible 
 
         cause for angina and the myocardial infarction (exhibit 23, pages 
 
         13-22). Dr. Albaghdadi stated that stress can induce a myocardial 
 
         infarction in a patient who has angina (exhibit 14, page 1).  Dr. 
 
         Albaghdadi felt that claimant's work stress was a substantial 
 
         factor in producing the myocardial infarction and that the stress 
 
         of the day of the heart attack was simply the straw which broke 
 
         the camel's back (exhibit 23, pages 23 and 24, 30-32).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Albaghdadi rated claimant as having a 50 percent 
 
         permanent impairment, of which 30 percent was due to the heart 
 
         attack, while the balance was due to other causes (exhibit 14; 
 
         exhibit 23, page 36).
 
         
 
              Donald M. Pell, M.D., a specialist in internal medicine who 
 
         is currently claimant's treating physician, stated that 
 
         individuals of the so-called "type A" personality who are 
 
         successful seem to have no problems, but that those,who ar,e 
 
         unsuccessful have problems (exhibit 25, page 24).  Claimant was a 
 
         person who would not function well if he were not being 
 
         successful (exhibit 25, pages 46-48).  Dr. Pell stated that 
 
         stress is a factor in producing myocardial infarctions.  He felt 
 
         that stress had precipitated claimant's myocardial infarction 
 
         (exhibit 25, pages 14-19, 69 and 70).  Dr. Pell felt that 
 
         claimant had been under more stress than usual prior to the heart 
 
         attack and that having events occur which were beyond his control 
 
         was particularly stressful for him (exhibit 25, page 45; exhibit 
 
         15, page 14).
 
         
 
              Dr. Pell stated that at the present time claimant is unable 
 
         to do anything and is not employable (exhibit 25, pages 12-14; 
 
         exhibit 15, page 13).
 
         
 
              Dr. Pell also indicated that the medical history obtained 
 
         from the patient at the hospital emergency room cannot be relied 
 
         upon to be accurate (exhibit 25, pages 6 and 26).
 
         
 
              Paul From, M.D., who practices internal medicine in Des 
 
         Moines, Iowa, examined records dealing with claimant's heart 
 
         attack and coronary condition.  He felt that the stress which 
 
         claimant had been under in his work was not unusual and that 
 
         therefore there was no causal connection between the employment 
 
         and the heart attack (exhibit 16, page 7).
 
         
 
              Claimant's medical records were reviewed by Ernest O. 
 
         Theilen, M.D., a cardiologist who is a professor of internal 
 
         medicine at the University of Iowa and the director of the 
 
         coronary care unit for approximately seven years.  Dr. Theilen 
 
         expressed the opinion that claimant's myocardial infarction was 
 
         the natural progression of his coronary artery disease and that 
 
         stress was not a factor in producing the myocardial infarction.  
 
         He stated that when claimant awoke on the morning of April 20, 
 
         1983, he was already experiencing early symptoms of the 
 
         infarction (exhibit 24, pages 18-21; exhibit 17).  Dr. Theilen 
 
         agreed, however, that stress can induce a myocardial infarction, 
 
         although it must be acute stress (exhibit 24, page 36).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 20, 1983 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              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 v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The "arising out of" requirement is satisfied by showing a 
 
         causal relationship between the employment and the injury.  
 
         Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
         
 
              In this case, it is clear that John Tatzer had a previously 
 
         diseased heart and that he suffered a heart attack on April 20, 
 
         1983.  From the record, there appears to be little bona fide 
 
         dispute with the fact that claimant is now severely disabled as a 
 
         result of his cardiac condition.  The crucial issue in this case 
 
         is whether claimant's employment, in particular the stress of the 
 
         employment, was a proximate cause for producing the heart attack 
 
         which has now led to his state of total disability.  For a cause 
 
         to be proximate, it must be a substantial factor in producing the 
 
         result, but it need not be the only cause.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
         
 
              The legal standard for compensability of a heart attack 
 
         where the heart is previously weakened or diseased has been long 
 
         established.  Sondag v. Ferris Hardware, 220 N.W.2d 903 905 (Iowa 
 
         1974).  Compensability is allowed when medical testimony shows an 
 
         instance of unusually strenuous employment exertion or when the 
 
         employment contributes exertion that is greater than that of 
 
         nonemployment life.  The comparison is not with the particular 
 
         employee's usual exertion in his employment, but with the 
 
         exertions of normal nonemployment life of the employee or any 
 
         other person.
 
         
 
              The standard for comparison is not particularly definite. 
 
         There are those individuals who, in their nonemployment life, run 
 
         in marathons, rebuild their homes, mow lawns, shovel snow, play 
 
         tennis and engage in a number of forms of quite substantial 
 
         exertion.  On the other hand, there are those who live in 
 
         apartments or condominiums and do nothing more strenuous than 
 
         walk on what is essentially level ground between the front door 
 
         of their home and their vehicle, never carrying more than a few 
 
         pounds of weight at any time.  With regard to emotional stress, 
 
         there are some individuals who live a very complacent life off 
 
         the job.  They get along well with their spouse.and neighbors.  
 
         They are financially secure and even get along well.with their 
 
         in-laws. Other individuals live in a state of constant turmoil 
 
         with ongoing altercations with the neighbors, harassment from 
 
         bill collectors, and a great deal of domestic discord.  The 
 
         undersigned is of the opinion that normal nonemployment life 
 
         brings with it such levels of physical exertion as mowing one's 
 
         own yard, carrying groceries, shoveling snow, playing golf, and 
 
         performing other activities which provide a moderate level of 
 
         physical exertion, albeit exertion which is performed at a rate 
 
         dictated by the individual. Normal nonemployment life includes 
 
         disagreements with neighbors and family.  It includes dealing 
 
         with disagreeable individuals at inconvenient times.  It is 
 
         important to note that the level of stress or exertion which is 
 
         considered to be unusual is not the stress which is normal in the 
 
         tire sales industry.  It is the stress of normal nonemployment 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         life with which the comparison is made.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The medical opinions which are expressed in the record of 
 
         this case are quite illustrative of the divergence of opinion in 
 
         the medical community regarding the cause of heart attacks.  
 
         Sales is certainly a stressful occupation.  A successful salesman 
 
         is usually quite highly motivated and competitive.  Claimant 
 
         seems to fit that description quite well.  As indicated by Drs. 
 
         Pell and Harner, salesmen do not generally seem to be adversely 
 
         affected by the stress when they are successful.  It is when 
 
         things are not going well that stress seems to take its toll.
 
         
 
              The downturn in the Midwest economy which occurred in 
 
         approximately 1983 is well known.  It is well known that many 
 
         businesses, particularly farm-related businesses, closed at that 
 
         time.  Claimant testified to business closings, sales falling off 
 
         and similar events which were commonplace in the Midwest at that 
 
         point in time.  On the other hand, the record also reflects that 
 
         claimant was given awards for high productivity in January and 
 
         February of 1983.  The record reflects that claimant worked only 
 
         approximately six months during calendar year 1983.  His year end 
 
         results for sales were down 37.3% in 1983 from what he had 
 
         achieved in 1982.  From the record, it is not possible to 
 
         determine how much of the reduction was due to the sagging 
 
         economy rather than the fact that claimant was simply not 
 
         working.  The fact remains, however, that claimant did work in a 
 
         high stress occupation.  The physicians all seemed to agree, even 
 
         Drs. From and Theilen, that stress can produce a myocardial 
 
         infarction. Those who work in occupations which present a high 
 
         risk of physical injury are not denied compensation for those 
 
         injuries due to the fact that "it goes with the territory."  
 
         There is likewise no reason to deny workers' compensation for 
 
         stress-induced injuries where the individual has worked in an 
 
         occupation which is inherently stressful.
 
         
 
              It is therefore determined that the stress from John 
 
         Tatzer's employment as a tire salesman for Cooper Tire & Rubber 
 
         Company was a substantial factor in causing him to have a 
 
         myocardial infarction which he had on April 20, 1983 at Minot, 
 
         North Dakota. Lifting the suitcase only magnified the symptoms of 
 
         the already ongoing infarction.  It is likely that he would have 
 
         eventually experienced such an event at some point in time due to 
 
         his underlying coronary artery disease, but it is determined that 
 
         the stress from his employment caused it to occur at the time and 
 
         place that it actually occurred.  It is therefore determined that 
 
         the heart attack is an injury which arose out of and in the 
 
         course of employment.
 
         
 
              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 
 
         basis 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.  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, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant has made three attempts to resume gainful 
 
         employment since the heart attack.  All have been unsuccessful.  
 
         There is no indication in the record of this case that there is 
 
         any job in the competitive general employment market which he is 
 
         capable of performing due to his coronary condition.  It is clear 
 
         that he has been significantly impaired due to the heart attack 
 
         which occurred.   It is likewise probable, however, that the 
 
         preexisting blocked vessels had also provided substantial 
 
         impairment.  There is, however, no practical way from the record 
 
         which was made to apportion the disability.  It must all 
 
         therefore be assessed to the defendants.  Varied Enterprises, 
 
         Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  Even if there were 
 
         some sufficient evidence in the record to apportion out the 
 
         amount of disability which was preexisting, the fact remains that 
 
         claimant has been rendered totally disabled.  There is no 
 
         practical way that a deduction can be taken for preexisting 
 
         disability other than to impose a waiting period before 
 
         commencing payment of permanent total disability compensation.  
 
         To do so would violate the principles of the workers' 
 
         compensation system in that it would deny benefits at a time when 
 
         benefits are needed.  It is not possible to reconcile such an 
 
         occurrence with the often-stated beneficent purpose of the 
 
         workers' compensation act.
 
         
 
              According to the stipulation made by the parties, claimant's 
 
         annual salary was $32,194.29.  The gross weekly earnings are 
 
         therefore determined under Iowa Code section 85.36(5).  The 
 
         result is $619.12 per week.  Since claimant is married with four 
 
         exemptions, the rate of compensation from the 1982 benefit 
 
         booklet is $361.32.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              This claim is for physical injury resulting from emotional 
 
         or mental stress.  It is therefore appropriate to consider the 
 
         case as one where the theory of recovery is emotional trauma 
 
         resulting in physical injury.  It is found, nevertheless, that 
 
         the inherent nature of claimant's work as a salesman provided 
 
         stresses of much greater magnitude than the day-to-day mental 
 
         stresses and tension which are common to all employees.  The 
 
         injury is therefore determined to be compensable if the Wisconsin 
 
         standard which has been adopted by the commissioner is applied.  
 
         Desgranges v. Dep't of Human Servs., file number 760747 (App. 
 
         Decn., August 19, 1988); Swiss Colony v. Dep't of Industry, L & 
 
         H. R., 240 N.W.2d 128 (Wisc. 1976); School Dist. #1 v. Dep't of 
 
         Industry, L & H. R., 215 N.W.2d 373 (Wisc. 1974); Meyer v. 
 
         Nottger, 241 N.W.2d 911 (Iowa 1976).  The result is therefore the 
 
         same.  The heart attack is determined to be a compensable injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The stress which claimant experienced in his employment 
 
         as a result of a weak Midwestern economy, lagging sales, 
 
         misshipments, irate distributors and the resulting potential for 
 
         loss of income and loss of employment was a substantial factor in 
 
         producing the myocardial infarction which claimant suffered on 
 
         April 20, 1983.
 
         
 
              2.  The stresses which claimant had experienced during the 
 
         few months immediately preceding the heart attack were not 
 
         necessarily of substantially greater magnitude than the stresses 
 
         which were normal for the claimant's job, but they were of 
 
         greater magnitude than the stresses of normal nonemployment life 
 
         and were also of greater magnitude than the day-to-day mental 
 
         stresses and tensions which all employees must experience.
 
         
 
              3.  Prior to the time of the heart attack, claimant was 
 
         capable of performing adequately in a competitive employment 
 
         setting.  Since the heart attack, he has not been able to be 
 
         sufficiently productive to be employed in any type of occupation 
 
         for which he is reasonable suited through training or experience.
 
         
 
              4.  At the present time, claimant, as a result of his 
 
         coronary condition, is limited to an extremely sedentary, 
 
         nonstressful lifestyle.
 
         
 
              5.  Subsequent to April 20, 1983, claimant was gainfully 
 
         employed for approximately 7 5/7 weeks during August 1 through 
 
         September 23, 1983; from January 8, 1984 until April 30, 1984, a 
 
         span of 16 2/7 weeks; from October, 1984 through February, 1985, 
 
         a span of 21 4/7 weeks; and 4 weeks while in Florida ending 
 
         September 3, 1985 when he was admitted to St. Anthony's Hospital.
 
         
 
              6.  The opinions of claimant's treating physicians regarding 
 
         work stress being a contributing factor to the myocardial 
 
         infarction is accepted as correct.  They are more familiar with 
 
         claimant's case than the physicians who merely reviewed records.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  The heart attack which claimant suffered on April 20, 
 
         1983 is an injury which arose out of and in the course of his 
 
         employment with Cooper Tire & Rubber Company.
 
         
 
              3.  Claimant is permanently and totally disabled within the 
 
         meaning of Iowa Code section 85.34(3) and is entitled to receive 
 
         compensation for permanent total disability payable commencing 
 
         April 20, 1983 and continuing thereafter for so long as claimant 
 
         remains totally disabled, except for an interruption of 7 5/7 
 
         weeks commencing August 1, 1983 when the employer paid wages to 
 
         claimant.
 
         
 
              4.  Claimant's rate of compensation is $361.32.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation at the rate of three hundred sixty-one and 32/100 
 
         dollars ($361.32) per week payable commencing April 20, 1983 and 
 
         continuing thereafter for so long as claimant lives and remains 
 
         permanently and totally disabled.
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to credit 
 
         against the foregoing award in the amount of four thousand five 
 
         hundred ten and 30/100 dollars ($4,510.30) as stipulated. 
 
         Defendants are also entitled to credit for the time when claimant 
 
         was employed consisting of seven and five-sevenths (7 5/7) weeks 
 
         commencing August 1, 1983.
 
         
 
              IT IS FURTHER ORDERED that all past due accrued amounts be 
 
         paid in a lump sum together with interest at the rate of ten 
 
         percent (10%) per annum pursuant to Iowa Code section 85.30 
 
         computed from the date each payment came due to the date of 
 
         actual payment.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED 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 4th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Building
 
         Davenport, Iowa  52801
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa  52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1108-10, 1108.20, 1402.30 
 
                                            1704, 1804, 1806, 2202
 
                                            Filed January 4, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN TATZER,
 
         
 
              Claimant,
 
         
 
         vs.                                            File No. 790730
 
         
 
         COOPER TIRE & RUBBER COMPANY,               A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         CONTINENTAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.10, 1108.20, 1402.30, 1704, 1804, 1806, 2202
 
         
 
              Claimant, who had preexisting coronary artery disease, had a 
 
         heart attack while traveling for his employer.  Claimant worked 
 
         in an occupation which was by its nature quite emotionally 
 
         stressful. The amount of stress which immediately preceded the 
 
         heart attack was not clearly shown to be substantially greater 
 
         than that which was normal for the occupation.  It was held that 
 
         the level of stress was, however, greater than the stresses of 
 
         normal nonemployment life and also greater than the day-to-day 
 
         stresses and tensions which all employees must experience.  It 
 
         was held that the injury arose out of and in the course of 
 
         employment.
 
         
 
              Claimant awarded permanent total disability where it was not 
 
         possible to apportion the disability.  Employer was granted 
 
         credit for the weeks during which claimant had attempted to 
 
         resume working following the heart attack.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES A. THOMPSON,          :
 
                                          :
 
                 Claimant,                :       File No. 790945
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            EATON CORPORATION,            :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                 On November 14, 1988, Charles Thompson, (claimant) 
 
            filed a petition for arbitration as a result of an injury to 
 
            claimant's thumb occurring on March 15, 1985.  Eaton 
 
            Corporation (Eaton or defendant) was identified as employer 
 
            and is self insured.  On August 19, 1991 these matters came 
 
            on for hearing in Des Moines, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by his counsel Dennis 
 
            Hanssen of Des Moines, Iowa and Eaton by its counsel Alan 
 
            Bjork of Des Moines, Iowa.  
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant.  
 
            
 
                 2.  Joint exhibits 1-14.
 
            
 
                 3.  Claimant's exhibit A.
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 b.  The claimant sustained an injury on March 15, 1985, 
 
            which arose out of and in the course of employment.
 
            
 
                 c.  The alleged injury is a cause of temporary 
 
            disability.
 
            
 
                 d.  The alleged injury caused a permanent disability.
 
            
 
                 e.  All healing period benefits have been paid.
 
            
 
                 f.  The commencement date for any additional permanent 
 
            partial disability, is December 23, 1987.
 
            
 
                 g.  The rate of compensation, in the event of an award, 
 
            is $237.98 per week based on a gross weekly wage of $380.00. 
 
            Claimant is married and had no dependents at the time of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injury.  He is entitled to two exemptions.
 
            
 
                 h.  All medical benefits have been paid.
 
            
 
                 i.  Defendants claim a credit for all healing period 
 
            benefits paid and 57 weeks of permanent partial disability 
 
            benefits at the rate of $237.98 per week prior to hearing.
 
            
 
                                    ISSUE
 
 
 
                 The only issue for resolution is the extent of 
 
            claimant's permanent partial disability; is the disability 
 
            to the thumb or to the hand.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  At the time of the hearing, claimant was 61 years 
 
            old.  He was employed by Eaton as a mechanic.  Claimant 
 
            began working for Eaton in May of 1978.
 
            
 
                 2.  In 1970, claimant had a injury to his right thumb 
 
            while he was working on a farm.  As a result of that injury, 
 
            claimant's right thumb was amputated at the mid metacarpal 
 
            phalangeal joint.
 
            
 
                 3.  On March 15, 1985, claimant had an injury to his 
 
            left thumb when a transmission case fell on his thumb and 
 
            crushed it.  The transmission case struck claimant's thumb 
 
            ahead of the last joint.  Prior to this time, claimant had 
 
            had no problems with his left thumb or hand.  Because of the 
 
            injury to claimant's right thumb he had become left hand 
 
            dominant.
 
            
 
                 4.  As a result of that injury, claimant was treated in 
 
            Shenandoah and then his care was transferred to William W. 
 
            Smith, M.D., in Omaha.  Dr. Smith cast the hand but this 
 
            procedure did not heal the fracture in claimant's thumb.  
 
            Dr. Smith referred claimant on to Chester Q. Thompson, M.D.  
 
            
 
                 5.  Dr. Thompson had examined claimant on June 10, 
 
            1985.  He noted that as a result of the crush injury, 
 
            claimant had a comminuted fracture across the 
 
            interphalangeal joint resulting in a comminuted fracture.  
 
            By June, the joint had become fairly stiff and was not 
 
            useable.  At that point, claimant had very little use of his 
 
            hands because of the amputation on the right and the crush 
 
            injury on the left.  Dr. Thompson then referred claimant to 
 
            Mayo Clinic for the purpose of a toe to thumb transfer to 
 
            lengthen the right stump of his thumb so that the right hand 
 
            would be functional.
 
            
 
                 6.  Claimant was examined by George B. Irons, M.D., at 
 
            Mayo Clinic and various options were discussed.  Claimant 
 
            eventually chose to have his left thumb surgically corrected 
 
            with an osteotomy and pollicization of the right index 
 
            finger to claimant's thumb to create a thumb on his right 
 
            hand.  The surgery for the left thumb was accomplished on 
 
            August 14, 1985 and the surgery on the right hand was 
 
            performed on August 26, 1985.  Thereafter, claimant had a 
 
            course of physical therapy for both hands.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 7.  In November of 1985, claimant began to complain of 
 
            discomfort in his left thumb.  The pins that had been 
 
            inserted during the course of surgery in August were working 
 
            their way into the joint resulting in a very tender left 
 
            thumb.  Claimant was re-evaluated at Mayo Clinic on February 
 
            25, 1986.  The discomfort in his thumb was identified as 
 
            being consistent with a non-union of the fracture in his 
 
            thumb.  At that juncture, claimant had a second surgery on 
 
            his thumb with a bone graft from bone harvested from the 
 
            distal radius of the forearm.
 
            
 
                 8.  In April of 1986, claimant had an x-ray of his left 
 
            thumb and the interphalangeal fusion showed a favorable 
 
            healing of the fractured portion.  Claimant was given a 
 
            release to return to work. Dr. Irons did recommend that 
 
            claimant have a troublesome pin removed by a local doctor.  
 
            The pin was removed on May 12, 1986.
 
            
 
                 9.  On June 27, 1986, Dr. Thompson gave claimant a 
 
            disability evaluation for his right and left hands.  Dr. 
 
            Thompson indicated that claimant had a 95 percent loss of 
 
            the left thumb and a 38 percent impairment of the hand.  Dr. 
 
            Thompson noted that the left thumb interphalangeal joint had 
 
            a 45 percent impairment and the metacarpal phalangeal joint 
 
            had a 27 percent impairment and the permanent ulnar branch 
 
            of the digital nerve had numbness of 23 percent.  This 
 
            resulted in a 38 percent impairment rating to the hand.
 
            
 
                 10.  On August 13, 1986, claimant saw Thomas P. Ferlic, 
 
            M.D., for continuing pain complaints in his left thumb.  Dr. 
 
            Ferlic noted that claimant had painful motion in the 
 
            interphalangeal joint and that the metacarpal phalangeal 
 
            joint had only 20 degrees of motion.  He also noted that 
 
            claimant had very poor sensibility over the entire volar 
 
            aspect of the thumb.  He further noted that claimant had no 
 
            opposition power or power to bring in the thumb into the 
 
            fifth finger.  As a result of these observations and the 
 
            evaluation that Dr. Ferlic performed, claimant had a 
 
            combined disability of the whole hand of 35 percent.  Dr. 
 
            Ferlic went on to note that the x-rays showed a thumb with 
 
            an unfused joint.
 
            
 
                 11.  In October of 1986, claimant had a third surgery 
 
            on his left thumb.  A pin was removed, a new bone graft from 
 
            the bone bank was made and then new wires were put into 
 
            place to fuse the left thumb.  By January of 1987, Dr. 
 
            Ferlic had concluded that claimant had a solid fusion in his 
 
            thumb and that he appeared to be healing without difficulty.  
 
            However, when claimant returned for a follow-up check in 
 
            September of 1987, he complained of pain in his thumb.  Dr. 
 
            Ferlic again opined that there was probably a non-union in 
 
            the joint.  Apparently, this conclusion was borne out as Dr. 
 
            Ferlic had to do a fourth surgery to fuse the 
 
            interphalangeal joint.  On December 9, 1987, Dr. Ferlic gave 
 
            a rating to claimant's thumb.  Dr. Ferlic assigned a 
 
            functional impairment rating of 45 percent of the 
 
            interphalangeal joint because of the fusion, a 30 percent 
 
            functional impairment because of changes or limitations to 
 
            the metacarpal phalangeal joint and a disability of 20 
 
            percent because of the involvement of digital nerve as it 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            was on the ulnar aspect of the thumb.  Dr. Ferlic did not 
 
            convert this rating to the hand.  No other rating was 
 
            obtained from Dr. Ferlic.
 
            
 
                 12.  On January 26, 1988, Dr. Ferlic was asked to 
 
            clarify his rating.  He believed that claimant's injury 
 
            caused his ongoing problems with his left thumb.  He 
 
            indicated that claimant's current job duties were not 
 
            contributing or intensifying the problem with the left 
 
            thumb.  
 
            
 
                 13.  In 1989, Scott Neff, D.O., reviewed claimant's 
 
            left thumb history.  In a letter to claimant's counsel, Dr. 
 
            Neff indicated that claimant's thumb injury extended into 
 
            his hand based on the anatomy of the thumb and the source of 
 
            the hands musculature and power.  Dr. Neff believed that 
 
            claimant's impairment was not confined to the thumb but 
 
            extended to the left upper extremity.  He formed this 
 
            opinion on the anatomy of the thumb and forearm.  Dr. Neff 
 
            went on to note that the prehensile hand which allows 
 
            opposition of the thumb to grasp, grip, and pinch gives the 
 
            hand its unique capabilities.  He concluded that damage to 
 
            the thumb joint which prevents its use involves an 
 
            impairment to the hand.  Dr. Neff confirmed these findings 
 
            at the time of his deposition.
 
            
 
                 14.  On January 12, 1990, Thomas Bower, in conjunction 
 
            with Dr. Neff, gave a rating for claimant's left thumb 
 
            injury.  It was their opinion, that the rating should have 
 
            been to the hand.  Mr. Bower and Dr. Neff believed that the 
 
            rating should have been 45 percent to the hand for the left 
 
            thumb crush injury.  At the time of the rating Dr. Neff and 
 
            Tom Bower noted that claimant continued to have poor 
 
            sensibility over the entire volar aspect of the thumb on the 
 
            left.  Additionally, claimant had a decrease in motion of 
 
            the metacarpal phalangeal joint and painful motion at the 
 
            interphalangeal joint of the thumb.  Dr. Neff noted that 
 
            when the claimant lost the opposition of the thumb, he lost 
 
            the function of his hand.  Failure to have opposition of the 
 
            thumb interferes with the function of the hand which 
 
            prevents the claimant from grasping, pinching or putting his 
 
            hand around an object.
 
            
 
                 15.  Claimant indicated that without his thumb, he has 
 
            difficulty dressing himself, he cannot tie shoes, pull 
 
            zippers or fasten buttons.  Claimant cannot grasp with the 
 
            left hand, he cannot use scissors with his left hand and he 
 
            cannot put pressure on his thumb.  Claimant's thumb is 
 
            bothered by cold weather.  He is now limited to one machine 
 
            in the plant at Eaton and he indicates that he has no 
 
            feeling in parts of his thumb and he is unable to do fine 
 
            manipulations with his hand as a result of this injury 
 
            because he cannot grip any longer with his thumb.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant contends that the medical evidence supports 
 
            the conclusion that the crush injury to his left thumb has 
 
            gone beyond the thumb and has disabled his whole hand since 
 
            he has lost the ability to grasp and to use his thumb as an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            opposable thumb.  Claimant argues that the loss of function 
 
            in the greater scheduled member requires compensation of the 
 
            greater scheduled member.  Eaton argues that claimant's 
 
            disability is limited to the thumb and relies on Morrison v. 
 
            Wilson Foods, 1 Iowa Industrial Commissioner Report 244 
 
            (1980), to support its position.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 15, 
 
            1985 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 
 
            868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 607, 
 
            613-14 (Iowa 1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955).  A cause is 
 
            proximate if it is a substantial factor in bringing about 
 
            the result.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
            215 N.W.2d 296, 297 (Iowa 1974).  There only needs to be one 
 
            cause; it does not have to be the only cause to make the 
 
            claim compensable.  Blacksmith, 290 N.W.2d at 354.  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 
 
            (Iowa 1974).  Moreover, the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact.  
 
            Sondag, 220 N.W.2d at 907.  Finally, 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 material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory.  The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different, specific injuries.  Barton v. Nevada Poultry Co., 
 
            110 N.W.2d 660, 663 (Iowa 1961); Soukup v. Shores Co., 268 
 
            N.W. 598, 601 (Iowa 1936).  Where there is an injury to a 
 
            specific part of claimant's body, such loss shall be 
 
            compensable only to the extent provided by the statute.  
 
            Thus by legislative edict, where the result of an injury 
 
            causes the loss of a foot, or eye etc, such loss, together 
 
            with its ensuing natural results upon the body, is declared 
 
            to be a permanent partial disability and entitled only to 
 
            the prescribed compensation.  Barton, 110 N.W.2d at 663.  
 
            
 
                 However, an injury to a scheduled member may, because 
 
            of after effects (or compensatory change), result in 
 
            permanent impairment to a greater scheduled member.  Such 
 
            impairment may in turn form the basis for a higher rating.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Barton, 110 N.W.2d at 663-64 (Iowa 1961); Dailey v. Pooley 
 
            Lumber Co., 10 N.W.2d 569, 573 (Iowa 1943); See generally, 
 
            Soukup, 268 N.W. at 601.
 
            
 
                 If a claimant contends that the injury to the scheduled 
 
            member results in a loss to a greater member, the claimant 
 
            has the burden of proving that the injury results in an 
 
            ailment extending beyond the scheduled loss.  Kellogg v. 
 
            Shute and Lewis Coal Co., 130 N.W.2d 667, 669 (Iowa 1964).
 
            
 
                 In this instance, the medical evidence suggests that 
 
            claimant has a loss of motion and a sensory loss that is 
 
            limited to the thumb.  The fusion in claimant's thumb 
 
            prevents him from opposing his thumb.  There is no evidence 
 
            that the fusion has caused an ailment that extends to the 
 
            hand, however, and he has not shown by sufficient evidence 
 
            that an ailment does extend into the hand.  Kellogg v. Shute 
 
            & Lewis Coal Co., 130 N.W.2d 667, 669 (Iowa 1964); Gilbert 
 
            v. Second Injury Fund, File No. 826659, Slip Op. (Iowa Ind. 
 
            Comm'r Arb. September 29, 1989)(Final Agency Action);  See 
 
            also, Wilkins v. IBP, Inc. and Second Injury Fund, File Nos. 
 
            895553, 890606, 940622, 910549, 910550, 910551, Slip op. 11 
 
            (Iowa Ind. Comm'r Arb. August 15, 1991)(Final Agency 
 
            Action)(Gamekeepers thumb condition did not extend into 
 
            hand); Strohmeyer v. Dubuque Packing Co., III Iowa Indus. 
 
            Comm'r Rep. 244 (1982)(Thumb injury did not extend into the 
 
            hand).  
 
            
 
                 The reasoning in the Gilbert opinion is compelling and 
 
            is adopted here.  In Gilbert, Deputy Rasey noted that the 
 
            claimant has the burden of showing that the ailment 
 
            afflicting the lesser scheduled member must extend into the 
 
            greater scheduled member to find disability in that member.  
 
            There is a difference between the functional deficit caused 
 
            by a loss of a lesser scheduled member on the greater 
 
            scheduled member and an ailment extending into the greater 
 
            member, the requirement of Kellogg.  Deputy Rasey rejected 
 
            the functional analysis urged by the claimant in Gilbert.  
 
            Likewise, the functional analysis urged by claimant in this 
 
            instance is of little use in determining whether claimant's 
 
            injury extends into the hand.  
 
            
 
                 Support for this conclusion is grounded in the statute 
 
            itself.  The Legislature has chosen to treat the loss of the 
 
            thumb or the loss of the use of the thumb separately.  The 
 
            unique qualities of the thumb have been recognized by the 
 
            Legislature since more weeks of compensation are paid when 
 
            the thumb is injured.  If the Legislature had intended to 
 
            include the thumb in the hand, it could have listed only the 
 
            fingers and the hand.  As it is, the Legislature has elected 
 
            to treat the thumb separately.  If the functional analysis 
 
            urged by the claimant is adopted, the thumb would rarely be 
 
            compensated separately because of the interrelationship of 
 
            the hand and the thumb.  Any loss of function to the thumb 
 
            joints or a total loss of the member would always impair the 
 
            ability of the hand to function.  The last rating of Dr. 
 
            Ferlic also confirms this conclusion.  Dr. Ferlic did not 
 
            convert the claimant's rating to his hand.  He simply rated 
 
            each separate part of claimant's thumb that had been 
 
            affected by the crush injury and the subsequent fusion 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            surgeries.  
 
            
 
                 Based on the foregoing, it is determined that claimant 
 
            suffered a loss limited to his thumb and not to his hand.  
 
            The functional ratings assigned to claimant's thumb indicate 
 
            that he has had a 95% loss of the use of his thumb stemming 
 
            from the crush injury and the fusion surgeries that he has 
 
            undergone.  The evidence does not reveal a higher loss of 
 
            use than this assessment.  No physician indicated that 
 
            claimant had lost 100% use of his thumb.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  That claimant shall take nothing further from this 
 
            dispute.  Eaton has previously paid ninety-five percent 
 
            (95%) of sixty (60) weeks for the loss to claimant's thumb.
 
            
 
                 2.  The costs of this action shall be assessed to 
 
            defendant pursuant to rule 343 IAC 4.33.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Dennis L Hanssen
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
            Mr Alan Bjork
 
            Attorney at Law
 
            1300 Des Moines Building
 
            Des Moines Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803.1
 
                                                Filed June 15, 1992
 
                                                ELIZABETH A. NELSON
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHARLES A. THOMPSON,     
 
                      
 
                 Claimant,                    File No. 790945
 
                      
 
            vs.                           A R B I T R A T I O N
 
                      
 
            EATON CORPORATION,                D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            
 
            Claimant did not prove that a crush injury to his left thumb 
 
            extended to his left hand.  Claimant argued that he could no 
 
            longer use his hand because of the injury.  This analysis 
 
            was rejected consistent with the holding in Kellogg where an 
 
            ailment must extend into the greater member in order to be 
 
            compensated and in reliance with the language of the Code 
 
            section.  Claimant was awarded 95 percent for the loss to 
 
            his thumb.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT E. THOMAS,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 791130
 
         
 
         SIOUX CITY STOCKYARDS CO.,             A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         ZURICH-AMERICAN INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Robert E. 
 
         Thomas, claimant, against Sioux City Stockyards Co., employer, 
 
         and Zurich-American Insurance Co., insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained March 23, 1985.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         December 3, 1985.  The record was considered fully submitted at 
 
         the close of the hearing.  The record in this case consists of 
 
         the testimony of the claimant, Harry White, Bruce Gunsolly, Herb 
 
         Fischer, Mae Prather, and Rodney Livings; claimant's exhibits 1 
 
         through 24, inclusive, and defendants' exhibits A through E, 
 
         inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved December 3, 1985, the following issues are presented for 
 
         determination:
 
         
 
              1.  Whether claimant's work injury is the cause of the 
 
         disability on which claimant now bases his claim;
 
         
 
              2.  The extent of claimant's entitlement, if any, to 
 
         permanent partial disability benefits stipulated to be an 
 
         industrial disability; and
 
         
 
              3.  The claimant's appropriate rate of compensation.
 
              At the time of hearing, defendants attempted to raise the 
 
         issue of future medical benefits under Iowa Code section 85.27, 
 
         which issue was not raised at the time of prehearing, was not on 
 
         the hearing assignment order, and was not added to the hearing 
 
         assignment order by a request to amend the same.  Pursuant to the 
 
         industrial commissioner's decision in Joseph Presswood v. Iowa 
 
         Beef Processors, (Appeal Decision filed November 14, 1986), 
 
         holding an issue not noted on the hearing assignment order is 
 
         waived, the undersigned has no jurisdiction to consider the 
 

 
         issues surrounding Iowa Code section 85.27.
 
         
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant testified he began working for defendant employer 
 
         in approximately 1981 and that he has worked there as a night 
 
         yard man earning $5.25 per hour, a day yard man earning $5.00 per 
 
         hour, a loader-operator earning $6.75 per hour, and a relief 
 
         scalemaster earning $7.03 per hour.  Claimant admitted to being 
 
         involved in a 1980 car accident wherein his chest hit the 
 
         steering wheel and his knee hit the dashboard and a 1983 incident 
 
         at work when he was kicked in the left hip by a steer.  Claimant 
 
         denied any neck or back pain as a result of either incident 
 
         maintaining that prior to his work injury of March 23, 1985, his 
 
         activities were not limited in any way.
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment March 23, 1985 when he fell 
 
         approximately 15 to 20 feet off of a flatbed semi while trying to 
 
         pull off a bale of hay which then hit him on the top of his head.  
 
         Claimant thought he was unconscious for a minute or two and 
 
         testified that his neck was in Oreal bad pain," that he drove 
 
         himself home and that thereafter his wife took him to the Marion 
 
         Health Center emergency room.  Claimant saw the company doctor 
 
         (Morgan) the following Monday and was given a cervical collar 
 
         which he wore continually for the next year and periodically 
 
         since then.  After approximately six weeks when he did not feel 
 
         his pain was subsiding, claimant was referred to Alan Pechacek, 
 
         M.D., with whom he has regularly treated since.  Claimant 
 
         explained he was given a TENS unit, medication and about six 
 
         months of physical therapy, which provided only temporary relief 
 
         as he continued to experience pain in his neck and lower back.  
 
         Claimant testified that Dr. Pechacek released him to return to 
 
         work in August 1986, but that "no way" could he return to work at 
 
         the stockyards.  Claimant explained that since his release to 
 
         return to work, he has worked for Domino's Pizza first as a 
 
         delivery person and then as a manager in training, as an 
 
         assistant manager for Scotty's Restaurant, and that he is 
 
         currently employed at Breaman Paper Company earning $4.25 per 
 
         hour as a salesperson and delivering products.
 
         
 
              Claimant stated he is still under medical care although he 
 
         has not seen Dr. Pechacek since approximately August 1987, and 
 
         that he did not know if he will be going to his next appointment. 
 
          He described his current condition as basically the same as it 
 
         has been in the past--not necessarily worse but not necessarily 
 
         better.  Claimant is not currently on any prescribed medications, 
 
         takes Tylenol as needed and does no particular exercises.  
 
         Claimant acknowledged he attended a football game October 23, 
 
         1987 with a friend.  He described wearing pants, a shirt, a 
 
         sweater, and a coat of tan or gray color.  Claimant testified 
 
         that the seats in the stadium had no back support and that it was 
 
         therefore necessary for him to move positions every so often and 
 
         to get up and walk around.  Claimant acknowledged that during the 
 
         course of what he described as an exciting game, he may have 
 
         jumped up, extending his arms over his head, but that he Opaid 
 
         for it" suffering pain as a result.
 
         
 
              Harry White testified he was a high school classmate of 
 
         claimant and attended the football game with claimant in October 
 
         1987.  White stated that he sat next to claimant and that 
 
         claimant had to move his whole body to look in either direction 
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page   3
 
         
 
         
 
         since he could only move his head a slight amount.  White 
 
         recalled that they had to walk around at halftime because 
 
         claimant complained of headaches and backaches and that although 
 
         they went out after the game for a beer, they had to go home 
 
         between 10:00 and 10:30 p.m. because of claimant's complaints of 
 
         pain.  White also testified he lived with claimant and claimant's 
 
         family from March through May 1986 during which time claimant did 
 
         no lifting or yard work.
 
         
 
              Bruce Gunsolly testified he is the manager of the Domino's 
 
         Pizza establishment which employed claimant and that he was 
 
         responsible for training claimant.  He described claimant's job 
 
         there as pizza making and general cleanup with some driving 
 
         (delivery) and lifting of dough that comes in trays.  Gunsolly 
 
         explained he thought claimant performed his job satisfactorily in 
 
         the morning but that his condition deteriorated as the day wore 
 
         on and that "practically every day" it was necessary for claimant 
 
         to sit down and rest.  Gunsolly explained it was his 
 
         understanding that claimant was discharged from this employment 
 
         because of an unsatisfactory attendance record and because he 
 
         could not keep up with the management training program although 
 
         it was neither his responsibility nor did he have the authority 
 
         to discharge claimant.
 
         
 
              Herb Fischer testified he has known claimant for about four 
 
         years and was regularly able to observe him at family gatherings. 
 
          Fischer explained that before claimant's injury, claimant was 
 
         able to assist in a landscaping project with no evidence of 
 
         discomfort but that since his injury, claimant appears to be in 
 
         discomfort while sitting in a chair, complains of headaches and 
 
         takes aspirin.  Fischer explained he and claimant are part of a 
 
         card group which meets about once per month for five hours and 
 
         that it has been his observation that claimant has the ability to 
 
         move his neck approximately 45 degrees but that (as a general 
 
         rule) claimant moves his back rather than turn his head.
 
         
 
              Mae Prather testified she is currently employed as a 
 
         rehabilitation specialist with International Rehabilitation 
 
         Associates and was retained by defendants in this case to work 
 
         with claimant.  She explained her goal originally was to return 
 
         claimant to the same job he held at the time of his injury, 
 
         believing that that was claimant's goal as well, but that that 
 
         goal had to be abandoned when it was determined that claimant was 
 
         not physically capable of returning to that position.  Prather 
 
         opined that in order for claimant to be able to perform the 
 
         sedentary work which would be within his restrictions, he may 
 
         require some additional education since claimant has a lack of 
 
         transferable skills.  Prather closed claimant's file in October 
 
         1986 once claimant secured employment but reopened it in the 
 
         spring of 1987.  Prather stated that she is still providing 
 
         services to claimant as of the time of the hearing, but that 
 
         claimant was not available for home visits.  She opined that the 
 
         results of the MMPI may be correct in that claimant may be 
 
         internalizing problems which, as a consequence, leads to physical 
 
         symptoms.
 
         
 
              Rodney Livings testified he is a vice president of defendant 
 
         employer, that during the second quarter of 1985 claimant was 
 
         earning $6.79 per hour as a loader-operator and that at the time 
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page   4
 
         
 
         
 
         of his injury, claimant was performing the job of a 
 
         loader-operator.
 
         
 
              William P. Isgreen, M.D., specialist in neurology, testified 
 
         he first saw claimant April 30, 1986 with a history of pain in 
 
         his neck and shoulders (dorsal area of the spine) from the date 
 
         of his work injury to present.  Dr. Isgreen conducted a two-part 
 
         examination at that time: A general examination which was normal 
 
         and a neurological examination which disclosed an individual with 
 
         a normal posture to the neck and spine and no area of apparent 
 
         knotting or trigger sensitivity but a great deal of discomfort on 
 
         palpation.  Dr. Isgreen stated there was no sensory abnormality, 
 
         no reflex alterations, and no evidence of atrophy (meaning loss 
 
         of bulk) in any of the muscle groups that could be reasonably 
 
         attributed to any damage in the neck with the strength intact in 
 
         the arms and legs.  He noted claimant's volitional movements of 
 
         the neck were limited at that time to about five degrees in all 
 
         of the cardinal planes explaining:
 
         
 
              A.  ....The cardinal planes would be lateral movement, 
 
              that is, tipping the head toward a shoulder, rotation 
 
              of the head toward the shoulder around the spine, and 
 
              then putting the chin on the chest, or looking up at 
 
              the ceiling.
 
              Q.  Now from a neurological standpoint, what's 
 
              significant about the patient being unable to perform 
 
              such a function?
 
         
 
              A.  Well, one begins to question, Mr. Deck, that sort 
 
              of restriction of movement, because it's really a 
 
              nonphysiologic sort of response.  People whose spines 
 
              are fused can have oftentimes much better mobility than 
 
              five degrees.
 
         
 
                 It indicates a reluctance or an unwillingness or a 
 
              cooperation problem on the part of the patient more, I 
 
              felt at that time, than evidence of structural or 
 
              physiologic damage.
 
         
 
         (Defendants' Exhibit E, page 12)
 
         
 
              When Dr. Isgreen could not find any objective viable 
 
         abnormalities on examination, he diagnosed claimant as having a 
 
         "so called functional or characterological cervical syndrome" 
 
         meaning that the perpetuation of the complaints was better 
 
         accounted for on psycosocial and characterological elements than 
 
         on any structural abnormalities.  Dr. Isgreen ordered 
 
         hospitalization for the purposes of doing a myelogram, CT scan 
 
         and a personal profile (Minnesota Multiphasic Personalty 
 
         Inventory or MMPI), the latter in order to see if his notion of 
 
         characterological problems or conflicts were matched by the 
 
         results of the test.  The cervical myelogram showed:
 
         
 
              Spot films of the lumbar and lower dorsal areas are 
 
              unremarkable.  In the neck there is good filling of the 
 
              cervical sac.  Chord shadow is normal in width.  Nerve 
 
              root sheaths appear to be fill well without evidence of 
 
              significant defect.  The area of C7-Dl is a little 
 
              light but we see this pretty well on the oblique films.  
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page   5
 
         
 
         
 
              No significant myelographic defects are identified.  
 
              Crosstable lateral film again shows the angulation of 
 
              the spine of C3.  The appearance almost suggests 
 
              attempted or partial fusion of the spinous process of 
 
              C3 and C4.  Flexion and extension series would be 
 
              helpful or perhaps lateral tomograms to better evaluate 
 
              this.
 
         
 
              CONCLUSION:  1.  Cervical myelogram appears within
 
                               normal limits.
 
                           2.  The appearance of the spinous
 
                               process of C3 may well represent
 
                               attempted fusion of the C3-4
 
                               spinous processes.
 
         
 
         (Claimant's  Exhibit 5)
 
         
 
              The cervical spine showed:
 
         
 
              Questionable deformity of articular pillars of C3 with 
 
              some posterior wedging.  Could be traumatic or 
 
              developmental.  This includes the spinous process of 
 
              C3.  Questionable deformity of articular pillars of C6 
 
              which may be developmental.
 
         (Cl. Ex. 5)
 
         
 
              The CT scan of the cervical spine revealed:
 
         
 
              Contrast is seen in the thecal sac.  Chord shadow is 
 
              unremarkable.  Patient is slightly obliqued in the 
 
              scanner.  Some of this may be muscle spasm or old 
 
              deformity as there is some scoliosis or tilt seen on 
 
              the plain films on the AP view.  We do not identify any 
 
              definite evidence of a herniated disc.  No destructive 
 
              processes are identified.
 
         
 
         (Cl. Ex. 5)
 
         
 
              The MMPI was administered by James R. Hairston, Ph.D., 
 
         Department of Psychological Services, Marion Health Center, who 
 
         concluded:
 
         
 
                   This personality assessment is based primarily on 
 
              the claimant's voluntary responses to the test items as 
 
              they appear on the Minnesota Multiphasic Personality 
 
              Inventory (MMPI).
 
         
 
                   Profile.  The most elevated two-point clinical 
 
              code (1/3) within Mr. Thomas' personality profile 
 
              suggests that many of his efforts are ineffectively 
 
              directed toward trying to ward off anxiety.  This 
 
              client is using somatic complaints to avoid thinking of 
 
              or dealing with psychological problems.  This client 
 
              may be converting his psychological problems into 
 
              physical complaints that localize the difficulty 
 
              outside of himself.  He may be overlay [sic] 
 
              pessimistic, whinny, and complaining.     Depression 
 
              and anxiety are not overtly expressed,  no matter how 
 
              concerned the client is about poor  physical 
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page   6
 
         
 
         
 
              functioning.  Narcissistic and dependent features are 
 
              likely to be seen.  This client lacks insight into his 
 
              own behavior and is very resistant to interpretations 
 
              that there could be psychological involvement in his 
 
              physical complaints.  He is more likely to show 
 
              hypochondriacal features than hysterical features.  His 
 
              physical complaints are usually nonspecific and vague 
 
              and likely to involve backaches, gastrointestinal 
 
              complaints and so on.
 
         (Def. Ex. C)
 
              Dr. Isgreen felt Dr. Hairston's interpretation of the MMPI 
 
         confirmed his initial diagnosis of cervical pain syndrome felt 
 
         largely to be functional and on May 16, 1986, Dr. Isgreen wrote:
 
         
 
              [T]he neck x-rays present a curious problem.  Initially 
 
              they were read as normal, but there is no question that 
 
              there is a mild abnormality there.  It's not 
 
              dramatic,.but there is abnormality in the spinous 
 
              process [sic] of C3.
 
         
 
                 The fall and the description on the part of the man 
 
              certainly fits spinous process injury, and it could 
 
              well be that we are seeing attempted fusion of the C3 
 
              to the C4 spine, as well as some mild compression of 
 
              the C3 pillars.
 
         
 
                 According to the AMA Guidebook of 1984, defect in 
 
              one of the posterior elements is worth three per cent 
 
              to the body as a whole.  If we are generous to the man, 
 
              we will give him a defect of two of the posterior 
 
              elements, and add those together and get six per cent.  
 
              One might allow another one or two per cent for what 
 
              may be some compression at the C6 pillar, but this is a 
 
              bit chancy.
 
         
 
                 The bottom line then is a permanent-partial 
 
              impairment number of about seven to eight per cent to 
 
              the body as a whole.
 
         
 
                 ....
 
         
 
                 There are no further neurodiagnostic studies that I 
 
              would suggest.  There is nothing in the way of further 
 
              treatments that I have to offer.  Nor can I think of 
 
              anything that would be effective at this point in 
 
              time.
 
         
 
                 Because of the x-ray picture, it probably is not a 
 
              bad idea to get him out of the labor arena and into 
 
              something a little more sedentary.
 
         
 
         (Cl. Ex. 6)
 
         
 
              Explaining the impairment rating and his recommendation, Dr. 
 
         Isgreen testified:
 
         
 
         
 
              Q.  I want you to assume that Dr. Pechacek has rejected 
 
              the disability determination based upon X-ray findings 
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page   7
 
         
 
         
 
              and instead bases his opinion on range of motion of the 
 
              neck.
 
         
 
                 I would ask you:  Have you based your opinion and 
 
              diagnosis on range of motion as a small criterion for 
 
              disability?
 
         
 
              A.  I have not.
 
         
 
              Q.  Why not?
 
         
 
              A.  Because I did not feel that the range of motion was 
 
              physiologically reproducible and explainable on a 
 
              structural basis.
 
         
 
                 ....
 
         
 
              Q.  Doctor, what do you mean by "the labor arena"?
 
         
 
              A.  Well, I felt that given the configuration of the 
 
              neck and the possibility that it could have been 
 
              traumatically induced, that repeated neck movement in 
 
              the work place, particularly heavy labor, may be 
 
              productive of symptoms which would interfere with his 
 
              usual and customary activities.
 
         
 
         (Def. Ex. E, p. 41, 56)
 
         
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page   8
 
         
 
         
 
              On the request of claimant's counsel, William S. Thoman, 
 
         M.D., of the Sioux City Radiological Group, reviewed claimant's 
 
         x-rays and films of myelography in order to render an opinion 
 
         with regard to the etiology of any defects found in the films.  
 
         Dr. Thoman stated:
 
         
 
                 The subluxation at the level C3/4 could be either a 
 
              developmental defect or induced by trauma.  I do not 
 
              believe the 1970 x-rays, taken when the patient was 8 
 
              years old, are helpful in making that determination.  
 
              Certainly the condition could be a direct result of the 
 
              patient having fallen approximately 20 feet onto a hard 
 
              surface with a bale of hay then striking him on the 
 
              head.  Given that history, my opinion would be that 
 
              there was ligamentous injury as a result of the fall 
 
              which is the reason for the subluxation of C3 on C4.
 
         
 
         (Cl. Ex. 11)
 
         
 
              Medical records of Alan Pechacek, M.D., reveal claimant was 
 
         first seen May 14, 1985 and was regularly treated through August 
 
         11, 1987 without any significant improvement, as entry after 
 
         entry states claimant continues to do about the same.  In July 
 
         1986, Dr. Pechacek wrote:
 
         
 
              I do not believe that Mr. Thomas has achieved a point 
 
              of maximum recovery.  He's not shown any trends towards 
 
              additional improvement for a long time.
 
                 So far as an impairment determination is concerned, 
 
              I have done one based on his most recent office visit 
 
              of July 7, 1986.  My determination is based on the AMA 
 
              Guides to the Evaluation of Permanent Impairment, and 
 
              on Mr. Thomas's [sic] neck range of motion.  I believe 
 
              that Dr. Isgreen's determination was based on x-ray 
 
              findings.  At least that was my impression based on the 
 
              information shown me by Mr. Thomas.  Since it is likely 
 
              that the abnormalities seen on his x-ray studies are 
 
              the result of a congenital-developmental process, 
 
              rather than being the result of his cervical spine 
 
              trauma, I don't think that it's appropriate to use the 
 
              x-rays for criterion for determination of his 
 
              impairment.  Therefore, I have based my determination 
 
              on his limited neck motion.  On that basis, I feel that 
 
              Mr. Thomas has a 19% impairment of the whole person.
 
         
 
         (Cl. Ex. 9)
 
         
 
              Claimant was to return to see Dr. Pechacek three months 
 
         after his last visit on August 11, 1987; however, Dr. Pechacek is 
 
         last entry in his medical records states:
 
         
 
              10-24-87 On Friday, October 23, 1987, I attended a 
 
              football game between Sioux City Heelan and Sioux Falls 
 
              O'Gorman at Memorial Field in Sioux City.  I was 
 
              standing on the top row of seats towards the west end 
 
              of the north bleachers.   At half-time, I observed Mr. 
 
              Thomas, the patient, walk across from east to west at 
 
              the bottom of the  bleachers, approximately 20-25 rows 
 
              below me.  There was no trouble with visibility, and 
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page   9
 
         
 
         
 
              having seen the patient 24 times in the office since 
 
              May of 1985, I had no difficulty recognizing who the 
 
              patient was.  Also, someone in the stands sitting near 
 
              me said something to that affect[sic] that "there goes 
 
              Bob Thomas," thereby further confirming my 
 
              identification of the patient.  I noted that as he 
 
              walked across in front of me that he was walking quite 
 
              naturally and was able to turn his head towards each 
 
              side looking towards the field or towards the stands.  
 
              I observed him walk to the end of the bleachers and 
 
              then go across the west end of the field to the south 
 
              bleachers and take a seat about the 8th to 10th row on 
 
              about the 30 yard line.  He was seated toward the west 
 
              end of the south bleachers.  I was somewhat surprised 
 
              to see the patient at a football game on a cool chilly 
 
              October evening.  At the start of the game it was cold 
 
              and the temperature was probably in the upper 40's or 
 
              near 50.  As the evening and the game progressed, it 
 
              became colder such that by the end of the game the 
 
              temperature was probably in the middle to upper 30's or 
 
              close to 40.  The patient was wearing a medium weight 
 
              jacket, taupe in color, somewhat similar in appearance 
 
              to corduroy material.  He had no hat or gloves.  I make 
 
              this point because usually with the type of problems 
 
              that Mr. Thomas complains of have increased discomfort 
 
              in their neck muscles when exposed to cold.
 
         
 
                 I then decided that I would pursue this further and 
 
              crossed over the west of the football field to the 
 
              south bleachers.  I re-identified where he was sitting.  
 
              I then took a seat about 7 rows above him and in a 
 
              position where I could have an unobstructed view of the 
 
              patient.  I observed him directly thru the entire third 
 
              quarter of the ball game, which took approximately 30 
 
              minutes to play.  He was sitting with a friend wearing 
 
              a dark blue jacket that was seated to his left.  I 
 
              noted that during the course of my observations that 
 
              the patient moved his head and neck quite easily.  His 
 
              head posturing was quite normal and natural.  His 
 
              movements were quite easy on turning side to side or 
 
              looking around.  He was able to apparently joke and 
 
              laugh with his friend.  Since his friend was seated to 
 
              his left, the patient more often turned his head to the 
 
              left than to the right.  However I observed no 
 
              difficulty in the patient's head and neck movements 
 
              that would indicate any apparent neck pain, stiffness, 
 
              or difficulty during motion.  His movements were 
 
              natural, smooth, and without apparent problems.  Also, 
 
              he was able to sit throughout the time period of 
 
              observation without any support to his lower back.  He 
 
              had no observable problems with sustained sitting 
 
              without back support, and showed no movements that 
 
              indicated that he was suffering from any mid to lower 
 
              back pain, something that he has complained about 
 
              repeatedly on his visits.  He sat without any unusual 
 
              posturing, changes in position or posturing nor 
 
              contorting that would indicate that he was experiencing 
 
              any pain.
 
         
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page  10
 
         
 
         
 
                 I later moved down lower in the stands to where I 
 
              was sitting a few rows in front of him, but could still 
 
              turn easily and observe him.  Again, I did not observe 
 
              any abnormal positioning of his head, neck, or back and 
 
              any restriction or apparent painful movement.  I then 
 
              walked up the bleachers in front of and beside him to 
 
              sit a few rows above him.  As I came up in front of 
 
              him, he probably did see me but avoided eye contact and 
 
              did not acknowledge me verbally or visually.  He 
 
              adopted the same head neck attitude that he usually 
 
              displays in the office holding his head directed 
 
              straight forward.  His face was expressionless.  He 
 
              tended to look down with his eyes.  After I moved 
 
              beyond him,up into the stands, I then observed him 
 
              further and again noted no apparent difficulties with 
 
              his posture or movements of his head, neck, or back.  
 
              At one time during the game something happened such as 
 
              a fumble recovery by Heelan.  The patient was noted to 
 
              cheer by partially rising up out of his seat suddenly 
 
              and raising his right arm with a clenched fist, an 
 
              obvious movement of cheering for Heelan.  This movement 
 
              was made quite naturally and without any difficulty.  
 
              This is interesting because the patient indicates in 
 
              the office he is unable to raise his arms much more 
 
              than about 135-140 degrees.  When in the office he 
 
              displays marked difficulty to raise his shoulders and 
 
              arms.  This movement that he made at the football game 
 
              was much higher than he has ever shown in the office.  
 
              After deciding that I had observed him long enough to 
 
              satisfy myself, I then walked back down by him.  As I 
 
              stepped by him I looked back to my left looking 
 
              directly at him.  Again his eyes dropped down, his face 
 
              became expressionless, and his head was held straight 
 
              ahead, the same positioning and attitude that he 
 
              usually displays in the office.  Again eye contact and 
 
              acknowledgement of my presence did not occur.  I then 
 
              discontinued my observations and went on about my way.
 
         
 
                 What I observed during this time was in complete 
 
              contradistinction to what the patient complains about 
 
              and displays while being seen in the office.  I had 
 
              observed him for probably 45 minutes or more period of 
 
              time.  Based on my observations at the football game, I 
 
              believe that Mr. Thomas is malingering and faking his 
 
              symptoms and signs for some other purpose.
 
         
 
         (Cl. Ex. 3)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 23, 1985 is causally elated 
 
         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 
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page  11
 
         
 
         
 
         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).  The 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
                                     ANALYSIS
 
         
 
              It is not disputed that claimant sustained an injury March 
 
         23, 1985 which arose out of and in the course of his employment 
 
         or that the injury was the cause of temporary disability during a 
 
         period of recovery.  The essential question presented for 
 
         resolution is whether, and to what extent, the injury caused a 
 
         permanent disability to claimant.  As stated above, the question 
 
         of causal connection is essentially within the domain of expert 
 
         testimony.  It is accepted claimant was asymptomatic of back and 
 
         neck pain prior to March 23, 1985 which may have impaired or 
 
         interfered with his ability to perform his laborer's job with 
 
         defendant employer.  By the very meaning of the phrase, a person 
 
         with a permanent impairment can never return to the same physical 
 
         condition he or she had prior to the injury.  It is possible, 
 
         based on the evidence contained in the record, claimant may have 
 
         sustained some permanent impairment as a result of the work 
 
         injury and that he may never return to the same physical 
 
         condition he was in prior to the injury.  Dr. Isgreen, at least, 
 
         states claimant should remove himself from the labor arena and 
 
         move into more sedentary work which would tend to establish 
 
         claimant has some permanent work restrictions.  However, in light 
 
         of claimant's questionable credibility, it is impossible to 
 
         determine the extent of claimant's permanent disability.
 
         
 
              Functional impairment is an element to be considered in 
 
         reduction of determining industrial disability which is the 
 
         earning capacity, but consideration must also be given to the 
 
         injured employeeOs 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).
 
         
 
              Dr. Pechacek, the treating physician in this case, 
 
         originally rated claimant as 19 percent permanently partially 
 
         impaired based on claimant's subjective representation of his 
 
         neck range of motion specifically rejecting the x-ray findings 
 
         and stating that it is likely the abnormalities seen thereon were 
 
         the result of a congenital-developmental process rather than the 
 
         result of the trauma of the work injury.  Yet, Dr. Pechacek 
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page  12
 
         
 
         
 
         recants this opinion after observing claimant at a football game.  
 
         There is no question it was claimant Dr. Pechacek was observing 
 
         and that his observations were accurate for Dr. Pechacek had no 
 
         reason to misrepresent what he observed while a myriad of reasons 
 
         may be offered for claimant's representations or 
 
         misrepresentations of the state of his physical health.  Even 
 
         accepting claimant's testimony that he "paid for it" the 
 
         following day, the fact remains claimant could move his neck and 
 
         his arms above his head while representing to his physicians an 
 
         absolute inability to do so while under their care.  Indeed, at 
 
         the time of hearing, almost three years after his injury, 
 
         claimant continued to use his whole body to turn rather than move 
 
         his neck at all.  One is struck by Dr. IsgreenOs statement in his 
 
         deposition:
 
         
 
              Q.  Doctor, I note that your exam was approximately 
 
              twelve to thirteen months following the injury in March 
 
              of 1985.
 
         
 
                  Was that significant, in your opinion?
 
         
 
              A.  Well, one would have expected -- it's a reasonable 
 
              expectation that any musculoskeletal ligamental strain 
 
              would have resolved itself better than it did.  One 
 
              could take a heart out and put another heart in and 
 
              have a more functioning individual than -- with less 
 
              symptoms than Mr. Thomas after better than a year's 
 
              time for rest and recovery and recuperation.
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page  13
 
         
 
         
 
         
 
         (Def. Ex. E, pp. 15-16)
 
         
 
              Dr. Pechacek leaves us with the opinion claimant is 
 
         malingering and faking his symptoms and signs for some other 
 
         purpose.  Dr. Isgreen, on the other hand, rates claimant as seven 
 
         to eight percent permanently partially impaired based on the 
 
         objective findings of the myelogram and CT scan.  Dr. Isgreen 
 
         specifically rejects considering range of motion because of 
 
         claimant's limited mobility.  However, while Dr. Isgreen may be 
 
         willing to give claimant "the benefit of the doubt" by stating 
 
         claimant's spinous process injury is related to the 1985 fall, 
 
         the law of workers' compensation in Iowa deals in burden of proof 
 
         rather than benefit of the doubt.  As stated above, a possibility 
 
         is insufficient; a probability is necessary.  Further, nowhere in 
 
         either Dr. PechacekOs or Dr. Isgreen's notes or deposition is any 
 
         reference made to claimant's 1980 auto accident or 1983 work 
 
         injury.  A question arises as to whether or not a complete and 
 
         accurate history was given to the physicians by claimant.  There 
 
         are, finally, the opinions of Dr. Thoman who causally connects 
 
         claimant's fall to what is viewed on the x-ray films but provides 
 
         no restrictions, limitations or impairment and Dr. Shenk who 
 
         conducted the test who opines the conditions viewed may be the 
 
         result of trauma or may be developmental.
 
         
 
              Claimant asks us to believe his earning capacity has 
 
         realistically been reduced by at least 57 percent. ($7.00 per 
 
         hour to $4.00 per hour. (See page 4 of claimant's Post-hearing 
 
         Brief and Argument)      If one were to believe all of claimant's 
 
         symptoms, this figure may, in fact, be realistic.  However, it is 
 
         simply impossible to believe all or indeed any of claimant's 
 
         subjective representations of pain and range of motion in light 
 
         of the medical testimony and claimant's own personal conduct.  It 
 
         is only at the point at which disability can be determined that a 
 
         disability award can be made.  While claimant may have sustained 
 
         some permanent disability as a result of the work injury of March 
 
         23, 1985, claimant has failed to present sufficient credible 
 
         evidence on which an award of permanent partial disability 
 
         benefits may be predicated.  In other words, because of the 
 
         serious questions surrounding claimant's credibility, it is 
 
         impossible to determine the extent of whatever any permanent 
 
         partial disability may be.  There are many elements to consider 
 
         in making a determination of industrial disability not the least 
 
         of which involve consideration of claimant's subjective 
 
         complaints, physical status, abilities and inabilities.  The 
 
         industrial commissioner has said many times an award of 
 
         industrial disability cannot be based on mere speculation.  See 
 
         e.g. Umphress v. Armstrong Rubber Co. (Appeal Decision filed 
 
         August 27, 1987).  If claimant is not being truthful in 
 
         representing this subjective status and it is concluded he is 
 
         not, it is impossible to determine what is claimant's true loss 
 
         of earning capacity as a result of the work injury.  To make such 
 
         a decision would place the undersigned in the position of relying 
 
         on mere speculation.  Claimant, therefore, will take nothing 
 
         further as a result of these proceedings.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page  14
 
         
 
         
 
         following facts are found:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment March 23, 1985 when he fell 
 
         approximately 15 to 20 feet off of a flatbed semi while trying to 
 
         pull off a bale of hay which hit him on the top of the head.
 
         
 
              2.  Since that date, claimant perceives persistent neck and 
 
         back pain, extreme limitation of neck motions, and notes little 
 
         to no improvement in his condition.
 
         
 
              3.  Claimant's treating physician, Alan Pechacek, M.D., 
 
         rejects claimant's symptoms opining claimant is malingering and 
 
         faking his symptoms and signs for some other purpose.
 
         
 
              4.  Claimant's evaluating physician, William Isgreen, M.D., 
 
         rejects claimant's limitation of neck motion as a result of 
 
         characterological or psychosocial elements rather than as a 
 
         result of structural abnormality and opines claimant's condition, 
 
         as viewed on the x-rays and films, may be the result of trauma or 
 
         may be developmental.
 
         
 
              5.  Notwithstanding his representation to the contrary, 
 
         claimant does have the ability to move his neck and wave his 
 
         arms.
 
         
 
              6.  Claimant was not a credible witness.
 
         
 
              7.  Claimant has been advised to leave the labor arena and 
 
         secure more sedentary work.
 
         
 
              8.  Claimant may have sustained some permanent impairment as 
 
         a result of the work injury.
 
         
 
              9.  Claimant failed to present credible evidence which would 
 
         support an award of industrial disability.
 
         
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has failed to establish his work injury is the 
 
         cause of any ascertainable permanent disability.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing further from these proceedings.
 
         
 
              Costs are assessed against claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 31st day of March, 1988.
 
         
 

 
         
 
         
 
         
 
         THOMAS V. SIOUX CITY STOCKYARDS CO.
 
         Page  15
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                     DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. G. Daniel Gildemeister
 
         Attorney at Law
 
         605 Davidson Building
 
         Sioux City, Iowa 51101
 
         
 
         Mr. Paul W. Deck, Jr.
 
         Attorney at Law
 
         635 Frances Building
 
         Sioux City, Iowa 51101
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1402.40; 1800
 
                                                       Filed 3-31-88
 
                                                       Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT E. THOMAS,
 
         
 
              Claimant,
 
         
 
         vs.                                     File No. 791130
 
         
 
         SIOUX CITY STOCKYARDS CO.,           A R B I T R A T I 0 N
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         
 
         ZURICH-AMERICAN INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40; 1800
 
         
 
              Claimant was injured when he fell from a flatbed semi and a 
 
         bale of hay hit him on the head.  There was a dispute in the 
 
         medical testimony over whether claimant's condition was a result 
 
         of trauma or was developmental.  Medical experts did not consider 
 
         claimant's allegations of subjective symptoms to be credible.  
 
         Claimant was not found to be credible.  Held that while claimant 
 
         may have sustained a permanent impairment as a result of the work 
 
         injury, there was insufficient credible evidence in the record to 
 
         support any award of industrial disability as the only basis for 
 
         an award would be speculation.