BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LINDA GORDON, Claimant, vs. File No. 846902 HILLS BANK AND TRUST CO., A P P E A L Employer, D E C I S I O N and CONTINENTAL INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 16, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: The decedent died of acute cardiac dysrhythmia with arrest. There is insufficient evidence in the record to find that the decedent had a preexisting circulatory or heart condition. Dr. From stated that the decedent had no coronary atherosclerosis. Dr. Davia indicated that there was insufficient data to establish a definite diagnosis of organic heart disease. Therefore, the line of cases in which an employee had a preexisting condition are not directly applicable. See, Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). Even if the line of cases dealing with heart attacks with a preexisting conditions were applicable, the claimant has not proved the decedent's heart attack was compensable. Claimant has met neither the legal nor the medical test. See, Bailey v. Moorhead Construction Co., Appeal Decision, July 27, 1992, File no. 872710. Claimant has not proved that the decedent's work environment was stressful for him. Even if claimant had proved a stressful work environment, claimant has not met her burden of proving a causal connection between the work and the heart attack. The medical evidence is insufficient to meet claimant's burden of proving the causal connection. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1992. Page 2 ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. John L. Riccolo Attorney at Law Suite 1140, The Center 425 Second St., SE Cedar Rapids, Iowa 52401 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 1107; 1108.10; 1402.30; 2202 Filed September 16, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LINDA GORDON, Claimant, vs. File No. 846902 HILLS BANK AND TRUST CO., A P P E A L Employer, D E C I S I O N and CONTINENTAL INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ 1107; 1108.10; 1402.30; 2202 Claimant failed to prove that decedent's sudden cardiac dysrhythmia that resulted in immediate death, while watching an exciting basketball game at home with friends, was caused by job stress even though there was evidence of a number of factors that could have caused stress from his job; i.e. (1) the bank president was shot to death in his office; (2) the bank lost its liability insurance coverage for officers and directors; (3) decedent and the bank were sued for mishandling a trust account; and (4) decedent worked long hours and spent a lot of time at the bank. Four heart specialists gave interesting expert testimony on the cause of sudden cardiac death. Claimant did not prove that the decedent's work environment was stressful to him. This was not a case where decedent had a preexisting heart condition so Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974) was not directly applicable. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LINDA GORDON, : : Claimant, : : vs. : : File No. 846902 HILLS BANK AND TRUST CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CONTINENTAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Linda Gordon, claimant, the surviving spouse of James R. Gordon, against Hills Bank and Trust Company, employer, and Continental Insurance Company, insurance carrier, defendants, for benefits as the result of the alleged injury and death of James R. Gordon on March 14, 1986. A hearing was held in Cedar Rapids, Iowa, on November 16, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by John L. Riccolo. Defendants were represented by Dorothy L. Kelley. The record consists of the testimony of Tom Hobart, an attorney; John Keen, claimant's friend; Cindy Mills, decedent's secretary; Patricia Keen, claimant's friend and former wife of John Keen; Linda Gordon, claimant; James Pratt, employer's controller; Richard See, a business acquaintance of decedent; Roy Justis, decedent's work associate; Barbara J. Mahanna, employer's receptionist; Dwight Seegmiller, employer's president and chief executive office; claimant's exhibits 1 through 29 and defendants exhibits 1 through 20. Claimant presented a prehearing brief and defendants presented a description of disputes at the time of the hearing. The deputy ordered a transcript of the hearing. Both attorneys submitted outstanding posthearing briefs. issues The parties presented the following issues for determination at the time of the hearing Whether claimant's decedent sustained an injury which arose out of and in the course of employment with employer on March 14, 1986. Whether the alleged injury was the cause of permanent disability, more specifically, death of claimant's decedent. Page 2 Whether claimant is entitled to permanent disability benefits as the surviving spouse of her decedent. Whether claimant is entitled to funeral expenses of her decedent. findings of fact injury It is determined that claimant did not sustain an injury on or about March 14, 1986, which arose out of and in the course of employment with employer. It is further determined that claimant's death was not caused by his employment. Claimant's decedent, James R. Gordon, was a graduate of the University of Iowa Law School who practiced law for a short period of time and was employed as the vice-president and trust officer of employer bank at the time of his death. He was born on March 2, 1948, and was 37 years old at the time of his death on March 14, 1986. The death certificate states, "No anatomical cause of death; commensurate with cardiac death." (claimant's exhibit 11; defendants' exhibit 1). A summary of pertinent information from the autopsy report states, "No anatomic cause of death found, clinical history consistent with acute cardiac arrest." (cl. ex. 10, p. 35; def. ex. 1, p. 10). W.J. Powers, M.D., pathologist, reported on March 24, 1986: Enclosed is the final report of the autopsy examination performed on the body of James Gordon on March 15, 1986 (MXA-86-1). The completion of the microscopic portion of the examination confirmed our initial impression, that death is due to a well witnessed episode of acute cardiac dysrhythmia with arrest as there were no gross or microscopic anatomic changes explaining the sudden death. (claimant's exhibit 10, page 34; defendants' exhibit 1, page 11) Some pertinent details from the autopsy report are as follows: The clinical summary shows that claimant collapsed at home while watching a basketball game. Claimant was in previous good health except for a history of hypertension for which treatment was unknown. Claimant's heart weighed 425 grams. His coronary arteries were small in caliber, but totally lacking of any atheromatous or calcific change and there was no significant narrowing in any area nor any occlusions or thromboses. There were some small and insignificant patches of myocardial fibrosis widely scattered and generally in the subepicardial zones. There was no extensive infarction, ischemic damage or fibrosis found. The pathologic summary stated there were no gross or Page 3 microscopic anatomic findings to explain this individual's sudden death. The pathologist concluded that death was due to a sudden cardiac rhythm disturbance with fatal and irreversible cardiac arrest (cl. ex. 10, pp. 36-40; def. ex. 1, pp. 5-9). Peter J. Schwartz, M.D., professor of medicine at the University of Milan, Italy, an internationally known cardiologist and prolific author (cl. ex. 13), examined medical documents, depositions and deposition summaries prepared by claimant's attorney and wrote a letter on December 28, 1988. Dr. Schwartz concluded as follows: I can say, to a reasonable degree of medical certainty, that the job-related stress probably caused the development of cardiac electrical instability which in turn favoured the onset of ventricular fibrillation that resulted in sudden death. The ultimate trigger for the lethal arrhythmia could have been virtually any external event, more probably a condition associated with some increase in sympathetic activity as it happens with emotions of any origin. The negative findings at post-mortem examination and the negative clinical history suggest that, except for the work-related stress-induced cardiac electrical instability, the lethal arrhythmia would probably not have occurred. (claimant's exhibit 12) Thomas B. Graboys, M.D., board certified in internal medicine and cardial vascular disease, a professor of medicine, a treating physician, a cardiac research physician and also a prolific writer (cl. ex. 15), examined the same background material and made a written report on October 19, 1988 (cl. ex. 14). His particular specific area of research is in the area of sudden cardiac death and heart rhythm disturbances (ex. 25, p. 176). Dr. Graboys stated on October 19, 1988, Assuming in Mr. Gordon's case we can eliminate such variables such as illicit drug or diuretic use, sudden prolonged changes in diet, or the use of certain dietary supplements, known obvious chest trauma, acute and chronic alcoholism, or the use of cocaine, then it would be my opinion from a review of the material and deposition summaries that this man's heart was "primed" due to a period of chronic, intolerable stress which would have resulted in chronically elevated levels of adrenaline-like substances and altered the level of his serum potassium. (claimant's exhibit 14) Dr. Graboys further elaborated on his theory by testifying in his deposition: A. ...What I'm saying is that our hypothesis is Page 4 that their death is the culmination of prolonged period of change. This doesn't occur simply within a few minutes, again, in people without heart disease. Q. Would you explain how this occurs over time? A. For example, a given individual who's susceptible to stress, and knowing that stress is very difficult to quantitate, but that individual's response to stress is manifest by a release of adrenaline-like substances in the body, and we see many of these patients. When an individual is under chronic release of adrenaline induced by stress, the chemical effect of adrenaline is to shift potassium from outside the cell into the cell. When that occurs, the normal potassium, the normal potassium blood level may then lower, and that is a known and fully documented association between that event, i.e., low serum potassium and abnormalities in the heart rhythm. In fact, if you look at patients having cardiac arrest in the hospital, there's a very strong relationship between the low potassium and that event. (claimant's exhibit 25, pages 181 & 181) Dr. Graboys stated: It's my impression from the review of the material that I have available that Mr. Gordon's sudden cardiac death was a direct result to work-induced stress. *** The basis for that is that individuals with normal hearts don't die suddenly unless their heart is primed in some way. Our experience has indicated that such individuals may have their heart primed for a fatal event by high levels of adrenaline induced by stress over a longer period of time which results in the shifting of potassium from outside the cell to inside the heart cells resulting in an abnormal heart rhythm. (claimant's exhibit 25, p. 191). At another point, Dr. Graboys testified, "...In my estimate the long-term stress that he was under was in fact the inciting event for his premature demise." (clmt. ex. 25, p. 202). Dr. Graboys stated: A. I think he was under a specific level of stress that began with the homicide of the bank Page 5 president. Q. How long a period was that before his sudden death? A. I don't recall precisely, a year, year and a half. I don't know the exact figure. (claimant's exhibit 25, pages 236 & 237). The bank president, John Hughes, was murdered in the bank by a disgruntled customer on December 9, 1985, and claimant's heart attack occurred on March 14, 1986, a period of approximately three months later. Paul From, M.D., a board certified internal medicine doctor and originator and director of the coronary care unit at Mercy Hospital in Des Moines (def. ex. 10, pp. 4-7), examined essentially the same background documents and gave a written report on June 22, 1988. He concluded as follows Dysrhythmia occurs at a moment in time. There were no findings in the autopsy to suggest that if he had been truly subjected to stress, he had reacted unfavorably in his body in any way to that stress. He was stressed at the moment of death but this was in relationship to an athletic event and occurred sometime after he had left his job. There was no suggestion in any material I did review that he thought his job was truly stressful to him to the point of complaining about it to other people. Mr. Gordon did not sustain a myocardial infarction and, in fact, had no coronary atherosclerosis. His sudden cardiac death must, therefore, have been due to dysrhythmia, which all authorities conceed [sic] is due to occurences at a moment in time. I cannot relate this moment in time to anything he had been subjected to at work, and therefore, would not consider his death, in any way, causally related to his work. (defendants' exhibit 6, page 5) Dr. From gave a deposition on August 30, 1989, in which he stated that the cause of death was arrhythmia and ventricular fibrillation (def. ex. 10, p. 49). After his examination of the depositions and deposition summaries prepared by claimant's counsel he concluded there was no psychological or physical stress at work which in any way hastened, lighted up or aggravated Mr. Gordon to sustain a cardiac death (def. ex. 10, pp. 49 & 50). More particularly, Dr. From believed he died from the excitement of watching the basketball game. He phrased his opinion as follows: A. He was known to be a very avid Hawkeye fan, University of Iowa fan. He wanted to work in Iowa City, because he wanted to be near the Hawkeyes. Page 6 He was watching a home game at home during a party on the night that he died. It was a very exciting game. It was in the last minutes of the game. There was some dispute among the people watching the television game at that point and the referee's calls as to what was going on at the game during which he collapsed, and I think that with the sudden outpouring of adrenaline that he would have in a situation such as that, that he developed the cardiac arrhythmia ventricular fibrillation and died almost instantaneously with it. (defendants' exhibit 10, pages 50 & 51). Dr. From further elaborated: A. Dysrhythmia means an irregularity of the rhythm of the heart. It's not normal rhythm. It's dysrhythmic. This will occur at a moment in time, and usually it's related to the events that are occurring at that moment in time, as far as we can tell.... *** So that it you have dysrhythmia, which is a cardiac irregularity, it's often related to what's going on at that moment in time versus, for example, a myocardial infarction, which may be the culmination of events taking place over a great number of years and also culminate at a moment in time but would have no relationship to what's going on at the time, because it's going to happen some time, and it just picks a particular moment and happens. That's what I was trying to say with dysrhythmia occurs at a moment in time. (defendants' exhibit 10, pages 51 & 52) All of the medical professionals, including Dr. From, referred to a letter to the editor that Dr. Graboys wrote to the New England Journal of Medicine which describes a 54-year old avid Celtics fan who was observed with a 24-hour electrocardiographic ambulatory recording which showed the patient had more complex arrythmias while watching a game which correlated to what he was watching (def. ex. 10, pp. 59 & 60). This colloquy then transpired with Dr. From: Doctor, do you have an opinion as to whether or not watching a game, watching the playoff game of your favorite team in an individual who had not had a myocardial infarction, what effect would it have on such an individual, if any? A. If the pathways are correct and right for brain to the adrenal medulla, to release of adrenaline, to the elaboration of the catecholamines, which are the breakdown products Page 7 of adrenaline that actually affect the heart rate, those things can affect the heart rate and make it go faster. The adrenaline getting in there can certainly drop the blood potassium immediately, put the potassium into the cells of the heart and other cells of the body--not just the heart but all over the body--drop the potassium, bring about other arrhythmias which can be fatal, and that must be the mechanism that we have in instantaneous death that we've been discussing in which there has to be some explanation for it. Q. And does this apply to Mr. Gordon's case? A. I think so.. (defendants' exhibit 10, pages 62 & 63) Dr. From did not think that the claimant was suffering from stress. He stated: A. Well, I didn't get anything in the extremely voluminous material that I went over that Mr. Gordon had anything that I would consider stress.... There was no time anyplace in which he ever complained to anybody that stress was getting to him, either by saying those actual words or by implying it, that "I don't feel well" or "My chest hurts" or "My stomach is killing me," or something like that, or "I can't take this anymore; I've got to get away for a while." I mean I didn't get any statements like that. It's that kind of stress which leads to the outpouring of cortisol over a long period of time which brings about these changes in the body. I found nothing like that. I, therefore, thought that anything that had to happen to him had to be instantaneous and in adrenal mechanisms and were not related to the job in any way. (defendants' exhibit 10, pp. 65 & 66) James E. Davia, M.D., a cardiologist, board certified in internal medicine and cardiovascular disease, with a background as a professor of medicine, prolific writer and former chief of cardiology service at Walter Reed Army Medical Center, examined the same documents as the other doctors essentially and made a written report on May 18, 1989 (def. ex. 11, deposition exs. 1 & 2). Dr. Davia wrote as follows: In the following paragraphs I will submit my comments on the cause of Mr. Gordon's death and whether there is sufficient evidence to support the claim that his death was related to job stress. Page 8 The initial consideration that must be addressed is the degree to which Mr. Gordon suffered from job related emotional stress. The claimants indicate that Mr. Gordon's long hours on the job, the shooting death of Mr. Hughes, and the lawsuit against the bank and Mr. Gordon were stress factors that were responsible for his sudden death. However, when the testimonies of a large number of people who worked with Mr. Gordon or knew him very well as a person are carefully examined, the picture emerges of an individual who was a dedicated, conscientious worker but who also was a relaxed, laid-back type of person who handled the stresses and strains of his employment very well. This conclusion may be supported from the statements made in the depositions of his coworkers, friends, and wife: 1) Coworker Dwight Seegmiller stated on two occasions that Mr. Gordon was relaxed at the bank and that even though he spent many hours at the bank he was not working all of the time but rather spent time relaxing and pursing such leisure activities as watching television and reading a large variety of newspapers. On the weekends while at work he would watch athletic events on television. His attitude toward the lawsuit was only described as "positive". 2) Coworker James Miller stated that Mr. Gordon would often sit back, light his pipe, and read the newspapers on the job. He also stated that none of the other bank officers ever claimed that Mr. Gordon was working excessively hard. 3) Coworker James Pratt did not believe that Mr. Gordon had been working too hard or that he had been under excessive stress or pressure. 4) Friend Mark Jennings stated that Mr. Gordon never complained of working long hours. 5) Friend Vicki Jennings stated that Mr. Gordon never complained of being overworked or that he was under any stress or pressure on the job. 6) Friend, nurse, and stress manager Patricia Keen stated that Mr. Gordon never complained of stress, pressure, fatigue, or long hours on the job. 7) Wife Linda Gordon stated that her husband did not complain of his work activities or any unhappiness after the death of Mr. Hughes. Furthermore, she stated that he enjoyed his work and never mentioned wanting to terminate his employment at the bank. On the basis of the foregoing testimonies of the very individuals who knew Mr. Gordon the best, it must be concluded that there is no evidence that he perceived himself as one who was fatigued, harrassed, or pressured as a result of his job activities. On the contrary, he was an easy-going person who handled the stresses and strains of his job remarkably well and even found time to pursue leisurely activities in his own office. It would seem that if Mr. Gordon was as fatigued and stressed out to the point of death as the Page 9 claimants allege, someone someplace along the way would have detected that he was having problems in this regard, but this was not the case. (defendants' exhibit 11, deposition exhibit 2, pages 1 & 2). In the medical realm, Dr. Davia testified: Some researchers claim that patients whose hearts are "primed" by ongoing psychological stress are especially vulnerable to sudden cardiac death, but this suggestion is based upon animal experiments and anecdotal evidence and has never been adequately tested in human beings with results published in a recognized scientific journal. Furthermore, there has never been a well documented case in a refereed medical journal of an individual without organic heart disease in whom it could be unequivocally proved that sudden cardiac death resulted from chronic job stress....It may thus be concluded that adequate scientific information that supports the allegations of the claimants is not available and their position in a legal setting would be very week. (defendants' exhibit 11, deposition exhibit 2, pages 2 & 3). Dr. Davia goes on to give his own opinion, "The cause of death in this case remains unknown. There are a variety of etiologies of sudden cardiac death that have not been excluded in Mr. Gordon's case." (def. ex. 11, dep. ex. 2, p. 3). At this point he mentions certain microscopic abnormalities and certain electrophysiologic abnormalities. Dr. Davia adds the following insight: In the autopsy data there are some findings that deserve mention because they provide a possible explanation for the sudden fatal outcome in this case. While there is insufficient data to establish a definite diagnosis of organic heart disease in the usual sense of the word, there were three abnormalities described by the pathologist that may have played a significant role in Mr. Gordon's demise. First of all, the heart was heavy, a finding that implies an overabundance of heart muscle. It is well known that hypertrophied (thickened) heart muscle is very susceptible to sudden heart rhythm abnormalities. Secondly, the coronary arteries were described as "small". Unfortunately, the pathologist did not provide quantitative date in this regard, but the fact that he mentioned their small size is very significant. There was also a degree of subintimal thickening of the coronary arteries which is a pathologic abnormality that can narrow the inside diameter of blood vessels and thus reduce blood flow. Small coronary arteries, and especially those with narrowing, translate into Page 10 less blood flow to the heart and therefore greater vulnerability to the genesis of heart rhythm abnormalities that may be fatal....The third autopsy finding of possible significance is the description of widely scattered fibrosis in the heart muscle which means that some of the muscle had been replaced by scar tissue. The pathologist did not provide quantitative data on the amount of fibrosis except to state that it was insignificant. However, even a small degree of fibrotic replacement of heart tissue has the potential for generating abnormal electrical circuits that result in fatal heart rhythm abnormalities, especially in the setting of a thickened heart muscle that may be undersupplied with oxygen because of small coronary arteries. It is therefore reasonable to postulate that the combined effects of these three abnormalities could have provided the pathophysiologic substrate for the heart rhythm abnormality that resulted in Mr. Gordon's sudden demise. It is also important to emphasize that Mr. Gordon's sudden death occurred in the setting of intense emotional excitement of an athletic event. As opposed to the problem of chronic emotional stress which has no significant scientific support as a cause of sudden cardiac death, there is at lease [sic] some degree of support in the medical literature for the concept of acute emotionally traumatic events serving as a trigger mechanism for the initiation of fatal heart rhythm abnormalities. It is therefore reasonable to suggest that the emotionally traumatic event of the poor call by the referee against the favored home team was the trigger event that precipitated a serious heart rhythm disturbance in a heart muscle that had been rendered vulnerable as a result of the aforementioned abnormalities. Another possible contributing trigger mechanism in this case was Mr. Gordon's alcohol consumption immediately prior to death as this substance is known to have the potential for causing heart rhythm abnormalities. In summary, it is evident to me that there is insufficient data to support the claimants' position that Mr. Gordon's death can be ascribed to job related stress, pressure, and fatigue. While the precise mechanism of death will never be known with certainty, there are several reasonable alternative explanations that have a firm scientific basis. (defendants' exhibit 11, deposition exhibit 2, pages 3 & 4) Dr. Davia gave a deposition on October 21, 1989, in which he basically reiterated the data from his letter just quoted (def. ex. 11). Most importantly he stated that claimant's decedent died from a sudden heart rhythm Page 11 abnormality called an arrhythmia which rendered his heart incapable of pumping blood and therefore, caused his death (def. ex. 11, p. 11). He added, "My opinion is that the cardiac death that Mr. Gordon experienced was not in any related-- in any way related to his job situation." (def. ex. 11, p. 13). Moreover, "I believe that there is no indication in the record that Mr. Gordon perceived himself to be under any undue amount of stress." (def. ex. 11, p. 13). Dr. Davia added: I see no indication that he ever saught [sic] any type of help in that regard, and as a matter of fact, on the contrary. The picture emerges here when you read all of these depositions that he was a fairly easygoing person who was laid back and he had time to relax on the job. That's not to say he wasn't a hard worker, but he certainly had time to relax and pursue some leisurely activities on the job, and this type of existence never led him to seek any type of counseling or medical help related to stress on the job. (defendants' exhibit 11, pages 15 & 16) There was evidence of nonwork stress because decedent's father died in 1984 allegedly from hypertension. His mother became mentally ill and decedent became responsible for her care and managing her affairs (def. ex. 11, pp. 19 & 20). Dr. Davia said there was no body of accepted medical evidence that people who have chronic long-term stress suffer from low potassium levels and magnesium levels. If this was an accepted medical fact, then the medical community would be recommending that people who perceive themselves to be under stress should be taking supplemental potassium and magnesium pills (def. ex. 11, pp. 32 & 33). Like Dr. From, Dr. Davia was shown an article in the New England Journal of Medicine, authored by Dr. Graboys entitled, "Stress and the Aching Heart", in which Dr. Graboys wrote: Although a wealth of evidence has linked central and peripheral sympathetic mechanisms to changes in cardiac electrophysiology, an independent relation between psychosocial stress and cardiac mortality has yet to be defined, owing to the difficulty inherent in the quantification of higher neural activity. (defendants' exhibit 11, deposition exhibit 3, page 1) Dr. Davia commented: A. First of all, he does not discuss his hypothesis that chronic stress causes hypokalemia that primes the heart for sudden death. Second of all, he admits that causality, that is, a causative relationship between psychosocial stress and cardiac mortality has yet to be defined, and I Page 12 would like to quote, if you'll allow me to do so. (defendants' exhibit 11, page 34) At this point Dr. Davia quoted the above quoted statement of Dr. Graboys. Dr. Davia said that one of the most common causes of an enlarged heart is high blood pressure and noted that claimant was rejected for ROTC at age 21 because he was determined to be borderline hypertensive at that time. Subsequently, claimant had very few blood pressure readings and those were recorded as generally normal. The bottom line conclusion of Dr. Davia is as follows: A. I don't think that there is any cause, specific cause that we can identify in this case that we could say was responsible for his sudden fatal heart rhythm abnormality with any real degree of medical certainty. (defendants' exhibit 11, page 91) Claimant's decedent was classified as 4-F with the selective service system (def. ex. 15, p. 3). The notes of the decedent's personal physician on July 2, 1969, when claimant's decedent was 21 years old, show that he failed the ROTC physical examination due to an elevated blood pressure of 140/90 on several repeated tests (def. ex. 5, pp. 1-3). Also, claimant saw his personal physician on April 17, 1980, for chest pain with numbness to his fingers on the right hand. It was noted that he had increased blood pressure and the notation states 120-122/88. No heart or blood pressure workup was done and there are no blood pressure readings between April of 1980 and the time of claimant's death, nor did he have any cardiograms or stress tests. In February, before his death, claimant's decedent told her that he had a pain in his chest. He pounded his chest at that time. His wife recommended that he have it checked out, but he refused to do so stating it was just a cramp (tr. p. 214). From the foregoing evidence it is the determination of this deputy that the cause of claimant's decedent's cardiac dysrhythmia which resulted in his death is unknown and cannot be determined. It is further determined that even though a number of unusual circumstances occurred at work prior to decedent's sudden and unexpected death that he exhibited no manifestation of stress to his coemployees, nor did he complain of stress, nor did he seek any treatment for stress. A photograph of decedent with other bank employees taken just a few hours before his death on March 14, 1986, shows a smiling individual who from all appearances is relaxed, happy and healthy (def. ex. 14). He considered the lawsuit against himself and the bank to be groundless and he was well prepared to counter it. Decedent and the bank later won the suit. The opinions of Dr. From and Dr. Davia are preferred Page 13 over the opinions of Dr. Schwartz and Dr. Graboys because they comport best with all of the other evidence in this case both of a medical nature and from the lay witnesses. The most likely precipitating cause of decedent's dysrhythmia that caused his instant death is probably the excitement of the basketball game. John Keen testified, "There had been a call in the basketball game. The ref made a call that we objected to, and Mark and I were yelling, and Jim just fell over face front onto the floor." (transcript p. 98). Patricia Keen testified, "He uttered something, and I remember it being, `Oh, my God, what's happening?' He stood up halfway and then collapsed on the floor." (tr. p. 170). The bulk of the evidence did not support the conclusion that decedent was suffering from job-related stress either actual or perceived, even though John Hughes had been shot to death at the bank three months earlier, the bank's liability insurance carrier had withdrawn officer and directors liability coverage and another patron of the bank sued the bank and decedent personally for mismanagement of a trust. Decedent demonstrated no stress from these situations to his coworkers and coemployees at the bank. He did not complain to his wife. He did not seek any medical or stress relief of any kind. In conclusion, it must be determined that claimant's decedent did not sustain an injury arising out of and in the course of employment with employer on March 14, 1986, nor did his employment substantially cause or contribute to his death. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant did not sustain the burden of proof by a preponderance of the evidence that her decedent sustained an injury which arose out of and in the course of employment with employer. Iowa Code section 85.3(1); 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); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Claimant did not sustain the burden of proof by a preponderance of the evidence that a preexisting condition or disability was aggravated, accelerated, worsened or lighted up by decedent's employment. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Claimant did not sustain the burden of proof by a preponderance of the evidence that decedent's death was caused by work-related stress or any other employment related cause. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). In view of the foregoing findings of fact and Page 14 conclusions of law, all other issues of the case become moot. order THEREFORE, IT IS ORDERED: That no amounts are due from defendants to claimant. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript are charged to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of April, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. John L. Riccolo Attorney at Law STE 1140, The Center 425 2nd St. SE Cedar Rapids, Iowa 52401 Ms. Dorothy Kelley Attorney at Law 500 Liberty Bldg Des Moines, Iowa 50309 Page 1 1100 1107 1108.10 1401 1402.20 1402.30 1402.40 2202 2206 2902 2907 Filed April 16, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : LINDA GORDON, : : Claimant, : : vs. : : File No. 846902 HILLS BANK AND TRUST CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CONTINENTAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1100 1107 1108.10 1401 1402.20 1402.30 1402.40 2202 2206 2902 Claimant failed to prove that decedent's sudden cardiac dysrhythmia that resulted in immediate death, while watching an exciting basketball game at home with friends, was caused by job stress even though there was evidence of a number of factors that could have caused stress from his job; i.e. (1) the bank president was shot to death in his office; (2) the bank lost its liability insurance coverage for officers and directors; (3) decedent and the bank were sued for mishandling a trust account; and (4) claimant worked long hours and spent a lot of time at the bank. Four heart specialists gave interesting expert testimony on the cause of sudden cardiac death. 2907 Costs charged to claimant. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA GRAHAM, : : Claimant, : File No. 846903 : vs. : A P P E A L : SHELLER-GLOBE CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy, filed July 19, 1990, is affirmed and is adopted as the final agency action in this case with the following additional analysis and except as specified below: Defendant urges on appeal that claimant's prior compromise special case settlements bar recovery. The injury involved in this case is a new injury, in the form of an aggravation of a preexisting condition. A new injury is not barred by a prior compromise special case settlement. However, claimant's recovery is limited to the extent of disability caused by the aggravation of the condition that was the subject of the special case settlement. ORDER THEREFORE, it is ordered: That defendant pay the claimant temporary total disability benefits from June 4, 1987 through October 31, 1987 at the rate of two hundred twenty-nine and 95/100 dollars ($229.95) per week. That defendant pay the medical expenses listed in the prehearing report; namely, three hundred ten dollars ($310) for Dr. Crenshaw, and five hundred sixty-seven and 15/100 dollars ($567.15) for prescriptions. Claimant shall be reimbursed for any of these expenses actually paid by her. Otherwise, defendant shall pay the provider directly. That defendant pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. That defendant receive credit for previous payment of benefits under a nonoccupational group insurance plan, under Iowa Code section 85.38(2) as set forth in the prehearing report. That defendant pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendant pay the costs of this action including the costs of transcribing the hearing. Page 2 That defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road Keokuk, Iowa 52632-1066 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 503l2 1600 LPW Filed April 22, 1991 Clair R. Cramer before the iowa industrial commissioner ____________________________________________________________ : DONNA GRAHAM, : : Claimant, : File No. 846903 : vs. : A P P E A L : SHELLER-GLOBE CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1600 Defendants urged that claimant's petition was barred by a prior special case settlement. Held that claimant's injury was in the form of an aggravation of the injury that was the subject of the special case settlement, and constituted a separate injury and was therefore not barred by the settlement. However, claimant's recovery is limited to the extent of the aggravation. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA GRAHAM, : : Claimant, : : File No. 846903 vs. : : SHELLER-GLOBE CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Donna Graham, claimant, against Sheller-Globe Corporation, a self-insured employer, hereinafter referred to as SG, defendant, for workers' compensation benefits as a result of an alleged injury on January 8, 1987. On April 17, 1990, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulation which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employer-employee relationship existed between claimant and SG at the time of the injury. 2. Claimant is seeking temporary total disability or healing period benefits in this proceeding from June 4, 1987 through October 31, 1987, and defendant agrees that she was not working during this period of time. 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $229.95. 4. The medical bills submitted by claimant at hearing were fair and reasonable and causally connected to the medical condition upon which the claim is based but that the causal connection to any work injury remains an issue. issues The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and Page 2 in the course of her employment; II. The extent of claimant's entitlement to disability benefits; and, III. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evidence, the undersigned deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant places credibility at issue during cross-examination as to the nature and extent of the injury and disability. From her demeanor while testifying, claimant is found credible. Claimant has worked for SG for 22 years and continues to do so at the present time. At the time of the alleged injury, claimant was trimming covers and was required to carry two eight pound bundles 40 to 50 feet, approximately 250 to 300 times each day. Since her return to work in November 1987, claimant has been assigned to flocking or the process of gluing weather stripping used on motor vehicles. The change in jobs was due to the imposition of a five pound lifting restriction by claimant's family physician, Neville Q. Crenshaw, D.O., in October 1987. A 40 hour per week work restriction also imposed at the time has been lifted by Dr. Crenshaw and claimant frequently works in excess of 40 hours per week in her current job. Claimant's testimony with reference to these matters was uncontroverted. On or about January 8, 1987, while performing and lifting and carrying duties in the trimming job, claimant injured her cervical and thoracic spine and she began to experience severe pain from the mid and upper back across the shoulder and down to the elbow. The injury was due to aggravation of a preexisting degenerative disc disease of the thoracic and cervical spine. The injury was not an aggravation of a prior right shoulder problem stemming from two prior injuries - a nonwork-related injury in 1974 and a work injury in 1984. Claimant had previously settled a claim involving the 1984 work injury of the right shoulder in October 1986 wherein she received weekly benefits for a 10 percent permanent partial disability to the body as a whole. The above finding that the January 8, 1987 injury was not related to the prior right shoulder problems, even though some of the pain radiated across the shoulder, is based upon the views of a board certified orthopedic surgeon, James A. Gwaltney, M.D. Dr. Gwaltney treated claimant for both the 1984 and 1987 injuries. It was felt that as a treating physician, Dr. Gwaltney had more clinical knowledge of claimant's condition than Peter Wirtz, M.D., another orthopedic surgeon, who expressed views contrary to those of Dr. Gwaltney. As a result of the injury of January 8, 1987, claimant was absent from her job at SG from June 4, 1987 until October 31, 1987, upon the advice of her family physician. Following the Page 3 injury, claimant was initially treated by several physicians and chiropractors retained by SG who prescribed pain medication but did not recommend a temporary absence from work. Claimant then continued to experience pain from not only her prior chronic right shoulder problems from prior injuries but the problems stemming from the recent injury to the mid and upper back. Finally, claimant sought treatment from her family physician, Dr. Crenshaw, who took her off work and sent her into physical therapy at a pain clinic. The pain clinic treated both the ongoing right shoulder and the back pain in conjunction with chronic headaches. This treatment reduced the need for pain medication and reduced the headaches. Claimant was then released by Dr. Crenshaw to return to work in November 1987 with the restrictions previously discussed. Although the treatment by Dr. Crenshaw also involved pain from the prior right shoulder injury, the aggravation injury of January 8, 1987 remained a substantial factor which precipitated the need for treatment and the absence from work activity during the summer and fall of 1987. The claimant failed to show that the work injury of January 1987 was a cause of permanent impairment to the body as a whole or a loss of earning capacity. No physician in this case has opined that the aggravation injury caused permanent partial impairment. Although the five pound lifting restriction was first imposed after the January 1987 injury, Dr. Crenshaw did not opine that it was due to the January 1987 injury. Without such an opinion, it is just as likely that the five pound restriction was due to the prior right shoulder injury or due to the prior degenerative disc disease and that the January 1987 injury was only a temporary aggravation of prior existing problems. Claimant had mild thoracic mid and upper back problems in 1983 and again in 1984. It is clear from the written report of Dr. Crenshaw that he felt that such a lifting restriction was necessary to prevent further reinjury. Again, it is likely that Dr. Crenshaw felt that this restriction should have been imposed earlier which could have possibly avoided the January 1987 injury and resulting loss of work. Claimant is now back to work and has not suffered any loss of income as a result of the new work restriction or job transfer. Claimant's current employment appears stable and she expressed no difficulty with performing her current work. Her only difficulty expressed at the time of the hearing was with her nonwork-related activities. The medical expenses requested by claimant in the prehearing report are found causally connected to the work injury of January 8, 1987. conclusions of law I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. Page 4 In the case sub judice, claimant stated that she experienced pain symptoms after performing her work duties. The failure to identify an exact and the specific task she was doing did not defeat her claim as the onset of symptoms simply occurred gradually over time. A sudden traumatic event need not be shown to establish compensable injury. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant failed to show a causal connection by a preponderance of the evidence between the work injury and permanent partial impairment or loss of earning capacity. Although it was clear that the five pound work restriction is very limiting in the number of jobs she can perform, there has been no showing by claimant that the aggravation injury of January 8, 1987 was a cause of the restriction. It would appear likely that the claimant's prior existing shoulder and degenerative disc disease was more than likely the cause of the restriction. Although claimant failed to establish entitlement to permanent partial disability benefits, it was found that the injury of January 8, 1987 was a cause of a temporary absence from work. Under Iowa Code section 85.33(1), claimant is entitled to temporary total disability benefits from the first day of disability until claimant returns to work. Temporary total disability benefits will therefore be awarded accordingly. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is entitled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to only an order directing the responsible defendant to make such payments. See Krohn v. State, Page 5 420 N.W.2d 463 (Iowa 1988). In the case at bar, it was found that the requested expenses were causally connected to the work injury involved in this case. Therefore, these expenses will be awarded. order 1. Defendant shall pay the claimant temporary total disability benefits from June 4, 1987 through October 31, 1987 at the rate of two hundred twenty-nine and 95/100 dollars ($229.95) per week. 2. Defendant shall pay the medical expenses listed in the prehearing report; namely, three hundred ten dollars ($310) for Dr. Crenshaw, and five hundred sixty-seven and 15/100 dollars ($567.15) for prescriptions. Claimant shall be reimbursed for any of these expenses paid by her. Otherwise, defendant shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 3. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 4. Defendant shall receive credit for previous payment of benefits under a nonoccupational group insurance plan, under Iowa Code section 85.38(2) as set forth in the prehearing report, less tax deductions, if any, from those payments. 5. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 7. Defendant shall file activity reports upon payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of July, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr James P Hoffman Attorney at Law Middle Rd P O Box 1066 Keokuk IA 52632 Mr Harry W Dahl Attorney at Law Page 6 974 73rd St Ste 16 Des Moines IA 50312 5-1803 Filed July 19, 1990 Larry P. Walshire before the iowa industrial commissioner ____________________________________________________________ : DONNA GRAHAM, : : Claimant, : : File No. 846903 vs. : : SHELLER-G LOBE CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured : Defendant. : ___________________________________________________________ 5-1803 Casual connection and extent of disability issue nonprecedential. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LEWIS HALL, : : Claimant, : : File No. 846905 vs. : : A P P E A L DR. DARYL LARSON, d/b/a : HILL TOP PORK, : D E C I S I O N : Employer, : Uninsured, : Defendant. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 19, 1989 is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Defendant is again ordered to file a first report of injury as required by Iowa Code section 86.11 within twenty (20) days of the date of this decision. Signed and filed this ____ day of April, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Brian Anderson Attorney at Law 405 Tracy Street Audubon, Iowa 50025 Hill Top Pork c/o Dr. Daryl Larson Hwy 71 North P.O. Box 163 Audubon, Iowa 50025 CERTIFIED AND REGULAR MAIL 9998 WRM Filed April 22, 1991 Clair R. Cramer before the iowa industrial commissioner ____________________________________________________________ : LEWIS HALL, : : Claimant, : : File No. 846905 vs. : : A P P E A L DR. DARYL LARSON, d/b/a : HILL TOP PORK, : D E C I S I O N : Employer, : Uninsured, : Defendant. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed October 19, 1989. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEWIS HALL, Claimant, File No. 846905 DR. DARYL LARSON, d/b/a A R B I T R A T I O N HILL TOP PORK, D E C I S I O N Employer, Uninsured, F I L E D Defendant. OCT 19 1989 INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Lewis Hill, claimant, against Dr. Daryl Larson, d/b/a/ Hill Top Pork, employer and uninsured defendant, for benefits as the result of an alleged injury which occurred on July 8, 1986. A hearing was held in Council Bluffs, Iowa, on July 7, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Lewis Hall, claimant, Dan Murtaugh, claimant's former attorney, Dr. Daryl Larson, defendant employer, Timothy Van Cleve, supervisor, claimant's exhibits 1 through 4 and defendant's exhibits A and B. Defendant filed an attachment to the prehearing report which is in the nature of a prehearing brief. Claimant also filed an attachment to the prehearing report which is in the nature of a prehearing brief. Both parties filed posthearing briefs. The deputy ordered a transcript of the hearing. PREHEARING MATTER The prehearing report indicated that employer-employee relationship, failure to bring a timely claim under Iowa Code section 85.26 and failure to give timely notice under Iowa Code section 85.23 were to be issues in this case. These issues were not designated as hearing issues on the hearing assignment order that was prepared as a result of the prehearing conference. Defendant stated that he was not present for the prehearing conference, but defendant did admit that he had notice of the time and date of the prehearing conference and made no request for an alternate time and date. Therefore, it is determined that the foregoing issues are not hearing issues and determination of these issues will not be made in this decision. Issues not asserted at the time of the prehearing conference are waived. Presswood vs. Iowa Beef Processors, Inc., file number 735442 (Appeal Decision November 14, 1986). STIPULATIONS The parties stipulated to the following matters: That claimant's gross weekly earnings at the time of the injury were $175 per week, that claimant was single and entitled to one exemption at that time. That the provider of medical services or supplies would testify that the fees charged are fair and reasonable and that the treatment was for reasonable and necessary treatment for the alleged injury and defendant is not offering contrary evidence. That there is a causal connection of the expenses to treatment for the medical condition on which claimant bases his claim, but the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. That defendant claims no credit for benefits paid prior to hearing under either: (1) an employee nonoccupational group health plan or (2) as workers' compensation benefits. That there are no bifurcated claims. ISSUES The parties submitted that following issues for determination at the time of the hearing. Whether claimant sustained an injury on July 8, 1986, that arose out of and in the course of employment with employer. Whether the alleged injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits. Whether claimant is entitled to the payment of medical expenses. What is the proper rate of compensation in the event of an award of weekly benefits. SUMMARY OF THE EVIDENCE Claimant, age 45, started to work for employer on or about June 4, 1986, performing whatever needed to be done in a hog confinement unit. The last day of employment was on June 9, 1986, the day after the alleged injury. Claimant cared for the pigs. He cleaned and maintained the confinement facility. On July 8, 1986, claimant was washing out the farrowing units with formaldehyde mixed with water in a pressure washing unit. The coupling came lose and the solution struck claimant in the right side of his face. Claimant did not know how the coupling came loose (transcript page 45). He could not see, but found his way to where he could wash his eyes out with water. He then found and reported what happened to his foreman, Tim Van Cleve, who washed his eyes out some more. He finished out that day. His eyes hurt that night. On the following day, June 9, 1986, both eyes were still burning and he was experiencing difficulties in breathing, like shortness of breath. He couldn't get enough air. He asked Van Cleve to take him to the doctor at about 2:00 p.m. He had experienced shortness of breath in the past, after exertion like running, but on this day he experienced it without exertion. Claimant conceded that he smoked cigarettes. Van Cleve made two phone calls to employer and then elected to take claimant to see David G. Stilley, M.D. (tr. p. 70). Claimant did not have a doctor of his own (defendant's exhibit A, tr. pp. 23-32). Claimant testified that he reported both his eye and breathing problems to Dr. Stilley. The doctor medicated and patched his eyes and sent him home. That night claimant's breathing got worse. He called Dr. Stilley who put him in the hospital for two days for x-rays and tests. Claimant testified that he was told he had chemical pneumonia from formaldehyde. Employer denied claimant had chemical pneumonia, a disease, but asserted instead claimant only had chemical pneumonitis, and inflammation (ex. 3, p. 1; tr. pp. 46-50, 120, 122). Claimant said he was administered oxygen and something else at the hospital. When he left the hospital his breathing was alright. He has not experienced any shortness of breath since then. He serves as a volunteer fireman, which requires exertion, without difficulty. His vision cleared up in about a month, but his eyes were still bloodshot for a while. His eyes still matter. Claimant denied his eyes mattered prior to this injury. Dr. Stilley had claimant examined by an eye specialist. The eye specialist did nothing. Claimant assumed that he would just have to live with the mattering of the eyes (tr. pp. 47 & 90). Claimant is now employed by another employer pumping out hog confinement units (tr. pp. 31-36 & 74; def. ex. A). Claimant testified that Van Cleve came up to him after he got out of the hospital and said that employer had hired somebody else temporarily, but would consider letting claimant have a job if claimant would sign a statement that employer would not be responsible for future medical expenses (tr. pp. 35, 35, 71 & 72). Claimant did not sign a paper (tr. pp. 36 & 72). Claimant testified that he assumed that he had a job until Van Cleve notified him on August 18, 1986, that he would not be rehired (tr. p. 38; ex. 4, p. 7). By contrast, employer contended that it was a release of medical information that Van Cleve asked claimant to sign (tr. pp. 73, and 80-83). Claimant obtained other employment on August 23, 1986 (tr. p. 37). Claimant identified the bills in exhibit 3 as his medical expenses for this injury. No medical record is in evidence for the office visit to Dr. Stilley on July 8, 1986. The outpatient and emergency record for July 9, 1986, at 2200 hours, shows claimant was admitted to the hospital at that time. The nursing assessment (paraphrased) shows that yesterday afternoon claimant had formaldehyde sprayed into his face. He saw a doctor this afternoon. He encountered more respiratory difficulty at home at night. His eyes were reddened and were edematous. He had a rash on his chest. The physician assessment stated that the eye patches were removed. Lids and sclera inflamed. Decreased breath sounds. Expiratory wheezes at bases. Dr. Stilley diagnosed irritant pneumonitis and conjunctivitis. Dr. Stilley commented that claimant had much more shortness of breath than earlier that day and that he was more comfortable on oxygen (ex. 3, p. 3). Another nursing assessment on July 9, 1986, at 2315 hours states that claimant was sprayed in the face yesterday with formaldehyde. Today he has red, puffy and weeping eyes and rash on his chest and neck. This report further shows vision blurred due to swelling, a lot of dyspnea, frequent cough, chest tightness, unable to do much today due to shortness of breath, slight chest pain, very wheezy, some rales, respiration rate 32 with labored depth and quality, gait slightly unsteady and a papular rash on chest and neck (ex. B). The hospital admitting history records that claimant was sprayed in the eyes with formaldehyde and also inhaled formaldehyde. The doctor reported eye pain, skin rash and shortness of breath. Claimant denied any significant history of emphysema or other respiratory disease. Claimant was placed on oxygen for respiratory distress. The x-ray report was as follows: Chest x-ray remarkable for a large bleb in the left lower lung field as well as some significant interstitial fibrosis suggestive of previous heavy smoking history. However, it is unusual to see a bleb of this size in a person in his age group. Additionally the patient has what appears to be an interstitial infiltrate and/or fluid accumulation in the upper poles of his lungs. This is probably representing of the chemical pneumonitis. (ex. 3, p. 2, reverse side of sheet) Dr Stilley's admitting diagnosis was: ASSESSMENT: 1. Chemical pneumonitis. 2. Chemical conjunctivitis. 3. Probable significant underlying obstructive pulmonary disease with bleb formation. (ex. 3, p. 2, reverse side of sheet) Dr. Stilley's discharge diagnosis was: FINAL DIAGNOSIS: Chemical pneumonitis and conjunctivitis [sic] secondary to Formaldehyde exposure. Severe obstructive pulmonary disease with a large bulla in the left lower chest. (ex. 3, p. 1) He said that claimant should be considered totally disabled until his recheck on July 15 or 16, 1986 (ex. 3, p. 1). Dr. Stilley's office notes on July 11, 1986, note that he refused to give information to employer without a release of information signed by claimant. The office note on July 16, 1986, as well as a return to work slip dated July 16, 1986, show that claimant could return to work light duty on July 17, 1987, and he could return to work on full duty with no restriction after July 24, 1986(ex. 3, p. 4; ex. 1; tr. p. 87). Dr. Stilley's notes show that he saw claimant one more time on August 18, 1986, for some eye inflammation. He observed a large sty in the inner canthus of the right upper lid and an internal sty of the right lower lid. He prescribed warm compresses and medication (ex. 3, p. 4). X-rays on both July 9, 1986 and July 16, 1986, disclosed a large bolus of bullus in the left base and compression of the adjacent lung. These x-rays also showed pleural reactive change at the left costo phrenic angle which may be long standing in nature (ex. 3, pp. 6 & 7). Defendant contends he was denied a medical release of information (patient waver) so that he could obtain medical information from Dr. Stilley. There is a patient's waiver in evidence which is signed by claimant on July 17, 1986, authorizing that information be furnished to his then attorney, Daniel J. Murtaugh (ex. 3, p. 8). Dr. Stilley had refused to answer questions of employer without a patient waiver (ex. 3, p. 4). Employer also contended that claimant would not disclose whether he was making a workers' compensation claim or not. Claimant contended that employer refused to take him back to work before signing a release of future medical benefits. Claimant denied he withheld medical information. Claimant testified that Dr. Stilley advised him to get an attorney because employer was trying to finagle around and not take care of this problem. Claimant consulted attorney Dan Murtaugh (tr. pp. 39 & 81). Claimant said his medical expense creditors were charging him interest on his unpaid medical expenses (tr. p. 40). Claimant contended that Dr. Larson indicated that he did have workers' compensation coverage for this incident, but refused to disclose the name of the carrier to his attorney Murtaugh or his attorney Anderson. Claimant contends he was wrongfully discharged because he was injured on the job and filed a workers' compensation claim (tr. p. 110). Defendant contended that claimant lied in his interrogatories about prior problems with his breathing and that part of the radiologist's reports had been altered to cover up the radiologist's clinical interpretations (tr. pp. 50-70, 89 and 127-130). Employer was allowed to introduce defendant's exhibit B as rebuttal evidence to show that claimant told a nurse at the time of his admission to the hospital on July 9, 1986, that he had pneumonia a year ago (tr. pp. 61 & 67). Dan Murtaugh testified he represented claimant in 1986 until he became a Ph.D. candidate at the University of Kansas in the English department. He said employer refused to claim three certified letters giving notice of the injury. He finally had the sheriff personally serve employer on the ninetieth day (tr. pp. 96 & 97). He denied that employer was denied medical records by claimant (tr. p. 97). Employer indicated he was a doctor, he disputed Dr. Stilley and claimed he knew more than Dr. Stilley concerning the effects of formaldehyde (tr. pp. 98-100 & 128). Employer indicated he had a workers' compensation carrier, but refused to disclose the name of the carrier (tr. pp. 98 & 99). Murtaugh testified that all he and claimant wanted was to get the medical bills paid (tr. pp. 95 & 111). Tim Van Cleve testified that he was manager of Hill Top Pork at the time of this injury. He was personally responsible for overseeing the work of claimant at that time. Prior to the injury he thought claimant's shortness of breath was only normal (tr. pp. 146 & 147). He verified he was in the vicinity when claimant was sprayed in the face with formaldehyde from the coupling to the power washer. He saw claimant come staggering down the walkway. There is a lot of pressure in those lines. He took claimant to Dr. Stilley on his own initiative. Claimant was in respiratory distress (tr. pp. 147-151). Van Cleve said employer wanted him to get a medical release rather than a liability release because employer was concerned about claimant's sensitivity to formaldehyde (tr. pp. 152-155, 157). Dr. Daryl Larson, employer, testified that there is no evidence of chemical pneumonia and that the x-ray reports do not support chemical pneumonitis. He said he tried to find out if this was a workers' compensation claim or not. He denied he tried to get a release of future medical expenses, but wanted a release to obtain medical information. He denied that he attempted to control the treatment of claimant's condition. He asserted that claimant and Dr. Stilley tried to cover up claimant's prior respiratory problems. He denied Murtaugh tried to settle this matter. He denied claimant had any permanent disability from mattering of the eyes. He found it unlikely that claimant maintained a day-to-day calendar of this injury (tr. pp. 119-134; ex. 4). There are a number of medical bills. Some of them appear two or three times. The bills which appear to apply to this injury, with the duplication eliminated, are as follows: David G. Stilley, M.D. $263.50 Myrtue Memorial Hospital 758.00 Myrtue Memorial Hospital (x-ray 7-16-86) 37.50 Nebraska-Iowa Radiology (x-ray 7-16-86) 24.00 TOTAL $1,083.00 (ex. 2) Claimant did not submit a bill for the unknown traveling eye physician that visits Myrtue Hospital and examined his eyes. He claimed that he paid this physician himself by his personal check, but the check was not introduced into evidence (tr. p. 75). Claimant verified by his testimony that the charges in exhibit 2, which total $1,083, are the bills that he incurred for this injury (tr. p. 33). Claimant admitted he was asserting a claim for 5 percent permanent disability, but could not explain what evidence supported this claim (tr. pp. 75 & 76). Claimant contended he also needed a new prescription for eye glasses as a result of this injury (tr. pp. 90-92). Murtaugh was initially subpoenaed by employer for this hearing. The hearing was continued at the request of the employer. Employer did not revoke or terminate the subpoena. Murtaugh appeared at the rescheduled hearing. Employer did not notify him to come to the rescheduled hearing and did not call him as a witness. Since he was there, claimant called Murtaugh as a witness. Employer obtained information from Murtaugh by way of cross-examination (tr. pp. 140-146). As to rate, the parties stipulated that claimant earned $175 per week, was single and entitled to one income tax exemption. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 8, 1986, 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 claimant has the burden of proving by a preponderance of the evidence that the injury of July 8, 1986, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 691 (1960), and cases cited. Claimant did sustain the burden of proof by a preponderance of the evidence that he sustained an injury on July 8, 1986, which arose out of and in the course of his employment with employer. Claimant related that formaldehyde diluted with water under pressure struck him in the face. It affected his vision and breathing. Van Cleve saw claimant staggering out of the building, washed his eyes again, told him to rest, and took him to Dr. Stilley on the following day for these same symptoms. Claimant related the same incident to Dr. Stilley who accepted this history as true and treated claimant on this basis. The hospital records confirm a physical injury in July as described by claimant. Even though there is evidence that claimant has had prior respiratory problems, there is no evidence that any prior problems were treated at this time. The entire treatment at this time was for eye problems and breathing problems caused in this formaldehyde accident. Defendant did not introduce any medical evidence or other evidence to show that claimant's current injury to his eyes and lungs were from any cause other than the accident that occurred at employer's place of employment while performing work for employer on July 8, 1986. Claimant's prior respiratory problems were not causing any disability or medical problems on the date of this injury. He had worked since June 4, 1986, without any problems. Claimant sustained the burden of proof by a preponderance of the evidence that the injury was the cause of temporary disability. Dr. Stilley said the injury was workers' compensation related (ex. 3, p. 4). Dr. Stilley said on the discharge diagnosis dictated on July 21, 1986, chemical pneumonitis and conjunctivitis secondary to formaldehyde exposure (ex. 3, p. 1). Dr. Stilley took claimant off work beginning on July 10, 1986 through July 24, 1986. He was allowed to return to work on July 25, 1986, without any restrictions. He could have returned to work light duty on July 17, 1986. However, employer did not provide him with light duty work at that time. Claimant further testified that there was no light duty in the job he performed. Employer never did take claimant back to work. Claimant was discharged on August 18, 1986. Claimant is entitled to temporary disability benefits from July 10, 1986 to July 25, 1986, a period of two weeks and two days [Iowa Code section 85.33(1)]. Claimant was paid wages for a portion of this period and defendant should be entitled to a credit. However, defendant did not introduce any evidence on how much claimant was paid or for what dates claimant was paid. Claimant did not present precise evidence on how much he was paid. On the prehearing report at paragraph nine, it shows that claimant received sick pay or disability income to July 11 or 15 and that defendant is entitled to a credit for the amount paid. Claimant established an injury, causation and entitlement to temporary disability. The burden of proof to prove a credit is upon defendant. Since defendant did not prove the amount of his entitlement to a credit for wages continued after the injury, the most defendant can establish is that claimant received wages through July 11, 1986, the shortest period of time that claimant was willing to stipulate. It is determined that defendant is entitled to a credit from July 10, 1986, to July 11, 1986, a period of one day. Claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability. Dr. Stilley never discussed permanent injury or impairment or even mentioned it. He was never asked point blank whether claimant sustained permanent impairment as a result of this injury. There is no other medical evidence of a permanent impairment or disability. The only evidence of a permanent injury is that claimant testified that his eyes still matter. He indicated it could affect his driving. However, he gave no testimony to establish a permanent disability from performing the work that he has always been able to perform before the injury. He immediately found other employment and is now performing a job doing similar work for another employer. He testified that his breathing has been alright ever since he was discharged from the hospital. His eyes were bloodshot for a while, but cleared up. He saw a specialist for his eyes, but the specialist did nothing for him. There is no evidence of a permanent impairment from this unknown specialist to establish a permanent disability. Claimant's testimony about the continued mattering of his eyes did not indicate that it was a problem of any significance. Therefore, it is determined that claimant did not sustain the burden of proof that the injury was the cause of permanent disability. Accordingly, he is not entitled to permanent disability benefits. Claimant did establish that he is entitled to the payment of his medical bills for this injury in the amount of $1,083, as set forth in the summary of the evidence. Defendant is ordered to pay claimant for these bills. Claimant sustained the burden of proof by a preponderance of the evidence that he is entitled to be reimbursed for the eye examination that he paid for. Claimant testified that Dr. Stilley referred him to any eye specialist that travels to the local hospital because of this eye injury. Referral by an authorized physician to another physician is also authorized care. Defendant stipulated in the prehearing order that providers of medical services would testify that their charges were reasonable and that the charges were for reasonable and necessary medical treatment. Causal connection is provided by the office note of August 18, 1986, of Dr. Stilley. He said that he intended to refer claimant to an ophthalmology clinic for his continued eye complaints from this injury (ex. 3, p. 4). Claimant did not sustain the burden of proof by a preponderance of the evidence that he is entitled to a new eyeglasses prescription as a result of this injury. Claimant's testimony that an eye physician once told him that he would never need another new prescription for glasses is not acceptable to prove that the injury here is the cause for a new prescription. Claimant's entitlement would depend on a medical opinion. Claimant submitted no medical evidence in support of his contention. A subpoena once issued continues in effect and applies to a continuation of a hearing. Subpoenas generally continue until revoked or terminated. Defendant did not revoke or terminate the subpoena. Therefore, defendant is liable for the witness fee and mileage of Dan Murtaugh to attend the hearing. The many other points of contention between the parties and attorneys about who said or did or did not do what, when where and how need not be resolved in order to determine the workers' compensation issues in this case. The Guide to Iowa Workers' Compensation Claim Handling, dated July 1, 1986, shows that the proper rate of compensation for a single person with one exemption, earning $175 per week, is $133.06 per week. FINDING OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made. That claimant was employed by employer from June 4, 1986 until July 10, 1986. That claimant sustained an injury arising out of and in the course of employment on July 8, 1986, when he was sprayed in the face with water diluted formaldehyde by a high pressure hose which caused eye/vision problems and respiratory problems. That Dr. Stilley said that claimant's injury was workers' compensation related. That Dr. Stilley said that claimant's chemical pneumonitis and conjunctivitis was secondary to formaldehyde exposure. That Dr. Stilley, the treating physician, took claimant off work from July 10, 1986 to July 25, 1986. That claimant was authorized to work light duty from July 17, 1986 to July 25, 1986, but employer did not provide claimant with light duty during this period of time. That there is no medical evidence of a permanent injury, diminished vision or of any other nature from this injury due to mattering of the eyes. That claimant incurred $1,083 in medical expenses as shown above plus interest charges imposed by creditors and also another amount for an examination by an eye specialist to whom claimant was referred by Dr. Stilley. That defendant subpoenaed a witness, Dan Murtaugh, to testify at the hearing, the hearing was continued, but defendant did not terminate or revoke the subpoena. That claimant earned $175 per week, was single and entitled to one exemption. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made. That claimant sustained an injury on July 8, 1986, which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability from July 10, 1986 to July 25, 1986. That claimant is entitled to temporary total disability benefits for that period of time. That defendant is entitled to a credit for wages paid to claimant on July 10, 1986. That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability. That claimant is not entitled to permanent disability benefits. That the proper rate of compensation is $113.06 per week. That claimant is entitled to medical expenses in the amount of $1,083 and also reimbursement for the amount paid to the eye specialist. That claimant is not entitled to new prescription glasses. That defendant is liable for the witness fee and mileage expense for the witness he subpoenaed and did not revoke or terminate the subpoena. ORDER THEREFORE, IT IS ORDERED: That defendant file a first report of injury within 10 days of the signing and filing of this order. That defendant pay to claimant two weeks and two days (2.286 weeks) of workers' compensation benefits at the rate of one hundred thirteen and 06/100 dollars ($113.06) per week in the total amount of two hundred fifty-eight and 46/100 dollars ($258.46) commencing on July 10, 1986. That defendant is entitled to a credit in the amount of sixteen and 15/100 dollars ($16.15) for one day for wages paid during this period on July 10, 1986. That the remaining benefits be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant pay to claimant one thousand eight-three dollars ($1,083) in medical expenses as shown above plus any interest charges because of late payment and also reimburse claimant the amount he paid to the eye physician. That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. The costs include the attendance of the court reporter at hearing, the cost of the transcript, sheriff's fee of twelve dollars ($12), the witness and mileage fee of Dan Murtaugh, who was subpoenaed by the defendant and not revoked, and any other costs allowed by the above rule or the Code of Iowa. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 19th day of October, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Brian Anderson Attorney at Law 405 Tracy Street Audubon, IA 50025 Hill Top Pork c/o Dr. Daryl Larson RR 2 Box 94A Carroll, IA 51401 Certified and Regular Mail 51106; 51108.30; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 52205; 51801; 51803; 52501; 52700; Filed October 19, 1989 Walter R. McManus,Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEWIS HALL Claimant, File No. 846905 vs. A R B I T R A T I O N DR. DARYL LARSON, d/b/a D E C I S I O N HILL TOP PORK, Employer, Uninsured, Defendant. 51106; 51108.30; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 52205 Claimant proved an injury arising out of and in the course of employment of pneumonitis and conjunctivitis from being sprayed in the face with dilute formaldehyde. The only doctor said it was the cause of claimant's temporary disability for two weeks and two days. 51801; 51803 Claimant awarded temporary total disability benefits. Claimant did not prove permanent disability and was denied permanent disability benefits. 52501; 52700 Claimant awarded medical benefits.