BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE "BUD" MILLER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No.  853647
 
         WOODWARD STATE HOSPITAL
 
         SCHOOL,
 
                                                 A P P E A L
 
              Employer,
 
                                               D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              The undersigned has been delegated authority pursuant to 
 
         Iowa Code section 86.3 to issue the final agency decision in this 
 
         case.  Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on August 7, 1987.  Claimant cross-appeals.  The record on 
 
         appeal consists of the transcript of the arbitration proceeding; 
 
         claimant's exhibits A through J; and defendants' exhibits 1 
 
         through 8.  Both parties filed briefs on appeal.  Defendants 
 
         filed a reply brief.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              I.  The deputy erred in holding that the claimant's
 
              injury arose out of his employment.
 
              
 
              II.  The deputy erred in declaring that any industrial
 
              disability suffered by the claimant was attributable
 
              solely to the first heart attack of August 7, 1987.
 
              
 
              III.  The deputy erred in finding that the claimant had
 
              suffered a 60 percent loss of earning capacity.
 
              
 
              IV.  The deputy erred in refusing to recuse himself
 
              from hearing and deciding this case based on a conflict
 
              of interests.
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 2
 
         
 
         
 
              Claimant states the following issue on cross-appeal: 
 
         "Whether claimant is permanently totally disabled."
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence, with the additional 
 
         citations of law contained in the analysis below.
 
         
 
                       REVIEW OF THE EVIDENCE AND ANALYSIS
 
         
 
              Defendants have raised as an issue on appeal the denial of 
 
         their motion for the hearing officer to recuse himself from 
 
         hearing the case.  The deputy industrial commissioner assigned to 
 
         hear the case was Larry P. Walshire.  Mr. Walshire is a member of 
 
         Local 3450, Iowa Council 61, American Federation of State, County 
 
         and Municipal Employees (AFSCME). AFSCME is a union representing 
 
         state employees in collective bargaining matters.  Mr. Walshire 
 
         serves as President of Local 3450, and has been involved on 
 
         behalf of state employees in grievance proceedings as well as 
 
         wage negotiations.  The claimant appearing before Deputy Walshire 
 
         in this case is a state employee and a member of AFSCME, and one 
 
         of the defendants is the State of Iowa, the governmental entity 
 
         Mr. Walshire bargains with as a union official.
 
         
 
              Defendants filed a motion seeking a recusal of Deputy 
 
         Walshire from hearing the case.  Defendants pointed out Iowa 
 
         Administrative Code section 343-4.38 (17A), which provides:
 
         
 
                 Any individuals presiding over contested cases
 
              before the industrial commissioner shall disqualify
 
              themselves from conducting a hearing on the merits or
 
              deciding any contested case in which such individual
 
              has substantial prior contact or interest or is so
 
              related to or connected with any party or attorney
 
              thereto so as to give, in the opinion of the person
 
              presiding, even the appearance of impropriety for such
 
              individual to conduct such hearing or decide such case.
 
         
 
              Rule 4.38 was cited by defendants in their motion for 
 
         recusal.  However, 4.38 deals with self-disqualification by the 
 
         hearing officer.  By its language, the rule is invoked only when 
 
         the deputy subjectively concludes that an appearance of 
 
         impropriety exists.  Deputy Walshire concluded that no appearance 
 
         of impropriety existed.
 
         
 
              The actual nature of the defendants' motion for recusal was 
 
         a claim of bias.  As a motion for involuntary disqualification, 
 
         defendants' motion should not have been brought under rule  4.38, 
 
         but under Iowa Code section 17A.17(4).  That section states:
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 3
 
         
 
         
 
                 A party to a contested case proceeding may file a
 
              timely and sufficient affidavit asserting
 
              disqualification according to the provisions of
 
              subsection 3, or asserting personal bias of an
 
              individual participating in the making of any proposed
 
              or final decision in that case.  The agency shall
 
              determine the matter as part of the record.in the case.
 
              When an agency in these circumstances makes such a
 
              determination with respect to an agency member, that
 
              determination shall be subject to de novo judicial
 
              review in any subsequent review proceeding of the case.
 
         
 
              Iowa Code 17A.17(4) also refers to a timely affidavit 
 
         alleging grounds for disqualification.  A motion for recusal 
 
         filed on the morning of the scheduled hearing cannot be viewed as 
 
         timely, especially in light of the requirement of 17A.17(4) that 
 
         the agency, presumably someone other than the deputy who is 
 
         alleged to be biased, determine the matter.  Deputy Walshire's 
 
         union position and activities were known to the defendants well 
 
         in advance of the date of the hearing.  Regardless of the merits 
 
         of the motion for recusal based on Deputy Walshire's union 
 
         position, it was not properly raised in this instance, and will 
 
         not be addressed on appeal.
 
         
 
              However, on appeal the defendants also raise the issue of 
 
         Deputy Walshire's personal bias as a ground for disqualification, 
 
         separate and distinct from any possible bias or impropriety by 
 
         virtue of his union position and activities.  The basis of the 
 
         allegation of personal bias stems from comments made by Deputy 
 
         Walshire at the time of the hearing, and in his written ruling on 
 
         the motion for recusal, which was provided to the defendants at 
 
         the time of the hearing.  Since the basis of the claim of 
 
         personal bias first arose at the hearing, there was no 
 
         opportunity for the defendants to seek a determination by the 
 
         agency on grounds for disqualification under 17A.17(4) prior to 
 
         the hearing.  This appeal is, in effect, the first opportunity 
 
         for the question of personal bias to be addressed by the agency. 
 
         Thus, the personal bias question will be dealt with in this 
 
         decision.
 
         
 
              Bias has been defined as "advance, preconceived mental 
 
         attitude or disposition, toward a party to a controversy, of such 
 
         weight and nature as to materially impair or destroy that 
 
         impartiality essential to a fair hearing".  Cedar Rapids Steel 
 
         Transp. v. Iowa State Com. Com'n, 160 N.W.2d 825 (Iowa 1968). 
 
         After receiving the motion for recusal based on his union 
 
         activities, the following conversation between Deputy Walshire 
 
         and the parties took place on the record:
 
         
 
                 The hearing commences on October 14, 1988.  At the
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              time and place previously set by order of the deputy
 
              commissioner who handled the last prehearing
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 4
 
         
 
         
 
              conference.  Claimant appears at this hearing in person
 
              with his attorney, Joseph Bauer.  The defendant appears
 
              by and through its attorney, Assistant Attorney General
 
              Eleanor Lynn.  At this time I appoint Susan Peterson as
 
              the official shorthand reporter of the proceeding and
 
              as custodian of her notes of this proceeding.
 
              
 
                 It is my understanding that the State has a motion
 
              dealing with my hearing this case.  And I'll turn it
 
              over to the State at this time to make whatever records
 
              it wishes to make.
 
              
 
                 Ms. Lynn: I would like, at this time, to make a
 
              motion for this hearing officer to recluse (sic)
 
              himself in this matter in.view of the hearing officer's
 
              involvement in AFSCME and president of the local unit
 
              of AFSCME and chairman of the procedures of the fiscal
 
              bargaining unit negotiating team.  My understanding
 
              through Answers to Interrogatories and answers in
 
              depositions in this matter is that the claimant is
 
              dues-paying member of AFSCME.  The combination of those
 
              factors calls into question the impartiality of the
 
              hearing officer or gives at least the appearance of
 
              impropriety due to the fiduciary duty of the hearing
 
              officer to AFSCME members.
 
              
 
                 I would like to base this motion on Iowa
 
              Administrative code 343-4.38 as well as Canon 2 and
 
              Canon 5 of the Code of Judicial Conduct and any and all
 
              other matters in case law cited in the brief of
 
              Twaddle, T-w-a-d-d-l-e, versus Glenwood State Hospital
 
              School, File Number 529223.
 
              
 
                 Deputy Commissioner Walshire: Mr. Miller, would you
 
              raise your right hand to be sworn?
 
              
 
                 Laurence D. Miller, called as a witness, having been
 
              first duly sworn, testified as follows:
 
              
 
                 Examination by Deputy Commissioner Walshire:
 
              
 
              Q.  Mr. Miller, are you indeed a member of AFSCME,
 
              which is a labor union within the state of Iowa?
 
              
 
              A.  Yes, I am.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              Q.  And what bargaining unit are you in?
 
              
 
              A.  Local 299.
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 5
 
         
 
              Q.  You're in Local 299, which is a local limited to
 
              the geographical area of Woodward State Hospital, is
 
              that correct?
 
              
 
              A.  Right.
 
              
 
              Q.  And the bargaining unit you're in is a technical
 
              bargaining unit in your classification?
 
              
 
              A.  Yes, it is.
 
              
 
              Q.  You are not a professional fiscal and staff
 
              
 
              A.  No.
 
              
 
              Q.  -- employee?  Okay.  And you're not in a local
 
              called 3450 which I am president of which is a local
 
              consisting of technical and professionals in the
 
              capitol complex?
 
              
 
              A.  No, I'm not.
 
              
 
                 Deputy Commissioner Walshire:  In light of those
 
              answers to the questions, I will have to deny your
 
              motion.  I am not in any leadership capacity over this
 
              individual, never have been, and specifically have
 
              issued a written ruling in the past on this very same
 
              motion.  And I will hand this out to the parties at the
 
              present time as my ruling.  Mr. Bauer, here's your
 
              copy.  And, State, here's your copy.
 
              
 
                 Mr. Bauer:  Thank you, Your Honor.
 
              
 
                 Ms. Lynn:  Thank you.
 
              
 
                 Deputy Commissioner Walshire:  I think it fully sets
 
              out the reasons why I feel fully able to hear this
 
              case, and if there is any impropriety at all in the
 
              system, it's that management has the last word in this
 
              agency, not an AFSCME member.  That is, my decisions
 
              are appealed de novo to my industrial commissioner, who
 
              is a member of the management team and appointed and
 
              essentially serves at the pleasure of the governor even
 
              though it is for a term, but --
 
              
 
                 Mr. Bauer:  Can I add something?
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 Deputy commissioner Walshire:  Why, you go ahead.
 
              
 
                 Mr. Bauer:  I don't know what this has bearing on
 
              legally, but I guess my response to the motion -- I
 
              don't know what your ruling's going to be, but my
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 6
 
         
 
         
 
              response to the motion is that I incorporated all  those
 
              arguments which you have set forth in your ruling.
 
              
 
                 As a sidelight, I guess I don't know whether the
 
              attorney general himself is involved in the decision to
 
              do this, but it would seem at least as a prospect
 
              absolutely that a person who is normally a Democrat
 
              running for governor involved in questioning union
 
              activity makes an interesting observation as to what
 
              his motivations may be.
 
              
 
                 Ms. Lynn: Yeah, I'm going to move to strike that in
 
              view of the fact that you've already ruled on the
 
              motion.
 
              
 
                 Deputy Commissioner Walshire:  Well, everything will
 
              be a part of the record.  If I move to strike it, it
 
              will be part of the record.
 
              
 
                 Mr. Bauer: I profess my remarks -- I don't know if
 
              they have anything to do legally.  I question whether
 
              first of all it's any -- it has any valid meaning here
 
              anyway, but --
 
              
 
                 Deputy Commissioner Walshire: I'd also like  to  --
 
              for the record -- that it's rather interesting  that
 
              this motion occurs.  I've been involved in union
 
              activities for the last four years, heavily involved in
 
              them, acting in a leadership capacity and been a member
 
              and officer of the local for over two years.  It was
 
              only after I issued an adverse decision against the
 
              state attorney general's office imposing punitive
 
              damages upon the State for unreasonable denial of a
 
              claim in March that I started receiving these
 
              reclusal (sic) orders or requests. I'm -- I hope this
 
              is not retaliation for that decision.  But I can only
 
              say that it never happened before that decision, and
 
              it's happened consistently beginning in April soon
 
              after this decision occurred.
 
              
 
                 Ms. Lynn: Your Honor -- I'm sorry.  I thought you
 
              were done.
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
                 Deputy Commissioner Walshire: I would ask the
 
              attorney general's office to consider its own ethics in
 
              this matter.  Enough said.
 
              
 
                 Ms. Lynn: May I state, for the record, Your Honor,
 
              that I was present at the staff meeting where this
 
              issue was discussed and the particular decision that
 
              you're referring to wherein any sanctions may have been
 
              ordered was never, never brought up at that meeting in
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 7
 
         
 
         
 
              any way in any context.  I believe that the matter
 
              turned more on -- I'm not sure when you even became
 
              president of the local chapter, but it was at that time
 
              it became known at least.
 
              
 
                 Deputy Commissioner Walshire:  It's also interesting
 
              in observations is that our deputy commissioners who
 
              are a little more conservative in their views are
 
              officers of my local and are not asked to
 
              recluse (sic) themselves from any involvement in State
 
              cases.
 
              
 
                 Ms. Lynn:  I don't know who the other officers are,
 
              Your Honor.
 
              
 
                 Deputy Commissioner Walshire:  That probably wasn't
 
              discussed either, was it?
 
              
 
                 Ms. Lynn:  No.  I know of at least one other hearing
 
              officer that was discussed in terms of his functions in
 
              the union, but I don't know of others beyond the two of
 
              you.
 
              
 
                 Deputy Commissioner Walshire:  You wouldn't bother
 
              to explain why you're limiting your asking to just two
 
              individuals in this office?
 
              
 
                 Ms. Lynn:  It was based within the functions in the
 
              union.  There was a discussion as to whether mere
 
              membership in AFSCME would be enough to request a
 
              reclusion.  It was felt that mere membership would not.
 
              
 
                 Deputy Commissioner Walshire:  Due to the fact that
 
              you asked me to represent -- some administrative law
 
              judges and all the agencies at the capitol complex are
 
              represented by my local.  All administrative law
 
              judges, not just a few, and many of those are members
 
              and some are officers of my local, yet no
 
              reclusal (sic) requests are made to those in which the
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              State is a part in every one of those cases.
 
              
 
                 Ms. Lynn:  I can assure Your Honor, there is nothing
 
              personal in this, especially on my part.
 
              
 
                 Deputy Commissioner Walshire:  I find it hard to
 
              believe that.  Let's move on.  Again my decision is de
 
              novo to my commissioner, and if there's any
 
              impropriety, it will be taken care of in any appeal
 
              process, I assume.
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 8
 
         
 
         
 
              In his written ruling on the motion, Deputy Walshire stated:
 
         
 
                 The undersigned hopes that the recusal request was
 
              not motivated by retaliation for any prior proposed
 
              decision or a desire to influence the undersigned's
 
              proposed decision in this or any other case.  However,
 
              even if made with innocent intentions, a recusal
 
              request adversely affects the decision making process
 
              and should not be frivolously advanced.  After receipt
 
              of such a request, a decision maker's impartiality has
 
              been maligned whether by design or not....
 
              
 
                 Decision makers in this understaffed agency have
 
              enough of a burden to bare (sic) and do not need
 
              additional, unnecessary pressures.  The staff of the
 
              attorney general's office in its zealous attempt to
 
              point out alleged ethical violations of deputy
 
              commissioners appears to have overlooked a few ethical
 
              considerations themselves.
 
         
 
              Deputy Walshire then recited Iowa Code of Professional 
 
         Responsibility Disciplinary Rule DR7-102(A), dealing with 
 
         asserting a position merely to harass or maliciously injure 
 
         another, and DR8-102(B), dealing with knowingly making false 
 
         accusations against a judge or other adjudicatory officer.
 
         
 
              Clearly, such comments show that a personal animosity toward 
 
         the assistant attorney general presenting the recusal motion and 
 
         toward the state of Iowa existed in the deputy's mind.  A reading 
 
         of the transcript and the written ruling would leave no doubt 
 
         that, prior to any evidence being presented, the state of Iowa 
 
         was not enjoying its right to have the matter decided by an 
 
         impartial and unbiased decision maker.  Accusations of unethical 
 
         behavior, of conspiracy to pressure a particular decision result, 
 
         and of judge "harassment" indicate bias.  The deputy's verbal 
 
         comments that he "doubted" the motivation behind the filing of 
 
         the recusal motion, coupled with the statement in the written 
 
         ruling that the mere filing of the motion to recuse was regarded 
 
         as maligning his impartiality, also indicate bias.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is therefore concluded that Deputy Walshire displayed 
 
         personal bias towards the defendants on the date of the hearing, 
 
         and should have been disqualified from hearing the case.  The 
 
         case should have been reassigned to another deputy who did not 
 
         display such bias.  However, the timing of the display of bias 
 
         was such that the hearing was conducted by Deputy Walshire 
 
         without a determination of disqualification by the agency as 
 
         required by Iowa Code 17A.17(4).
 
         
 
              The arbitration decision itself is, by statute, reviewed de 
 
         novo on appeal.  Initially, it is noted that Deputy Walshire, 
 
         both as part of his written ruling on the motion to recuse and in
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 9
 
         
 
         
 
         his verbal comments at the hearing, noted that any impropriety in 
 
         his presiding over the hearing could be corrected on de novo 
 
         appeal to the Industrial Commissioner.  However, any party 
 
         appearing before a judicial officer, whether the officer is a 
 
         district court judge or an administrative law judge, is entitled 
 
         to due process under both the U. S. Constitution and the Iowa 
 
         Constitution.  In that decision makers in judicial proceedings 
 
         adjudicate the rights and responsibilities of citizens and 
 
         entities in our society with great importance and far reaching 
 
         effects for the parties, it is essential that all parties to 
 
         litigation can rest assured that they enter the courtroom or 
 
         hearing room with an impartial trier of fact presiding.  To say 
 
         that any impartiality or lack of due process is not important 
 
         because it can be corrected later on appeal indicates a 
 
         misunderstanding of the very nature of due process.  Justice 
 
         delayed is justice denied.  If a party must undergo the expense, 
 
         the uncertainty, and the delay of an appeal to obtain the due 
 
         process that the party was entitled to at the first level of 
 
         adjudication, then our system is not fulfilling its obligation.  
 
         If a party is aggrieved at the first level of adjudication by a 
 
         biased hearing officer and cannot afford to pursue an appeal, the 
 
         denial of due process would never be addressed.  A party is 
 
         entitled to due process at all levels of the adjudication 
 
         process, not just at the appellate level.  It is therefore 
 
         inappropriate to excuse bias by relying on de novo appellate 
 
         review to correct the bias.
 
         
 
              The deputy's decision will now be reviewed de novo.  
 
         Claimant, 43 years old, with a high school education and 2 and 
 
         1/2 years commercial art institute training, was employed by 
 
         Woodward State Hospital School as a resident treatment worker, 
 
         where his duties included the care and supervision of retarded 
 
         persons and custodial duties.  Claimant was working the 10:45 
 
         p.m. to 6:00 a.m. shift on August 7, 1987, when he experienced 
 
         stomach discomfort and began to vomit blood at about 1:00  a.m.. 
 
         Claimant testified he thought he was experiencing indigestion.  
 
         Claimant had a history of morning nausea, and had had a heart 
 
         stress test administered to him three days before by his 
 
         physician, with a result of no abnormality.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A co-worker called claimant's supervisor and informed her of 
 
         claimant's illness.  Claimant decided to continue working, and 
 
         later washed some laundry barrels.  Claimant testified that after 
 
         this activity he began to experience chest pains.  Claimant's 
 
         supervisor was called two more times and on the third call the 
 
         supervisor told claimant he should leave work as soon as a 
 
         replacement arrived.  There was testimony that the hospital was 
 
         overstaffed that night and a replacement was readily  available.  
 
         However, the arrival of the replacement took 20 minutes during 
 
         which time claimant continued to work by folding clothes.
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 10
 
         
 
         
 
              Claimant left work at approximately 3:00 a.m., and began to 
 
         drive home, which was 17 miles away.  Claimant testified that 
 
         during this trip he had to stop several times because of pain and 
 
         discomfort and that the trip took over an hour.  Claimant 
 
         collapsed on his front porch where his wife found him and took 
 
         him to the hospital.  At the hospital claimant underwent an 
 
         angioplasty on his left ventricular coronary artery, which was 
 
         found to be blocked. Claimant was diagnosed as having suffered a 
 
         heart attack.  Myocardial infarction or death of heart muscle 
 
         tissue, had occurred.
 
         
 
              Claimant had been experiencing chest pains for a period of 3 
 
         or 4 weeks prior to his heart attack on August 7, 1987, and 
 
         medical records indicated that claimant experienced chest pain as 
 
         early as September of 1986.  Claimant also had a family history 
 
         of heart disease and claimant had high blood pressure.  Claimant 
 
         was also a smoker.
 
         
 
              After his August 7, 1987 heart attack claimant was off work 
 
         until October of 1987, when he resumed his duties.  Claimant 
 
         continued to experience periodic chest pain.  On May 10, 1988, 
 
         claimant suffered a second heart attack while mushroom hunting.  
 
         Claimant was hospitalized and another angioplasty performed.  
 
         Claimant's blockage was found to be located in a different part 
 
         of the heart than was involved in the August 7, 1987, heart 
 
         attack.  One of claimant's doctors, Mark McGaughey, M.D., 
 
         described the May 10, 1988, heart attack as less severe than the 
 
         August 7, 1987, heart attack, but stated that both heart attacks 
 
         resulted in the death of heart tissue.
 
         
 
              Dr. McGaughey stated that claimant, as a result of his 
 
         August 7, 1987, heart attack, should be restricted from heavy 
 
         work but could perform desk work.  F.S. Downs, M.D., also 
 
         restricted claimant from returning to his former work at Woodward 
 
         State Hospital School and restricted claimant to non-stress work.
 
         
 
              Claimant seeks an award under the holding of Varied 
 
         Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  Under 
 
         this case, a claimant with a prior heart condition is not 
 
         required to show the unusual stress required by Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974). Rather, under Varied 
 
         Enterprises, claimant may be able to show that his present 
 
         condition arose out of his employment if the evidence shows  that 
 
         claimant continued working after the onset of heart attack 
 
         symptoms, and that the continuation of work contributed to the 
 
         impairment caused by the heart attack.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendants argue on appeal that claimant here, unlike the 
 
         claimant in Varied Enterprises, was not impelled to remain at 
 
         work once his heart attack symptoms occurred.  Defendants  points 
 
         out that claimant was not told he had to remain at work, and in 
 
         fact claimant was readily given permission to leave once he
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 11
 
         
 
         
 
         requested it, although a delay did occur while a replacement was 
 
         found.
 
         
 
              Although the Varied Enterprises case did involve a truck 
 
         driver who felt impelled to continue working after the onset of 
 
         heart attack symptoms because of his probationary status with his 
 
         employer, there is no explicit requirement in that case that a 
 
         worker feel impelled to remain at work because of a fear of 
 
         losing one's job.  Indeed, the Varied Enterprises court implied 
 
         that such compelling circumstances, although present in that 
 
         case, were not a prerequisite to compensation:
 
         
 
                 Moreover, we view the example set forth in the
 
              Larson treatise as only having reference to one type of
 
              situation which strongly demonstrates a causal
 
              contribution to employment.  It does not purport to
 
              establish an absolute requirement that a claimant be
 
              motivated to continue working in the face of a known
 
              health deprivation in order to produce a compensable
 
              situation.
 
         Varied Enterprises, at 409.
 
         
 
              A worker who is conscientious may delay seeking medical 
 
         treatment simply because of a self-imposed work ethic that 
 
         dictates against taking sick leave unless absolutely  necessary.  
 
         If this delay results in additional injury, the injury does arise 
 
         out of the employment.  This is especially true here, where there 
 
         is every indication that claimant did not recognize he  was 
 
         experiencing a heart attack, but instead felt he was suffering 
 
         indigestion.  Thus, the essential inquiry under Varied 
 
         Enterprises is whether claimant underwent additional stress 
 
         resulting in impairment by continuing to work after the onset of 
 
         heart attack symptoms.  Compensability hinges on whether 
 
         claimant's continued work activity substantially contributed to 
 
         his condition, and not whether claimant felt impelled to continue 
 
         working or merely chose to continue working.
 
         
 
              The stress resulting from continuing to work can take the 
 
         form of additional physical stress, mental stress, or an increase 
 
         in impairment caused by delaying the acquisition of  medical 
 
         assistance.  In this case, claimant's decision to continue 
 
         working resulted in claimant washing out heavy laundry barrels, 
 
         which then resulted in chest pains.  However, Dr. McGaughey 
 
         opined that although additional physical stress during the early 
 
         stages of a heart attack may increase impairment, that was not 
 
         indicated in this case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. McGaughey placed greater emphasis on the delay in 
 
         obtaining medical treatment.  Claimant testified that he left 
 
         work approximately one and one half to one and three quarters 
 
         hours after he first experienced symptoms. Claimant then drove 
 
         home, a trip that took from one hour to one hour and fifteen
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 12
 
         
 
         
 
         minutes.  Claimant was admitted to Boone County Hospital, where 
 
         he remained for an hour and forty-five minutes before being 
 
         transferred to Mercy Hospital in Des Moines, where he was 
 
         admitted at 7:35 a.m.  Dr. McGaughey testified that heart attack. 
 
         patients that are treated within one and a half hours and not 
 
         beyond four hours of the blockage will suffer less damage because 
 
         beyond four hours, the heart muscle tissue will have already 
 
         died.
 
         
 
              Thus, claimant was not seen by a physician until 
 
         approximately three hours after his symptoms first occurred.  
 
         Claimant was then transferred to another hospital and admitted 
 
         before the angioplasty itself was performed.  The three hour 
 
         delay represented by the time claimant continued to work after 
 
         the onset of symptoms and his drive home meant that even an 
 
         angioplasty could do little to help claimant, since much of his 
 
         heart tissue apparently died during the delay.  Dr. McGaughey 
 
         opined that this delay resulted in additional, irreversible 
 
         damage to claimant's heart tissue.  The damage to claimant's 
 
         heart caused by the delay in obtaining treatment while claimant 
 
         continued to work is an injury arising out of his employment.
 
         
 
              The second issue on appeal is to what extent claimant's 
 
         present disability stems from his work related heart attack.  
 
         Claimant suffered two heart attacks.  It has been determined 
 
         above that the heart attack of August 7, 1987, was work related.  
 
         Claimant's second heart attack, while mushroom hunting on May 6, 
 
         1988, was clearly related.  Claimant went back to work at his old 
 
         job after his first heart attack.  Claimant's restrictions were 
 
         imposed after his second heart attack.
 
         
 
              Dr. McGaughey stated that claimant's second heart attack was 
 
         unrelated to the first heart attack, and pointed out that a 
 
         separate blood vessel was involved in the May 6, 1988 heart 
 
         attack that was not involved in the August 7, 1987, heart attack.  
 
         However, Dr. McGaughey attributed both heart attacks to rapidly 
 
         progressive coronary disease.  Dr. McGaughey also testified that 
 
         claimant suffered a 20 percent permanent partial impairment of 
 
         the body as a result of the August 7, 1987, heart attack.  Dr. 
 
         McGaughey's statements as to restricting claimant from heavy work 
 
         were also made in response to a question about the effects of the 
 
         August 7, 1987, heart attack.  Dr. Brown recommended claimant 
 
         seek a less stressful job after the first heart attack and before 
 
         the second heart attack occurred.  The ejection fraction of 45 
 
         percent of the heart, which formed the basis for Dr. McGaughey's 
 
         rating, was known within six weeks after claimant's first heart 
 
         attack.  Dr. McGaughey did not ascribe any rating of impairment 
 
         or work restrictions to the May 6, 1988, heart attack.  The heart 
 
         damage that forms the basis of claimant's present condition 
 
         existed prior to the May 6, 1988 heart attack, and was clearly 
 
         caused by the August 7, 1987, heart attack.  There is no 
 
         indication that claimant's less severe heart attack on May 6,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 13
 
         
 
         
 
         1988, caused any permanent impairment.  Claimant's present 
 
         impairment is attributable to his August 7, 1987, heart attack.
 
         
 
              The nature and extent of claimant's disability is to be 
 
         measured industrially.  Claimant is 43 years old.  This age 
 
         normally represents a point in a worker's career when earnings 
 
         are highest.  Claimant's education beyond high school is minimal, 
 
         and limited to the field of commercial art.  Claimant's work 
 
         experience consists of retail management and his work as a 
 
         resident treatment worker. Claimant's doctors have indicated he 
 
         cannot return to his work as a resident treatment worker.
 
         
 
              Claimant has suffered a 20 percent permanent partial 
 
         impairment of his body.  Claimant has restrictions against heavy 
 
         work, or stressful work.  Claimant has not been offered 
 
         alternative employment within his restrictions by the employer.  
 
         However, claimant has made no conscientious efforts to find 
 
         substitute employment on his own.
 
         
 
              There is no medical evidence that claimant is totally 
 
         incapable of performing work.  Claimant's rating of physical 
 
         impairment is less than total, and claimant has not pled the odd 
 
         lot doctrine.  Even if the odd lot doctrine had been pled, 
 
         claimant has not shown sufficient attempts to find employment to 
 
         invoke the burden-shifting effect of the odd lot doctrine.  
 
         Claimant is capable of performing work within his restrictions.  
 
         Claimant is not permanently totally disabled.
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to have 
 
         an industrial disability of 45 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. On August 7, 1987, claimant suffered a heart attack in, 
 
         the course of his employment at Woodward State Hospital.
 
         
 
              2. Claimant continued working for over 2 hours while 
 
         experiencing severe vomiting with blood and chest pains.
 
         
 
              3. Claimant left Woodward at 3:30 a.m. and returned home, a 
 
         trip which took over an hour, and was immediately transported by 
 
         his wife to the hospital.
 
         
 
              4. Claimant underwent angioplasty surgery to remove the 
 
         blockage in one of his coronary arteries but surgery was too late 
 
         to prevent extensive heart damage.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              5. It is probable that had claimant been treated sooner, 
 
         heart damage would have been significantly less.
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 14
 
         
 
         
 
              6. On May 10, 1988, claimant experienced a second heart 
 
         attack as a result of a blockage of a different artery than the 
 
         artery involved in the August 1987 attack.
 
         
 
              7. The work injury or heart attack of August 7, 1987, was a 
 
         cause of a 20 percent permanent partial impairment to the body as 
 
         a whole and of permanent restrictions upon claimant's physical 
 
         activity consisting of no heavy lifting or work or stressful 
 
         employment of any kind.
 
         
 
              8. Claimant is 43 years of age and has a high school 
 
         education with some advanced art training.
 
         
 
              9. Claimant's restrictions prevent him from returning to the 
 
         work for which he is best suited given his work history and 
 
         education.
 
         
 
              10. Claimant has not been offered any alternative employment 
 
         by the State of Iowa.
 
         
 
              11. Claimant has shown little motivation to seek  
 
         alternative employment or vocational rehabilitation on his own.
 
         
 
              12. The work injury and heart attack of August 7, 1987 and 
 
         resulting permanent partial impairment and work restrictions  
 
         were a cause of a 45 percent loss of earning capacity.
 
         
 
              13. The medical expenses listed in the prehearing report 
 
         constitute reasonable and necessary treatment of the work injury 
 
         on August 7, 1987, except for the expenses relating to the 
 
         treatment of claimant's heart attack on May 10, 1988, namely: The 
 
         Mercy Care on May 10 through May 16, 1988 ($8,167.25); the care 
 
         of Dr. Downs on May 10, 1988 ($74.00); and the care the 
 
         Cardiology Associates from May 11, 1988 through May 15, 1988 
 
         ($2,819.00).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's continued work on August 7, 1987, after the onset 
 
         of heart attack symptoms was an injury arising out of and in the 
 
         course of his employment.
 
         
 
              Claimant's work injury of August 7, 1987 was a substantial 
 
         cause of claimant's present impairment.
 
         
 
              Claimant has an industrial disability of 45 percent.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 15
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant two hundred 
 
         twenty-five (225) weeks of permanent partial disability benefits 
 
         at the rate of two hundred twenty-one and 08/100 dollars 
 
         ($221.08) per week from October 27, 1987.
 
         
 
              That defendants shall pay claimant the medical expenses 
 
         listed in the prehearing report except those expenses relating to 
 
         treatment of the May 1988 heart attack set forth in finding 
 
         number 6 above.  Claimant shall be reimbursed if he has paid 
 
         those expenses.  Otherwise, defendants shall pay the provider 
 
         directly subject to any attorney lien claimant's attorney may 
 
         have for these expenses.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              That defendants shall receive credit for previous payment of 
 
         benefits under a non-occupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              That defendants shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 and specifically 
 
         the costs listed by  claimant's attorney in the prehearing 
 
         report, exhibit I.
 
         
 
              That defendants shall file an activity report on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 31st day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                         JON E. HEITLAND
 
                                         CHIEF DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MILLER V. WOODWARD STATE HOSPITAL SCHOOL
 
         Page 16
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Joseph M. Bauer
 
         Attorney at Law
 
         309 Court Ave., Ste. 500
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Eleanor E. Lynn
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         2202,1100,51108.10
 
                                         51803,2906
 
                                         Filed May 31, 1990
 
                                         JON E. HEITLAND
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE 'BUD' MILLER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No.853647
 
         WOODWARD STATE HOSPITAL
 
         SCHOOL,
 
                                                 A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2202, 1100
 
         
 
              Held that claimant who experienced a heart attack at work 
 
         and who kept on working after onset of symptoms, which delay in 
 
         seeking treatment resulted in substantial death of heart tissue, 
 
         suffered an injury arising out of his employment.  Varied 
 
         Enterprises clarified as not requiring that the claimant feel 
 
         impelled to continue working to make injury compensable.  Rather, 
 
         merely continuing to work even absent impelling circumstances 
 
         makes the increased heart damage an injury arising out of the 
 
         employment.
 
         
 
         5-1108.10
 
         
 
              The record showed that claimant's present disability was 
 
         attributable to his work related heart attack and not to his 
 
         later non-work related heart attack.
 
         
 
         5-1803
 
         
 
              Claimant, 43 years old, with high school plus 2 years art 
 
         school education, work experience limited to retail work and 
 
         institutional work, with 20 percent body as a whole impairment, 
 
         was awarded industrial disability of 45 percent.  Although
 
         
 
         
 
         
 
         defendants had not found substitute work for claimant, claimant 
 
         had made no effort to find alternative employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         2906
 
         
 
              Due to bias, another deputy should have been assigned to 
 
         hear the case.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE "BUD" MILLER,
 
         
 
              Claimant,
 
                                                    File No. 853647
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         WOODWARD STATE HOSPITAL SCHOOL,
 
                                                     D E C I S I 0 N
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      JUN 01 1989
 
         STATE OF IOWA,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Lawrence 
 
         "Bud" Miller, claimant, against Woodward State Hospital School, 
 
         employer, an agency of the State of Iowa, for workers' 
 
         compensation benefits as a result of an alleged injury on August 
 
         7, 1987.  On October 14, 1988, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Edward Haywood and Kathy Hargens.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  Claimant is not seeking additional temporary total 
 
         disability or healing period benefits in this proceeding.
 
         
 
              2.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              3.  If permanent disability benefits are awarded, they shall 
 
         begin as of October 27, 1987.
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $221.08 
 
                                                
 
                                                         
 
         per week.
 
         
 
              5.  With reference to the medical bills submitted by 
 
         claimant at hearing, the providers would testify that they were 
 
         fair and reasonable.and defendant is not offering contrary 
 
         evidence.  Also, it was agreed that these bills are causally 
 
         connected to the medical condition upon which the claim is based 
 
         but the issue of their causal connection to a work injury remains 
 
         at issue.
 
         
 
              6.  At the time of the alleged injury, an employer-employee 
 
         relationship existed between the State of Iowa and claimant.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
               II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability;
 
         
 
               IV.  The extent of claimant's entitlement to medical 
 
         benefits; and,
 
         
 
                V.  The extent of claimant's entitlement to additional 
 
         benefits for an unreasonable denial or delay in benefits.
 
         
 
                             STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Woodward State 
 
         Hospital from 1984 until his second heart attack on May 10, 1988, 
 
         as a resident treatment worker.  He stated that his duties 
 
         consisted of generalized care of retarded persons as well as 
 
         janitorial duties. Claimant earned $8.32 per hour in this job at 
 
         the time of the alleged injury.  Claimant stated at hearing that 
 
         he left his employment at Woodward after the second heart attack 
 
         due to physician imposed work restrictions against heavy lifting 
 
         with no job stress.  Claimant was told by Woodward that no light 
 
         duty was available at the hospital.  At the time of the hearing, 
 
         claimant had applied for long-term disability benefits provided 
 
         under the applicable labor contract.
 
                                                
 
                                                         
 
         
 
              Claimant testified that he suffered his first heart attack 
 
         in the early morning of August 7, 1987.  Claimant was working the 
 
         night shift from 10:45 p.m. until 6:00 a.m.  Claimant said that 
 
         his initial symptoms of vomiting with blood and indigestion-type 
 
         of stomach discomfort began approximately 1:00 a.m.  This was 
 
         verified by fellow employee, Edward Haywood.  Haywood, a union 
 
         steward in claimant's work area, testified that claimant indeed 
 
         began to experience such symptoms and called their supervisor, 
 
         Kathy Hargens, on his own to inform her of claimant's illness. 
 
         Haywood testified that claimant did not wish to leave work at 
 
         that time.  Claimant testified that he continued working that 
 
         evening including the washing of laundry barrels which at times 
 
         required heavy lifting.  Claimant said that it was after this 
 
         work that he began to experience severe chest pains.  Haywood 
 
         said that he called Hargens two more times that evening but 
 
         claimant did not express an interest in leaving work until 
 
         claimant spoke to Hargens after the third call.  Claimant said 
 
         that Hargens told him at that time he could leave as soon as the 
 
         replacement arrived in the unit.  Hargens testified that the 
 
         hospital was over staffed that night and there was no problem in 
 
         getting a replacement for claimant.  However, Hargens did not 
 
         dispute the claim that claimant had to wait approximately 20 
 
         minutes for his replacement to arrive.
 
         
 
              Claimant testified that he left work approximately 3:30 
 
         a.m. and began to drive home.  Haywood and Hargens both said 
 
         that claimant did not ask for assistance in returning home.  
 
         Claimant testified that they did not offer such assistance 
 
         either. Claimant then began to drive home which was 
 
         approximately 17 miles.  Claimant said that he had to stop 
 
         repeatedly due to pain and discomfort and that it took over an 
 
         hour to travel home. Claimant testified that upon his arrival at 
 
         home he fell on the porch awaking his wife who immediately took 
 
         him to the Boone County Hospital.  Upon his arrival at the Boone 
 
         facility, claimant was immediately transferred by his family 
 
         doctor, F. S. Downs, M.D., to Mercy Medical Center in Des 
 
         Moines, Iowa.  After tests upon his arrival at Mercy, an 
 
         angioplasty was performed on a blocked left ventricular coronary 
 
         artery in claimant's heart, but serious myocardial infarction 
 
         (death of a heart muscle) had already taken place.
 
         
 
              Claimant had experienced severe vomiting and chest pains 
 
         before August of 1987.  At the time of his admission to Mercy, 
 
         Dr. Downs noted a history of chest pains for the last three or 
 
         four weeks and a long history of morning nausea.  The earliest 
 
         complaints of chest pain in Dr. Downs' office records occurred in 
 
         September of 1986.  In July 1987, Dr. Downs noted that claimant 
 
         was a walking time bomb for coronary due to his family history of 
 
         heart disease, his refusal to lose weight, his refusal to quit 
 
         smoking or to control his high blood pressure.  However, before 
 
         August 1987, Dr. Downs did not diagnose that the chest pains were 
 
         due to coronary problems.  Dr. Downs felt that they could have 
 
         been due to a multitude of causes including chest wall muscle 
 
         pain.  Following a bout of chest pain, claimant was given a 
 
                                                
 
                                                         
 
         "stress test".of his cardiopulmonary functions shortly before the 
 
         heart attack on August 4, 1987, and no abnormality was found.  
 
         Dr. Downs noted a history of chest pain in his office records on 
 
         the morning of August 6, 1987, the day shortly before the heart 
 
         attack.  At hearing claimant testified that he had no chest pain 
 
         in August before the seventh.
 
         
 
              Following a period of healing, claimant returned to work as 
 
         a resident treatment worker at Woodward in October of 1987, and 
 
         testified that he only had minor problems after that time 
 
         including regular bouts of chest pain.  In October of 1987, Dr. 
 
         Downs was unhappy to learn that claimant had carried a deep 
 
         freeze and water heater down steps into the basement of his home.  
 
         Dr. Downs stated that claimant should not engage in such heavy 
 
         work. During the rest of 1987 and the first quarter of 1988, 
 
         claimant continued to work without apparent restrictions but 
 
         regularly used nitroglycerin tablets for recurrent angina pain.  
 
         Claimant said that chest pain would also occur after activity and 
 
         claimant complained continually of fatigue.  Claimant did not use 
 
         nitroglycerin tablets before August of 1987.
 
         
 
              On May 10, 1988, while off work mushroom hunting, claimant 
 
         began to experience chest pain and he used his nitro tablets.  
 
         That evening the pains returned but were not controlled by the 
 
         nitroglycerin tablets.  Claimant then reported to the hospital 
 
 
 
                             
 
                                                         
 
         which found an additional blockage in another coronary artery and 
 
         a second angioplasty was performed.  One of claimant's 
 
         cardiologist at the time, Mark McGaughey, M.D., in his deposition 
 
         testimony describes this incident as a "very small heart attack" 
 
         which was unrelated to the August 1987 incident.  No other 
 
         physician has given an opinion as to the relative seriousness of 
 
         the May 1988 heart attack as compared to the heart attack in 
 
         August of 1987. Both of these attacks, however, resulted in a 
 
         death of a portion of claimant's heart muscle.
 
         
 
              When asked to rate the loss of function from his heart 
 
         condition, Dr. McGaughey opines that claimant has suffered 
 
         approximately a 20 percent loss of functional capability.  The 
 
         doctor did not apportion this rating between the two heart 
 
         attacks but it was clear from his deposition testimony that he 
 
         felt that the August 1987 attack was the major contributor.  When 
 
         asked what restrictions upon claimant's activity he would impose 
 
         as a result of the August 1987 heart attack, Dr. McGaughey states 
 
         that claimant should be restricted from heavy work but that he 
 
         would be able to perform desk work.  Dr. McGaughey also stated 
 
         that the testing performed upon claimant after the second heart 
 
         attack in May of 1988, indicated that claimant recovered very 
 
         little from the August 1987 infarction.  Dr. Downs imposed 
 
         additional work restrictions in June of 1988, consisting of 
 
         non-stress type of work.  Dr. Downs also specifically restricted 
 
         claimant from returning to work as a resident treatment worker at 
 
         Woodward.
 
         
 
              Dr. McGaughey has opined that claimant's continued working 
 
         at Woodward in the morning of August 7, 1987, rather than seeking 
 
         immediate medical attention when he first experienced the onset 
 
         of symptoms likely worsened the permanent damage to claimant's 
 
         heart. In his deposition testimony, Dr. McGaughey explained that 
 
         studies have shown that treatment received within 4 to 6 hours of 
 
         the onset of symptoms is likely to be effective in preventing 
 
         permanent heart damage.  In the case of claimant, claimant was 
 
         nearly 7 hours past from the onset of symptoms by the time he 
 
         arrived at Mercy at 7:30 or 8:00 a.m.  Finally, Dr. McGaughey 
 
         stated that claimant's prognosis is not good and that unless his 
 
         risk factors are drastically changed, claimant will likely worsen 
 
         and suffer future heart problems as a natural course of the heart 
 
         disease process.
 
         
 
              Claimant testified that he is 43 years of age and has a high 
 
         school education.  Claimant attended for a short time junior 
 
         college majoring in advertising and art.  Claimant also spent 2 
 
         1/2 years at a commercial art institute.  Claimant worked first 
 
         as a clerk and later as a store manager of a retail store for 
 
         approximately 11 years and for two years as a sales manager of 
 
         Griswold Coffee.  Both of these jobs paid claimant $7.00 to $8.00 
 
         an hour.  Before his employment at Woodward, claimant worked for 
 
         8 years as a machinist earning $8.00 to $9.00 per hour.
 
         
 
              Claimant did not discuss in his testimony what efforts, if 
 
         any, he has made to return himself to work in alternative 
 
                                                
 
                                                         
 
         employment other than reapplying at Woodward.
 
         
 
              From his demeanor at hearing, claimant appeared credible.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              A credibility finding is necessary to this decision.  
 
         Serious factual issues exist with reference to the truthfulness 
 
         of claimant's testimony regarding the onset of symptoms, the time 
 
         when the symptoms occurred, the circumstances of his leaving work 
 
         and the type of work he was performing before leaving work on the 
 
         morning of his first attack.
 
         
 
              The arising out of and causal connection factual issues will 
 
         be dealt with together as they involve similar legal and factual 
 
         issues.
 
         
 
                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.
 
         
 
               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.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
                                                
 
                                                         
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In work injuries involving the heart, Iowa claimants with 
 
         preexisting circulatory or heart conditions are permitted upon 
 
         proper medical proof to recover workers' compensation benefits 
 
         only when the employment contributes something substantial to 
 
         increase the risk of injury or death.  The employment 
 
         contribution must take the form of an exertion greater than 
 
         nonemployment life. Sondag, 220 N.W.2d 903 (Iowa 1974).  The 
 
         comparison, however, is not with the employee's usual exertion in 
 
         his employment but with exertions of normal nonemployment life of 
 
         this or any other person.  Id.  These exertions may be physical 
 
         or emotional. Swalwell v. William Knudson and Son, Inc., II Iowa 
 
         Industrial Commissioner Report 385 (Appeal Decision 1982).  The 
 
         Sondag rule is favored by Professor Larson in his treatise on 
 
         workers' compensation.  See IA Larson, Workers' Compensation Law, 
 
         section 38.83 at 7-172.  According to Professor Larson, the 
 
         causative test is a two part analysis.  First, there is a medical 
 
         causation test in which the medical experts must be relied upon 
 
         to causally relate the alleged stress (emotional or physical) to 
 
         the heart injury.  Second, there is a legal causation test to 
 
         determine if the medically related stress is more than the stress 
 
         of everyday non-employment life.
 
         
 
              In the case sub judice, claimant testified that he was 
 
         performing heavy lifting after the first onset of symptoms and 
 
         his symptoms worsened into chest pains after such activity.  The 
 
         testimony of Haywood did not greatly contradict this testimony as 
 
         he was absent from claimant's work unit for a portion of the 
 
         time. However, Haywood was credible when he testified that 
 
         claimant was lying down part of the time.  Also, Dr. Downs 
 
         reported a history given to him by claimant that claimant first 
 
         had chest pains on the morning of August 6.  Given such evidence 
 
         and the lack of any medical opinion to support claimant's 
 
         position, the greater weight of the evidence fails to show a 
 
         causal connection between the August 7, 1987 heart attack and the 
 
         degree of physical work or emotional stress claimant was 
 
                                                
 
                                                         
 
         experiencing at Woodward before and during the onset of his 
 
         symptoms on August 7, 1987.
 
         
 
              However, claimant does not rely upon the unusual stress 
 
         theory but upon the theory of recovery set forth in Varied 
 
         Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  In that 
 
         case, the Iowa Supreme Court affirmed a decision by this agency 
 
         to award compensation to a truck driver as a result of a heart 
 
         attack while driving a truck.  Similar to the case at bar, no 
 
         medical expert in Varied Enterprises supported a causal 
 
         connection between the heart attack and the physical or emotional 
 
         stress Sumner was experiencing while driving.  However, a causal 
 
         connection between the devastating effects of the heart attack 
 
         and claimant's employment was found on the basis that Sumner 
 
         chose to continue driving his truck after the initial onset of 
 
         symptoms rather than seek medical attention.  According to the 
 
         experts, this delay in treatment greatly worsened the heart 
 
         attack and resulted in a much larger death of the cardiac muscle 
 
         than would have been the case had treatment been provided 
 
         earlier.
 
         
 
              In the case sub judice, defendant points out that Miller was 
 
         not aware that he was risking serious injury by continuing to 
 
         work as he felt that the initial symptoms were only indigestion.  
 
         This, however, was also true for Sumner in Varied Enterprises.  
 
         The court in Varied Enterprises stated that there was no 
 
         "absolute requirement that a claimant be motivated to continue 
 
         work in the face of a known health deprivation in order to 
 
         produce a compensable situation."
 
         
 
              Defendant additionally argues that Varied Enterprises does 
 
         not apply because Sumner was motivated to continue driving as a 
 
         result of his fear of losing his job because he was in a 
 
 
 
                             
 
                                                         
 
         probationary status.  This was not true in the case at bar.  The 
 
         undersigned must disagree with an interpretation of Varied 
 
         Enterprises.  Fear of losing one's job is not the only scenario 
 
         for compensability in these situations.  Admittedly, in Varied 
 
         Enterprises the industrial commissioner found that claimant felt 
 
         impelled to continue driving because of the demands of his 
 
         employment.  This finding was founded on claimant's fear of the 
 
         effect of loss time upon his probationary status.  However, the 
 
         undersigned can imagine many scenarios where potential claimants 
 
         would be compelled to continue work because of the demands of 
 
         their employment.  Conscientious workers who have a professional 
 
         attitude toward their work and who do not lightly abandon their 
 
         work can also be motivated by the demands of their employment to 
 
         continue working in the face of medical symptomatology.  In the 
 
         case of Mr. Miller, he knew well that he had to be replaced in 
 
         the care unit where he was working, whether or not the hospital 
 
         was over staffed or not.  He chose to continue working and 
 
         remained "at his post" in the face of serious symptoms as an 
 
         apparent commitment to his work.
 
         
 
              Defendant also points out that claimant traveled home rather 
 
         than to the hospital when he left Woodward on the morning of 
 
         August 7, 1987.  Defendant contends that claimant would have 
 
         remained at home had he left earlier and would not have went to 
 
         the hospital until his symptoms had worsened.  Therefore, he would 
 
         not have received earlier medical treatment in any event.  
 
         However, there was no guarantee in Sumner that Sumner would have 
 
         actually sought medical treatment earlier.
 
         
 
              Consequently, the undersigned can find no way to distinguish 
 
         the facts of this case from the facts of Varied Enterprises. 
 
         Claimant felt compelled to continue working due to the demands of 
 
         his employment and this decision probably cost him dearly in 
 
         additional damage to his heart according to the uncontroverted 
 
         opinion of Dr. McGaughey.  Even though it took claimant between 4 
 
         to 5 hours to get to the Mercy Medical Center, had he left at 
 
         1:00 instead of 3:30 a.m. he would have still been within the 4 
 
         to 6 hour range described by Dr. McGaughey from the onset of 
 
         symptoms that provides a window of opportunity to minimize heart 
 
         damage.
 
         
 
              Finally, with reference to causal connection, it is apparent 
 
         that the only physician to render a causal connection opinion in 
 
         this case, Dr. McGaughey, believes that the first heart attack 
 
         was a source of almost all of claimant's disability, which he 
 
         rates as a 20 percent loss of function.  In response to questions 
 
         of claimant's counsel in his deposition, the doctor attributed 
 
         all of the current work restrictions to the first attack and 
 
         minimized the seriousness of claimant's second attack.  This 
 
         opinion appears to be contradicted by the fact that claimant 
 
         returned to work after the first injury without restrictions and 
 
         was not permitted to return to Woodward only after the second 
 
         attack when those restrictions were imposed.  However, as 
 
         explained by Dr. McGaughey, the examination after the second 
 
         attack demonstrated that claimant had not improved after the 
 
                                                
 
                                                         
 
         first attack and although the second attack may have precipitated 
 
         physicians to think about imposing restrictions, the fact remains 
 
         that the only physician to render a causal connection in this 
 
         case opines that the primary heart damage was done in August 
 
         1987, not May of 1988.  Given such testimony, the undersigned 
 
         must conclude that claimant's physicians would have imposed 
 
         claimant's current physical and emotional restrictions even if 
 
         there had been no second heart attack.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury 
 
         certainly was not excellent but no physical or emotional 
 
         disability had manifested itself before August of 1987.  Claimant 
 
         was able to fully perform physical tasks involving heavy work and 
 
         significant job stress before August 1987.  Apportionment of 
 
         disability between a preexisting condition and an injury is 
 
         proper only when there is some ascertainable disability which 
 
         existed independently before the injury occurred.  Varied 
 
         Enterprises, Inc., at 407 (Iowa 1984).
 
         
 
              One of claimant's treating physicians, Dr. McGaughey, has 
 
         given claimant a significant permanent impairment rating to the 
 
         body as a whole.  However, in an industrial disability case, work 
 
         restrictions are more useful in assessing loss of earning 
 
                                                
 
                                                         
 
         capacity. In this case, claimant's physicians have restricted 
 
         claimant from all heavy work and from high stress employment.  
 
         Such restrictions prevent him from returning to his job at 
 
         Woodward and from most other work claimant has held in the past.
 
         
 
              Claimant has not plead or argued for application of the 
 
         "odd-lot doctrine" as described in Guyton v. Irving Jensen Co., 
 
         373 N.W.2d 101 (Iowa 1985).
 
         
 
              Claimant is 43 years of age and should be in the most 
 
         productive years of his working life.  His disability from the 
 
         work injury is more severe than would be the case of a younger or 
 
         an older individual.  See Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report, Iowa Industrial Commissioner 34 
 
         (Appeal Decision 1979).  See also Walton v. B & H Tank 
 
         Corporation, II Iowa Industrial Commissioner Report 426 (Appeal 
 
         Decision 1981).
 
         
 
              Claimant has not been returned to work in any capacity by 
 
         defendant despite a wide variety of jobs available in state 
 
         employment.  This is certainly evidence of a serious disability. 
 
         However, claimant has not shown a great deal of motivation either 
 
         to seek suitable alternative employment.  No physician in this 
 
         case has opined that claimant is incapable of any work.  Dr. 
 
         McGaughey feels that claimant is capable of desk or sedentary 
 
         work.  If we consider the restrictions by Dr. McGaughey against 
 
         stress, such sedentary work would have to be limited to clerical 
 
         or low pressure type of positions.  In the experience of this 
 
         agency, such positions are paid well below the $8.32 per hour job 
 
         at Woodward.
 
         
 
              Claimant has a high school education and exhibited average 
 
         intelligence at the hearing.  However, little was shown to 
 
         indicate claimant's true potential for vocational rehabilitation. 
 
         Claimant has not attempted such rehabilitation on his own.
 
         
 
              After examination of all of the factors, positive and 
 
         negative, it is found as a matter of fact that claimant has 
 
         suffered a 60 percent loss of his earning capacity from his work 
 
         injury.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to 300 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(u) which is 60 percent 
 
         of 500 weeks, the maximum allowable number of weeks for an injury 
 
         to the body as a whole in that subsection.
 
         
 
               IV.  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 is paid those expenses. 
 
         Otherwise claimant is entitled to only an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              As a result of defendant's stipulations with reference to 
 
         causal connection in the prehearing report, all of the expenses 
 
                                                
 
                                                         
 
         requested by claimant will be ordered paid by defendant except 
 
         for the expenses for treatment of the second heart attack.  Dr. 
 
         McGaughey clearly opined that there is no causal connection 
 
         between the first and second heart attacks.  The balance of the 
 
         requested expenses appear to be maintenance care for the cardiac 
 
         damage as a result of the August 1987 attack or at least duel 
 
         care for both attacks which cannot be apportioned in any rational 
 
         manner.
 
         
 
                V.  With reference to claimant's request for penalty 
 
         benefits for an alleged unreasonable denial of benefits, the 
 
         facts of this case were not shown to be so clear as to 
 
         demonstrate compensability without reasonable question.  Such 
 
         additional benefits are denied.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On August 7, 1987, claimant suffered an injury 
 
         consisting of a heart attack to the body as a whole which arose 
 
         out of and in the course of employment at Woodward State 
 
         Hospital.  Although it was not shown that the extent of 
 
         claimants' activity or stress he experienced during his 
 
         employment contributed to this heart attack, claimant was 
 
         impelled to continue working when heart attack symptoms began at 
 
         1:00 a.m. due to the demands of his employment.  Claimant knew 
 
         that he would have to be replaced before he could leave the work 
 
         unit.  Claimant chose to remain working for 2 1/2 hours while 
 
         experiencing severe vomiting with blood and chest pains.  
 
         Claimant left Woodward at 3:30 a.m. and returned home and was 
 
         immediately transported by his wife to the hospital.  Claimant 
 
         arrived in Des Moines for cardiac care at approximately 7:30 or 
 
 
 
                              
 
                                                         
 
         8:00 a.m.  At that time claimant underwent angioplasty surgery to 
 
         remove the blockage in one of his coronary arteries but surgery 
 
         was too late to prevent extensive heart damage.  It is probable 
 
         that had claimant been treated within 4 to 6 hours of the first 
 
         onset of symptoms at 1:00 a.m., heart damage would have been 
 
         significantly less.
 
         
 
              On May 10, 1988, claimant experienced a second heart attack 
 
         as a result of a blockage of a different artery than the artery 
 
         involved in the August 1987 attack.  Claimant underwent a second 
 
         angioplasty at that time.  This, however, was a very small attack 
 
         as compared to the August 1987 heart attack.
 
         
 
              3.  The work injury or heart attack of August 7, 1987, was a 
 
         cause of a 20 percent permanent partial impairment to the body as 
 
         a whole and of permanent restrictions upon claimant's physical 
 
         activity consisting of no heavy lifting or work or stressful 
 
         employment of any kind.  It was discovered at the time of the 
 
         second heart attack that claimant had recovered very little from 
 
         the first heart attack and work restrictions were imposed at that 
 
         time.  These work restrictions would exist at the present time 
 
         whether or not claimant had experienced the second heart attack.
 
         
 
              4.  The work injury and heart attack of August 7, 1987 and 
 
         resulting permanent partial impairment and work restrictions were 
 
         a cause of a 60 percent loss of earning capacity.  Claimant is 43 
 
         years of age and has a high school education.  Claimant's 
 
         restrictions prevent him from returning to the work for which he 
 
         is best suited given his work history and education.  Claimant 
 
         has not been offered any alternative employment by the State of 
 
         Iowa. Available employment may be limited but claimant has shown 
 
         little motivation to seek alternative employment or vocational 
 
         rehabilitation on his own.  Claimant appears to be able to handle 
 
         sedentary work but such work would earn less than the work 
 
         claimant was performing at the time of his work injury.
 
         
 
              5.  The medical expenses listed in the prehearing report 
 
         constitute reasonable and necessary treatment of the work injury 
 
         on August 7, 1987, except for the expenses relating to the 
 
         treatment of claimant's heart attack on May 10, 1988, namely:  
 
         The Mercy Care on May 10 through May 16, 1988 ($8,167.25); the 
 
         care of Dr. Downs on May 10, 1988 ($74.00); and, the care of 
 
         Cardiology Associates from May 11, 1988 through May 15, 1988 
 
         ($2,819.00).
 
         
 
              Claimant has not shown an unreasonable denial or delay in 
 
         payment of workers' compensation benefits on the part of the 
 
         State of Iowa.
 
         
 
                           CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to specific 
 
         disability and medical benefits awarded below.
 
         
 
                                   ORDER
 
                                                
 
                                                         
 
         
 
              1.  Defendant shall pay to claimant three hundred (300) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred twenty-one and 08/100 dollars ($221.08) per week from 
 
         October 27, 1987.
 
         
 
              2.  Defendant shall pay claimant the medical expenses listed 
 
         in the prehearing report except those expenses relating to 
 
         treatment of the May 1988 heart attack set forth in finding 
 
         number 6 above.  Claimant shall be reimbursed if he has paid 
 
         those expenses.  Otherwise, defendant shall pay the provider 
 
         directly subject to any attorney lien claimant's attorney may 
 
         have for these expenses.
 
         
 
              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 non-occupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              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 and specifically 
 
         the costs listed by claimant's attorney in the prehearing report, 
 
         exhibit I.
 
         
 
              7.  Defendant shall file activity report on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 1st day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph M. Bauer
 
         Attorney at Law
 
         309 Court Ave., STE 500
 
         Des Moines, Iowa  50309
 
         
 
         Ms. Eleanor E. Lynn
 
         Assistant Attorney General
 
                                                
 
                                                         
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAWRENCE "BUD" MILLER,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 853647
 
            WOODWARD STATE HOSPITAL       :
 
            SCHOOL,                       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 The undersigned has been delegated authority pursuant 
 
            to Iowa Code section 86.3 to issue the final agency decision 
 
            in this case.  Defendants appeal from an arbitration 
 
            decision awarding permanent partial disability benefits as 
 
            the result of an alleged injury on August 7, 1987.  Claimant 
 
            cross-appeals.  The record on appeal consists of the 
 
            transcript of the arbitration proceeding; claimant's 
 
            exhibits A through J; and defendants' exhibits 1 through 8.  
 
            Both parties filed briefs on appeal.  Defendants filed a 
 
            reply brief. 
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                   I.  The deputy erred in holding that the 
 
                 claimant's injury arose out of his employment.
 
            
 
                  II.  The deputy erred in declaring that any 
 
                 industrial disability suffered by the claimant was 
 
                 attributable solely to the first heart attack of 
 
                 August 7, 1987.
 
            
 
                 III.  The deputy erred in finding that the 
 
                 claimant had suffered a 60 percent loss of earning 
 
                 capacity.
 
            
 
                  IV.  The deputy erred in refusing to recuse 
 
                 himself from hearing and deciding this case based 
 
                 on a conflict of interests.
 
            
 
                 Claimant states the following issue on cross-appeal:  
 
            "Whether claimant is permanently totally disabled."
 
            
 
                                  APPLICABLE LAW
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence, with the 
 
            additional citations of law contained in the analysis below.
 
            
 
                       review of the evidence and analysis
 
            
 
                 Defendants have raised as an issue on appeal the denial 
 
            of their motion for the hearing officer to recuse himself 
 
            from hearing the case.  The deputy industrial commissioner 
 
            assigned to hear the case was Larry P. Walshire.  Mr. 
 
            Walshire is a member of Local 3450, Iowa Council 61, 
 
            American Federation of State, County and Municipal Employees 
 
            (AFSCME).  AFSCME is a union representing state employees in 
 
            collective bargaining matters.  Mr. Walshire serves as 
 
            President of Local 3450, and has been involved on behalf of 
 
            state employees in grievance proceedings as well as wage 
 
            negotiations.  The claimant appearing before Deputy Walshire 
 
            in this case is a state employee and a member of AFSCME, and 
 
            one of the defendants is the State of Iowa, the governmental 
 
            entity Mr. Walshire bargains with as a union official. 
 
            
 
                 Defendants filed a motion seeking a recusal of Deputy 
 
            Walshire from hearing the case.  Defendants pointed out Iowa 
 
            Administrative Code section 343-4.38 (17A), which provides:
 
            
 
                    Any individuals presiding over contested cases 
 
                 before the industrial commissioner shall 
 
                 disqualify themselves from conducting a hearing on 
 
                 the merits or deciding any contested case in which 
 
                 such individual has substantial prior contact or 
 
                 interest or is so related to or connected with any 
 
                 party or attorney thereto so as to give, in the 
 
                 opinion of the person presiding, even the 
 
                 appearance of impropriety for such individual to 
 
                 conduct such hearing or decide such case.
 
            
 
                 Rule 4.38 was cited by defendants in their motion for 
 
            recusal.  However, 4.38 deals with self-disqualification by 
 
            the hearing officer.  By its language, the rule is invoked 
 
            only when the deputy subjectively concludes that an 
 
            appearance of impropriety exists.  Deputy Walshire concluded 
 
            that no appearance of impropriety existed. 
 
            
 
                 The actual nature of the defendants' motion for recusal 
 
            was a claim of bias.  As a motion for involuntary 
 
            disqualification, defendants' motion should not have been 
 
            brought under rule 4.38, but under Iowa Code section 
 
            17A.17(4).  That section states:
 
            
 
                    A party to a contested case proceeding may file 
 
                 a timely and sufficient affidavit asserting 
 
                 disqualification according to the provisions of 
 
                 subsection 3, or asserting personal bias of an 
 
                 individual participating in the making of any 
 
                 proposed or final decision in that case.  The 
 
                 agency shall determine the matter as part of the 
 
                 record in the case.  When an agency in these 
 
                 circumstances makes such a determination with 
 
                 respect to an agency member, that determination 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 shall be subject to de novo judicial review in any 
 
                 subsequent review proceeding of the case.
 
            
 
                 Iowa Code 17A.17(4) also refers to a timely affidavit 
 
            alleging grounds for disqualification.  A motion for recusal 
 
            filed on the morning of the scheduled hearing cannot be 
 
            viewed as timely, especially in light of the requirement of 
 
            17A.17(4) that the agency, presumably someone other than the 
 
            deputy who is alleged to be biased, determine the matter.  
 
            Deputy Walshire's union position and activities were known 
 
            to the defendants well in advance of the date of the 
 
            hearing.  Regardless of the merits of the motion for recusal 
 
            based on Deputy Walshire's union position, it was not 
 
            properly raised in this instance, and will not be addressed 
 
            on appeal.
 
            
 
                 However, on appeal the defendants also raise the issue 
 
            of Deputy Walshire's personal bias as a ground for 
 
            disqualification, separate and distinct from any possible 
 
            bias or impropriety by virtue of his union position and 
 
            activities.  The basis of the allegation of personal bias 
 
            stems from comments made by Deputy Walshire at the time of 
 
            the hearing, and in his written ruling on the motion for 
 
            recusal, which was provided to the defendants at the time of 
 
            the hearing.  Since the basis of the claim of personal bias 
 
            first arose at the hearing, there was no opportunity for the 
 
            defendants to seek a determination by the agency on grounds 
 
            for disqualification under 17A.17(4) prior to the hearing.  
 
            This appeal is, in effect, the first opportunity for the 
 
            question of personal bias to be addressed by the agency.  
 
            Thus, the personal bias question will be dealt with in this 
 
            decision.
 
            
 
                 Bias has been defined as "advance, preconceived mental 
 
            attitude or disposition, toward a party to a controversy, of 
 
            such weight and nature as to materially impair or destroy 
 
            that impartiality essential to a fair hearing".  Cedar 
 
            Rapids Steel Transp. v. Iowa State Com. Com'n, 160 N.W.2d 
 
            825 (Iowa 1968).  After receiving the motion for recusal 
 
            based on his union activities, the following conversation 
 
            between Deputy Walshire and the parties took place on the 
 
            record:
 
            
 
                    The hearing commences on October 14, 1988.  At 
 
                 the time and place previously set by order of the 
 
                 deputy commissioner who handled the last 
 
                 prehearing conference.  Claimant appears at this 
 
                 hearing in person with his attorney, Joseph Bauer.  
 
                 The defendant appears by and through its attorney, 
 
                 Assistant Attorney General Eleanor Lynn.  At this 
 
                 time I appoint Susan Peterson as the official 
 
                 shorthand reporter of the proceeding and as 
 
                 custodian of her notes of this proceeding.
 
            
 
                    It is my understanding that the State has a 
 
                 motion dealing with my hearing this case.  And 
 
                 I'll turn it over to the State at this time to 
 
                 make whatever records it wishes to make.
 
            
 
                    Ms. Lynn:  I would like, at this time, to make 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 a motion for this hearing officer to recluse (sic) 
 
                 himself in this matter in view of the hearing 
 
                 officer's involvement in AFSCME and president of 
 
                 the local unit of AFSCME and chairman of the 
 
                 procedures of the fiscal bargaining unit 
 
                 negotiating team.  My understanding through 
 
                 Answers to Interrogatories and answers in 
 
                 depositions in this matter is that the claimant is 
 
                 dues-paying member of AFSCME.  The combination of 
 
                 those factors calls into question the impartiality 
 
                 of the hearing officer or gives at least the 
 
                 appearance of impropriety due to the fiduciary 
 
                 duty of the hearing officer to AFSCME members.
 
            
 
                    I would like to base this motion on Iowa 
 
                 Administrative Code 343-4.38 as well as Canon 2 
 
                 and Canon 5 of the Code of Judicial Conduct and 
 
                 any and all other matters in case law cited in the 
 
                 brief of Twaddle, T-w-a-d-d-l-e, versus Glenwood 
 
                 State Hospital School, File Number 529223.
 
            
 
                    Deputy Commissioner Walshire:  Mr. Miller, 
 
                 would you raise your right hand to be sworn?
 
            
 
                    Laurence D. Miller, called as a witness, having 
 
                 been first duly sworn, testified as follows:
 
            
 
                    Examination by Deputy Commissioner Walshire:
 
            
 
                 Q.  Mr. Miller, are you indeed a member of AFSCME, 
 
                 which is a labor union within the state of Iowa?
 
            
 
                 A.  Yes, I am.
 
            
 
                 Q.  And what bargaining unit are you in?
 
            
 
                 A.  Local 299.
 
            
 
                 Q.  You're in Local 299, which is a local limited 
 
                 to the geographical area of Woodward State 
 
                 Hospital, is that correct?
 
            
 
                 A.  Right.
 
            
 
                 Q.  And the bargaining unit you're in is a 
 
                 technical bargaining unit in your classification?
 
            
 
                 A.  Yes, it is.
 
            
 
                 Q.  You are not a professional fiscal and staff --
 
            
 
                 A.  No.
 
            
 
                 Q.  -- employee?  Okay.  And you're not in a local 
 
                 called 3450 which I am president of which is a 
 
                 local consisting of technical and professionals in 
 
                 the capitol complex?
 
            
 
                 A.  No, I'm not.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    Deputy Commissioner Walshire:  In light of 
 
                 those answers to the questions, I will have to 
 
                 deny your motion.  I am not in any leadership 
 
                 capacity over this individual, never have been, 
 
                 and specifically have issued a written ruling in 
 
                 the past on this very same motion.  And I will 
 
                 hand this out to the parties at the present time 
 
                 as my ruling.  Mr. Bauer, here's your copy.  And, 
 
                 State, here's your copy.
 
            
 
                    Mr. Bauer:  Thank you, Your Honor.
 
            
 
                    Ms. Lynn:  Thank you.
 
            
 
                    Deputy Commissioner Walshire:  I think it fully 
 
                 sets out the reasons why I feel fully able to hear 
 
                 this case, and if there is any impropriety at all 
 
                 in the system, it's that management has the last 
 
                 word in this agency, not an AFSCME member.  That 
 
                 is, my decisions are appealed de novo to my 
 
                 industrial commissioner, who is a member of the 
 
                 management team and appointed and essentially 
 
                 serves at the pleasure of the governor even though 
 
                 it is for a term, but --
 
            
 
                    Mr. Bauer:  Can I add something?
 
            
 
                    Deputy Commissioner Walshire:  Why, you go 
 
                 ahead.
 
            
 
                    Mr. Bauer:  I don't know what this has bearing 
 
                 on legally, but I guess my response to the motion 
 
                 -- I don't know what your ruling's going to be, 
 
                 but my response to the motion is that I 
 
                 incorporated all those arguments which you have 
 
                 set forth in your ruling.
 
            
 
                    As a sidelight, I guess I don't know whether 
 
                 the attorney general himself is involved in the 
 
                 decision to do this, but it would seem at least as 
 
                 a prospect absolutely that a person who is 
 
                 normally a Democrat running for governor involved 
 
                 in questioning union activity makes an interesting 
 
                 observation as to what his motivations may be.
 
            
 
                    Ms. Lynn:  Yeah, I'm going to move to strike 
 
                 that in view of the fact that you've already ruled 
 
                 on the motion.
 
            
 
                    Deputy Commissioner Walshire:  Well, everything 
 
                 will be a part of the record.  If I move to strike 
 
                 it, it will be part of the record.
 
            
 
                    Mr. Bauer:  I profess my remarks -- I don't 
 
                 know if they have anything to do legally.  I 
 
                 question whether first of all it's any -- it has 
 
                 any valid meaning here anyway, but --
 
            
 
                    Deputy Commissioner Walshire:  I'd also like to 
 
                 -- for the record -- that it's rather interesting 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 that this motion occurs.  I've been involved in 
 
                 union activities for the last four years, heavily 
 
                 involved in them, acting in a leadership capacity 
 
                 and been a member and officer of the local for 
 
                 over two years.  It was only after I issued an 
 
                 adverse decision against the state attorney 
 
                 general's office imposing punitive damages upon 
 
                 the State for unreasonable denial of a claim in 
 
                 March that I started receiving these
 
            reclusal (sic) orders or requests.  I'm -- I hope 
 
            this is not retaliation for that decision.  But I 
 
            can only say that it never happened before that 
 
            decision, and it's happened consistently beginning 
 
            in April soon after this decision occurred.
 
            
 
                    Ms. Lynn:  Your Honor -- I'm sorry.  I thought 
 
                 you were done.
 
            
 
                    Deputy Commissioner Walshire:  I would ask the 
 
                 attorney general's office to consider its own 
 
                 ethics in this matter.  Enough said.
 
            
 
                   Ms. Lynn:  May I state, for the record, Your 
 
                 Honor, that I was present at the staff meeting 
 
                 where this issue was discussed and the particular 
 
                 decision that you're referring to wherein any 
 
                 sanctions may have been ordered was never, never 
 
                 brought up at that meeting in any way in any 
 
                 context.  I believe that the matter turned more on 
 
                 -- I'm not sure when you even became president of 
 
                 the local chapter, but it was at that time it 
 
                 became known at least.
 
            
 
                    Deputy Commissioner Walshire:  It's also 
 
                 interesting in observations is that our deputy 
 
                 commissioners who are a little more conservative 
 
                 in their views are officers of my local and are 
 
                 not asked to
 
            recluse (sic) themselves from any involvement in 
 
            State cases.
 
            
 
                    Ms. Lynn:  I don't know who the other officers 
 
                 are, Your Honor.
 
            
 
                    Deputy Commissioner Walshire:  That probably 
 
                 wasn't discussed either, was it?
 
            
 
                    Ms. Lynn:  No.  I know of at least one other 
 
                 hearing officer that was discussed in terms of his 
 
                 functions in the union, but I don't know of others 
 
                 beyond the two of you.
 
            
 
                    Deputy Commissioner Walshire:  You wouldn't 
 
                 bother to explain why you're limiting your asking 
 
                 to just two individuals in this office?
 
            
 
                    Ms. Lynn:  It was based within the functions in 
 
                 the union.  There was a discussion as to whether 
 
                 mere membership in AFSCME would be enough to 
 
                 request a reclusion.  It was felt that mere 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 membership would not.
 
            
 
                    Deputy Commissioner Walshire:  Due to the fact 
 
                 that you asked me to represent -- some 
 
                 administrative law judges and all the agencies at 
 
                 the capitol complex are represented by my local.  
 
                 All administrative law judges, not just a few, and 
 
                 many of those are members and some are officers of 
 
                 my local, yet no
 
            reclusal (sic) requests are made to those in which 
 
            the State is a part in every one of those cases.
 
            
 
                    Ms. Lynn:  I can assure Your Honor, there is 
 
                 nothing personal in this, especially on my part.
 
            
 
                    Deputy Commissioner Walshire:  I find it hard 
 
                 to believe that.  Let's move on.  Again my 
 
                 decision is de novo to my commissioner, and if 
 
                 there's any impropriety, it will be taken care of 
 
                 in any appeal process, I assume.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            In his written ruling on the motion, Deputy Walshire stated:
 
            
 
                    The undersigned hopes that the recusal request 
 
                 was not motivated by retaliation for any prior 
 
                 proposed decision or a desire to influence the 
 
                 undersigned's proposed decision in this or any 
 
                 other case.  However, even if made with innocent 
 
                 intentions, a recusal request adversely affects 
 
                 the decision making process and should not be 
 
                 frivolously advanced.  After receipt of such a 
 
                 request, a decision maker's impartiality has been 
 
                 maligned whether by design or not....
 
            
 
                    Decision makers in this understaffed agency 
 
                 have enough of a burden to bare (sic) and do not 
 
                 need additional, unnecessary pressures.  The staff 
 
                 of the attorney general's office in its zealous 
 
                 attempt to point out alleged ethical violations of 
 
                 deputy commissioners appears to have overlooked a 
 
                 few ethical considerations themselves.
 
            
 
                 Deputy Walshire then recited Iowa Code of Professional 
 
            Responsibility Disciplinary Rule DR7-102(A), dealing with 
 
            asserting a position merely to harass or maliciously injure 
 
            another, and DR8-102(B), dealing with knowingly making false 
 
            accusations against a judge or other adjudicatory officer.
 
            
 
                 Clearly, such comments show that a personal animosity 
 
            toward the assistant attorney general presenting the recusal 
 
            motion and toward the state of Iowa existed in the deputy's 
 
            mind.  A reading of the transcript and the written ruling 
 
            would leave no doubt that, prior to any evidence being 
 
            presented, the state of Iowa was not enjoying its right to 
 
            have the matter decided by an impartial and unbiased 
 
            decision maker.  Accusations of unethical behavior, of 
 
            conspiracy to pressure a particular decision result, and of 
 
            judge "harassment" indicate bias.  The deputy's verbal 
 
            comments that he "doubted" the motivation behind the filing 
 
            of the recusal motion, coupled with the statement in the 
 
            written ruling that the mere filing of the motion to recuse 
 
            was regarded as maligning his impartiality, also indicate 
 
            bias.
 
            
 
                 It is therefore concluded that Deputy Walshire 
 
            displayed personal bias towards the defendants on the date 
 
            of the hearing, and should have been disqualified from 
 
            hearing the case.  The case should have been reassigned to 
 
            another deputy who did not display such bias.  However, the 
 
            timing of the display of bias was such that the hearing was 
 
            conducted by Deputy Walshire without a determination of 
 
            disqualification by the agency as required by Iowa Code 
 
            17A.17(4).
 
            
 
                 The arbitration decision itself is, by statute, 
 
            reviewed de novo on appeal.  Initially, it is noted that 
 
            Deputy Walshire, both as part of his written ruling on the 
 
            motion to recuse and in his verbal comments at the hearing, 
 
            noted that any impropriety in his presiding over the hearing 
 
            could be corrected on de novo appeal to the Industrial 
 
            Commissioner.  However, any party appearing before a 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            judicial officer, whether the officer is a district court 
 
            judge or an administrative law judge, is entitled to due 
 
            process under both the U. S. Constitution and the Iowa 
 
            Constitution.  In that decision makers in judicial 
 
            proceedings adjudicate the rights and responsibilities of 
 
            citizens and entities in our society with great importance 
 
            and far reaching effects for the parties, it is essential 
 
            that all parties to litigation can rest assured that they 
 
            enter the courtroom or hearing room with an impartial trier 
 
            of fact presiding.  To say that any impartiality or lack of 
 
            due process is not important because it can be corrected 
 
            later on appeal indicates a misunderstanding of the very 
 
            nature of due process.  Justice delayed is justice denied.  
 
            If a party must undergo the expense, the uncertainty, and 
 
            the delay of an appeal to obtain the due process that the 
 
            party was entitled to at the first level of adjudication, 
 
            then our system is not fulfilling its obligation.  If a 
 
            party is aggrieved at the first level of adjudication by a 
 
            biased hearing officier and cannot afford to pursue an 
 
            appeal, the denial of due process would never be addressed.  
 
            A party is entitled to due process at all levels of the 
 
            adjudication process, not just at the appellate level.  It 
 
            is therefore inappropriate to excuse bias by relying on de 
 
            novo appellate review to correct the bias.
 
 
 
                 The deputy's decision will now be reviewed de novo.  
 
            Claimant, 43 years old, with a high school education and 2 
 
            and 1/2 years commercial art institute training, was 
 
            employed by Woodward State Hospital School as a resident 
 
            treatment worker, where his duties included the care and 
 
            supervision of retarded persons and custodial duties.  
 
            Claimant was working the 10:45 p.m. to 6:00 a.m. shift on 
 
            August 7, 1987, when he experienced stomach discomfort and 
 
            began to vomit blood at about 1:00 a.m..  Claimant testified 
 
            he thought he was experiencing indigestion.  Claimant had a 
 
            history of morning nausea, and had had a heart stress test 
 
            administered to him three days before by his physician, with 
 
            a result of no abnormality.  
 
            
 
                 A co-worker called claimant's supervisor and informed 
 
            her of claimant's illness.  Claimant decided to continue 
 
            working, and later washed some laundry barrels.  Claimant 
 
            testified that after this activity he began to experience 
 
            chest pains.  Claimant's supervisor was called two more 
 
            times and on the third call the supervisor told claimant he 
 
            should leave work as soon as a replacement arrived.  There 
 
            was testimony that the hospital was overstaffed that night 
 
            and a replacement was readily available.  However, the 
 
            arrival of the replacement took 20 minutes during which time 
 
            claimant continued to work by folding clothes.
 
            
 
                 Claimant left work at approximately 3:00 a.m., and 
 
            began to drive home, which was 17 miles away.  Claimant 
 
            testified that during this trip he had to stop several times 
 
            because of pain and discomfort and that the trip took over 
 
            an hour.  Claimant collapsed on his front porch where his 
 
            wife found him and took him to the hospital.  At the 
 
            hospital claimant underwent an angioplasty on his left 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            ventricular coronary artery, which was found to be blocked.  
 
            Claimant was diagnosed as having suffered a heart attack.  
 
            Myocardial infarction or death of heart muscle tissue, had 
 
            occurred. 
 
            
 
                 Claimant had been experiencing chest pains for a period 
 
            of 3 or 4 weeks prior to his heart attack on August 7, 1987, 
 
            and medical records indicated that claimant experienced 
 
            chest pain as early as September of 1986.  Claimant also had 
 
            a family history of heart disease and claimant had high 
 
            blood pressure.  Claimant was also a smoker. 
 
            
 
                 After his August 7, 1987 heart attack claimant was off 
 
            work until October of 1987, when he resumed his duties.  
 
            Claimant continued to experience periodic chest pain.  On 
 
            May 10, 1988, claimant suffered a second heart attack while 
 
            mushroom hunting.  Claimant was hospitalized and another 
 
            angioplasty performed.  Claimant's blockage was found to be 
 
            located in a different part of the heart than was involved 
 
            in the August 7, 1987, heart attack.  One of claimant's 
 
            doctors, Mark McGaughey, M.D., described the May 10, 1988, 
 
            heart attack as less severe than the August 7, 1987, heart 
 
            attack, but stated that both heart attacks resulted in the 
 
            death of heart tissue. 
 
            
 
                 Dr. McGaughey stated that claimant, as a result of his 
 
            August 7, 1987, heart attack, should be restricted from 
 
            heavy work but could perform desk work.  F.S. Downs, M.D., 
 
            also restricted claimant from returning to his former work 
 
            at Woodward State Hospital School and restricted claimant to 
 
            non-stress work.
 
            
 
                 Claimant seeks an award under the holding of Varied 
 
            Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  
 
            Under this case, a claimant with a prior heart condition is 
 
            not required to show the unusual stress required by Sondag 
 
            v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  Rather, 
 
            under Varied Enterprises, claimant may be able to show that 
 
            his present condition arose out of his employment if the 
 
            evidence shows that claimant continued working after the 
 
            onset of heart attack symptoms, and that the continuation of 
 
            work contributed to the impairment caused by the heart 
 
            attack.  
 
            
 
                 Defendants argue on appeal that claimant here, unlike 
 
            the claimant in Varied Enterprises, was not impelled to 
 
            remain at work once his heart attack symptoms occurred.  
 
            Defendants points out that claimant was not told he had to 
 
            remain at work, and in fact claimant was readily given 
 
            permission to leave once he requested it, although a delay 
 
            did occur while a replacement was found.  
 
            
 
                 Although the Varied Enterprises case did involve a 
 
            truck driver who felt impelled to continue working after the 
 
            onset of heart attack symptoms because of his probationary 
 
            status with his employer, there is no explicit requirement 
 
            in that case that a worker feel impelled to remain at work 
 
            because of a fear of losing one's job.  Indeed, the Varied 
 
            Enterprises court implied that such compelling 
 
            circumstances, although present in that case, were not a 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            prerequisite to compensation:
 
            
 
                    Moreover, we view the example set forth in the 
 
                 Larson treatise as only having reference to one 
 
                 type of situation which strongly demonstrates a 
 
                 causal contribution to employment.  It does not 
 
                 purport to establish an absolute requirement that 
 
                 a claimant be motivated to continue working in the 
 
                 face of a known health deprivation in order to 
 
                 produce a compensable situation.
 
            Varied Enterprises, at 409. 
 
            
 
                 A worker who is conscientious may delay seeking medical 
 
            treatment simply because of a self-imposed work ethic that 
 
            dictates against taking sick leave unless absolutely 
 
            necessary.  If this delay results in additional injury, the 
 
            injury does arise out of the employment.  This is especially 
 
            true here, where there is every indication that claimant did 
 
            not recognize he was experiencing a heart attack, but 
 
            instead felt he was suffering indigestion.  Thus, the 
 
            essential inquiry under Varied Enterprises is whether 
 
            claimant underwent additional stress resulting in impairment 
 
            by continuing to work after the onset of heart attack 
 
            symptoms.  Compensability hinges on whether claimant's 
 
            continued work activity substantially contributed to his 
 
            condition, and not whether claimant felt impelled to 
 
            continue working or merely chose to continue working.
 
            
 
                 The stress resulting from continuing to work can take 
 
            the form of additional physical stress, mental stress, or an 
 
            increase in impairment caused by delaying the acquisition of 
 
            medical assistance.  In this case, claimant's decision to 
 
            continue working resulted in claimant washing out heavy 
 
            laundry barrels, which then resulted in chest pains.  
 
            However, Dr. McGaughey opined that although additional 
 
            physical stress during the early stages of a heart attack 
 
            may increase impairment, that was not indicated in this 
 
            case.
 
            
 
                 Dr. McGaughey placed greater emphasis on the delay in 
 
            obtaining medical treatment.  Claimant testified that he 
 
            left work approximately one and one half to one and three 
 
            quarters hours after he first experienced symptoms.  
 
            Claimant then drove home, a trip that took from one hour to 
 
            one hour and fifteen minutes.  Claimant was admitted to 
 
            Boone County Hospital, where he remained for an hour and 
 
            forty-five minutes before being transferred to Mercy 
 
            Hospital in Des Moines, where he was admitted at 7:35 a.m.  
 
            Dr. McGaughey testified that heart attack patients that are 
 
            treated within one and a half hours and not beyond four 
 
            hours of the blockage will suffer less damage because beyond 
 
            four hours, the heart muscle tissue will have already died.
 
            
 
                 Thus, claimant was not seen by a physician until 
 
            approximately three hours after his symptoms first occurred.  
 
            Claimant was then transferred to another hospital and 
 
            admitted before the angioplasty itself was performed.  The 
 
            three hour delay represented by the time claimant continued 
 
            to work after the onset of symptoms and his drive home meant 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            that even an angioplasty could do little to help claimant, 
 
            since much of his heart tissue apparently died during the 
 
            delay.  Dr. McGaughey opined that this delay resulted in 
 
            additional, irreversible damage to claimant's heart tissue.  
 
            The damage to claimant's heart caused by the delay in 
 
            obtaining treatment while claimant continued to work is an 
 
            injury arising out of his employment.
 
            
 
                 The second issue on appeal is to what extent claimant's 
 
            present disability stems from his work related heart attack.  
 
            Claimant suffered two heart attacks.  It has been determined 
 
            above that the heart attack of August 7, 1987, was work 
 
            related.  Claimant's second heart attack, while mushroom 
 
            hunting on May 6, 1988, was clearly related.  Claimant went 
 
            back to work at his old job after his first heart attack.  
 
            Claimant's restrictions were imposed after his second heart 
 
            attack.
 
            
 
                 Dr. McGaughey stated that claimant's second heart 
 
            attack was unrelated to the first heart attack, and pointed 
 
            out that a separate blood vessel was involved in the May 6, 
 
            1988 heart attack that was not involved in the August 7, 
 
            1987, heart attack.  However, Dr. McGaughey attributed both 
 
            heart attacks to rapidly progressive coronary disease.  Dr. 
 
            McGaughey also testified that claimant suffered a 20 percent 
 
            permanent partial impairment of the body as a result of the 
 
            August 7, 1987, heart attack.  Dr. McGaughey's statements as 
 
            to restricting claimant from heavy work were also made in 
 
            response to a question about the effects of the August 7, 
 
            1987, heart attack.  Dr. Brown recommended claimant seek a 
 
            less stressful job after the first heart attack and before 
 
            the second heart attack occurred.  The ejection fraction of 
 
            45 percent of the heart, which formed the basis for Dr. 
 
            McGaughey's rating, was known within six weeks after 
 
            claimant's first heart attack.  Dr. McGaughey did not 
 
            ascribe any rating of impairment or work restrictions to the 
 
            May 6, 1988, heart attack.  The heart damage that forms the 
 
            basis of claimant's present condition existed prior to the 
 
            May 6, 1988 heart attack, and was clearly caused by the 
 
            August 7, 1987, heart attack.  There is no indication that 
 
            claimant's less severe heart attack on May 6, 1988, caused 
 
            any permanent impairment.  Claimant's present impairment is 
 
            attributable to his August 7, 1987, heart attack.
 
            
 
                 The nature and extent of claimant's disability is to be 
 
            measured industrially.  Claimant is 43 years old.  This age 
 
            normally represents a point in a worker's career when 
 
            earnings are highest.  Claimant's education beyond high 
 
            school is minimal, and limited to the field of commercial 
 
            art.  Claimant's work experience consists of retail 
 
            management and his work as a resident treatment worker.  
 
            Claimant's doctors have indicated he cannot return to his 
 
            work as a resident treatment worker.
 
            
 
                 Claimant has suffered a 20 percent permanent partial 
 
            impairment of his body.  Claimant has restrictions against 
 
            heavy work, or stressful work.  Claimant has not been 
 
            offered alternative employment within his restrictions by 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            the employer.  However, claimant has made no conscientious 
 
            efforts to find substitute employment on his own.
 
            
 
                 There is no medical evidence that claimant is totally 
 
            incapable of performing work.  Claimant's rating of physical 
 
            impairment is less than total, and claimant has not pled the 
 
            odd lot doctrine.  Even if the odd lot doctrine had been 
 
            pled, claimant has not shown sufficient attempts to find 
 
            employment to invoke the burden-shifting effect of the odd 
 
            lot doctrine.  Claimant is capable of performing work within 
 
            his restrictions.  Claimant is not permanently totally 
 
            disabled. 
 
            
 
                 Based on these and all other appropriate factors for 
 
            determining industrial disability, claimant is determined to 
 
            have an industrial disability of 45 percent. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  On August 7, 1987, claimant suffered a heart attack 
 
            in the course of his employment at Woodward State Hospital.
 
            
 
                 2.  Claimant continued working for over 2 hours while 
 
            experiencing severe vomiting with blood and chest pains.
 
            
 
                 3.  Claimant left Woodward at 3:30 a.m. and returned 
 
            home, a trip which took over an hour, and was immediately 
 
            transported by his wife to the hospital.
 
            
 
                 4.  Claimant underwent angioplasty surgery to remove 
 
            the blockage in one of his coronary arteries but surgery was 
 
            too late to prevent extensive heart damage.
 
            
 
                 5.  It is probable that had claimant been treated 
 
            sooner, heart damage would have been significantly less.
 
            
 
                 6.  On May 10, 1988, claimant experienced a second 
 
            heart attack as a result of a blockage of a different artery 
 
            than the artery involved in the August 1987 attack.
 
            
 
                 7.  The work injury or heart attack of August 7, 1987, 
 
            was a cause of a 20 percent permanent partial impairment to 
 
            the body as a whole and of permanent restrictions upon 
 
            claimant's physical activity consisting of no heavy lifting 
 
            or work or stressful employment of any kind.
 
            
 
                 8.  Claimant is 43 years of age and has a high school 
 
            education with some advanced art training.
 
            
 
                 9.  Claimant's restrictions prevent him from returning 
 
            to the work for which he is best suited given his work 
 
            history and education.
 
            
 
                 10. Claimant has not been offered any alternative 
 
            employment by the State of Iowa.
 
            
 
                 11. Claimant has shown little motivation to seek 
 
            alternative employment or vocational rehabilitation on his 
 
            own.
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 12. The work injury and heart attack of August 7, 1987 
 
            and resulting permanent partial impairment and work 
 
            restrictions were a cause of a 45 percent loss of earning 
 
            capacity.  
 
            
 
                 13. The medical expenses listed in the prehearing 
 
            report constitute reasonable and necessary treatment of the 
 
            work injury on August 7, 1987, except for the expenses 
 
            relating to the treatment of claimant's heart attack on Ma 
 
            10, 1988, namely: The Mercy Care on May 10 through May 16, 
 
            1988 ($8,167.25); the care of Dr. Downs on May 10, 1988 
 
            ($74.00); and the care the Cardiology Associates from May 
 
            11, 1988 through May 15, 1988 ($2,819.00).
 
            
 
                                CONCLUSIONs OF LAW
 
            
 
                 Claimant's continued work on August 7, 1987, after the 
 
            onset of heart attack symptoms was an injury arising out of 
 
            and in the course of his employment.
 
            
 
                 Claimant's work injury of August 7, 1987 was a 
 
            substantial cause of claimant's present impairment.
 
            
 
                 Claimant has an industrial disability of 45 percent.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                           
 
            
 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            OrDER
 
            
 
                 THEREFORE, it is ordered: 
 
            
 
                 That defendants shall pay to claimant two hundred 
 
            twenty-five (225) weeks of permanent partial disability 
 
            benefits at the rate of two hundred twenty-one and 08/100 
 
            dollars ($221.08) per week from October 27, 1987.
 
            
 
                 That defendants shall pay claimant the medical expenses 
 
            listed in the prehearing report except those expenses 
 
            relating to treatment of the May 1988 heart attack set forth 
 
            in finding number 6 above.  Claimant shall be reimbursed if 
 
            he has paid those expenses.  Otherwise, defendants shall pay 
 
            the provider directly subject to any attorney lien 
 
            claimant's attorney may have for these expenses.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 That defendants shall receive credit for previous 
 
            payment of benefits under a non-occupational group insurance 
 
            plan, if applicable and appropriate under Iowa Code section 
 
            85.38(2).
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to Division of Industrial Services Rule 343-4.33 
 
            and specifically the costs listed by claimant's attorney in 
 
            the prehearing report, exhibit I.
 
            
 
                 That defendants shall file an activity report on the 
 
            payment of this award as requested by this agency pursuant 
 
            to Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of May, 1990.
 
            
 
            
 
            
 
            
 
                                     
 
            ____________________________________
 
                                               JON E. HEITLAND
 
                                     CHIEF DEPUTY INDUSTRIAL 
 
            COMMISSIONER
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            309 Court Ave., Ste. 500
 
            Des Moines, Iowa 50309
 
            
 
            Ms. Eleanor E. Lynn
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
                
 
 
 
                                            1108.10
 
                                            Filed June 1, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAWRENCE "BUD" MILLER,
 
         
 
              Claimant,
 
                                                      File No. 853647
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         WOODWARD STATE HOSPITAL SCHOOL,
 
                                                      D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.10 - Causation & Heart Attacks
 
         
 
              Causal connection found under theory of Varied Enterprises, 
 
         Inc. v. Sumner, where a resident treatment worker at Woodward 
 
         State Hospital chose to continue working in the face of serious 
 
         symptomatology due to demands of his employment.  He knew that he 
 
         had to be replaced and chose to remain even though he could have 
 
         been replaced by available staff.  It was held that a 
 
         conscientious worker whose suffers a heart attack after choosing 
 
         to remain working can be compensated in the same manner as those 
 
         who choose to remain working out of fear of losing their jobs as 
 
         in the case of Varied Enterprises.
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2202,1100,51108.10
 
                                          51803,2906
 
                                          Filed May 31, 1990
 
                                          JON E. HEITLAND
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LAWRENCE 'BUD' MILLER,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.853647
 
            WOODWARD STATE HOSPITAL       :
 
            SCHOOL,
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2202, 1100
 
            Held that claimant who experienced a heart attack at work 
 
            and who kept on working after onset of symptoms, which delay 
 
            in seeking treatment resulted in substantial death of heart 
 
            tissue, suffered an injury arising out of his employment.  
 
            Varied Enterprises clarified as not requiring that the 
 
            claimant feel impelled to continue working to make injury 
 
            compensable.  Rather, merely continuing to work even absent 
 
            impelling circumstances makes the increased heart damage an 
 
            injury arising out of the employment.  
 
            
 
            5-1108.10
 
            The record showed that claimant's present disability was 
 
            attributable to his work related heart attack and not to his 
 
            later non-work related heart attack.
 
            
 
            5-1803
 
            Claimant, 43 years old, with high school plus 2 years art 
 
            school education, work experience limited to retail work and 
 
            institutional work, with 20 percent body as a whole 
 
            impairment, was awarded industrial disability of 45 percent.  
 
            Although defendants had not found substitute work for 
 
            claimant, claimant had made no effort to find alternative 
 
            employment. 
 
            
 
            2906
 
            Due to bias, another deputy should have been assigned to 
 
            hear the case.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES R. McCOOL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 853672
 
            CEDAR VALLEY CORP.,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, James R. McCool, against his employer, Cedar 
 
            Valley Corporation, and its insurance carrier, Aetna 
 
            Casualty & Surety Company, defendants.  The case was heard 
 
            on March 13, 1990, in Des Moines, Iowa at the office of the 
 
            industrial commissioner.  The record consists of the 
 
            testimony of claimant, as well as the testimony of Henry 
 
            Jannenga; claimant's spouse, Loretta McCool; and Virginia 
 
            Robinson.  Additionally, the record consists of joint 
 
            exhibits 1-14, 18, 19 and 21.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            is entitled to permanent partial disability benefits; and 2) 
 
            at what rate claimant is to be compensated.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was hired in March of 1987 as a construction 
 
            laborer.  He had various duties to perform.  In week ending 
 
            March 28, 1987, claimant was assigned to the yard for 
 
            equipment cleaning.  He was compensated at the rate of $5.00 
 
            per hour.  For the next three weeks no work was available to 
 
            claimant.  During the week ending April 25, 1987, claimant 
 
            traveled to Missouri and worked on a federal construction 
 
            project.  He was compensated at the rate of $15.93 per hour 
 
            for 21 hours.  Claimant continued to work on the 
 
            construction project for the next three weeks.  For week 
 
            ending May 2, 1987, claimant worked 45.5 hours, for week 
 
            ending May 9, 1987, claimant worked 47.5 hours, and for week 
 
            ending May 16, 1987, claimant worked 44 hours.  Claimant was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injured on May 14, 1987, when he attempted to throw a large 
 
            mat onto the back of a truck.
 
            
 
                 Claimant was treated by Arnold E. Delbridge, M.D., an 
 
            orthopedic surgeon.  In his report of April 17, 1989, Dr. 
 
            Delbridge opined:
 
            
 
                 Mr. McCool, on 1-31-89, was found to have a loss 
 
                 of 20 degrees of left side to side bending, a loss 
 
                 of 10 degrees of right side to side bending of the 
 
                 thoracolumbar spine, and his rotation was within 
 
                 normal limits.  Flexion and extension were within 
 
                 normal limits.  He was noted to be up to 24-26 
 
                 pounds on his lifting.
 
            
 
                 On 3-8-89, Mr. McCool had a slightly different 
 
                 loss of range of motion in that he had a loss of 
 
                 10 degrees of extension, a loss of 10 degrees of 
 
                 left side to side bending and right side to side 
 
                 bending, and rotation was once again within normal 
 
                 limits.
 
            
 
                 Considering that Mr. McCool has spondylolysis with 
 
                 spondylolisthesis, has considerable stiffness of 
 
                 his back in spite of vigorous therapy and work 
 
                 hardening, and considering that his spondylolysis 
 
                 and spondylolisthesis was aggravated to the extent 
 
                 that he has some spasms and permanent loss of 
 
                 range of motion, I concluded that he had an 
 
                 impairment of 10% of the body as a whole.
 
            
 
                 Eight percent of his impairment is due to his work 
 
                 accident, and two percent is due to his car 
 
                 accident.
 
            
 
                 Mr. McCool is at his final status as of 3-8-89.
 
            
 
                 Mr. McCool will not be able to return to his 
 
                 previous employment.  In all likelihood he should 
 
                 not have a maximal lift more than 25 pounds and 
 
                 his repetitive lifting should be in the range of 
 
                 15-20 pounds.  He should be allowed to take a 
 
                 break periodically from physical work.  He will 
 
                 need breaks of 15 minutes or so every 1 1/2-2 
 
                 hours where he can sit or walk around.  He can sit 
 
                 for up to 1 1/2 hours at a time with a 15 minute 
 
                 break of moving about.
 
            
 
                 It is possible that Mr. McCool may at some point 
 
                 in the future, related to his work injury of 1987, 
 
                 and to his auto accident of 1988, require a lumbar 
 
                 procedure, specifically a spinal fusion.  The 
 
                 neccesity [sic] for a spinal fusion would be 
 
                 appropriated on the same basis as his impairment.
 
            
 
                 Since November of 1989, claimant had been employed as a 
 
            janitor at Elk Run Truck Plaza.  He was paid $4.50 per hour.  
 
            His duties included dusting, janitorial work, cleaning 
 
            restrooms, and showers, mopping floors, and emptying ash 
 
            trays.  Claimant was not required to buff floors.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 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."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden, 
 
            388 N.W.2d 181 (Iowa 1980).
 
            
 
                 In the case at hand, claimant has spondylolysis with 
 
            spondylolisthesis and stiffness in his back.  He is 
 
            restricted from lifting more than 25 pounds and from 
 
            repetitive lifting of 15-20 pounds.  He is also required to 
 
            take regular breaks.  According to Dr. Delbridge, claimant 
 
            has a 10 percent functional impairment with eight percent 
 
            attributable to this work injury.
 
            
 
                 Claimant is employed as a janitor.  This is a position 
 
            which is similar to the position he had previously held at 
 
            John Deere.  There is a transfer of previous skills.  
 
            Claimant is capable of performing his current job duties.  
 
            His rate of pay is considerably less than the rate of pay he 
 
            has been paid by defendant-employer.  Due to his work 
 
            restrictions, claimant's earning capacity has been reduced.  
 
            It is the determination of the undersigned that claimant has 
 
            a 20 percent permanent partial disability.  Sixteen percent 
 
            is attributable to this injury.  Four percent is 
 
            attributable to injuries other than this work injury.  
 
            Therefore, claimant is entitled to 80 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 The next issue to address is the rate to be used for 
 
            calculating weekly benefits.
 
            
 
                 Defendants maintain claimant is a seasonal employee 
 
            under section 85.36(9).  Section 85.36(9) provides:
 
            
 
                 In occupations which are exclusively seasonal and 
 
                 therefore cannot be carried on throughout the 
 
                 year, the weekly earnings shall be taken to be 
 
                 one-fiftieth of the total earnings which the 
 
                 employee has earned from all occupations during 
 
                 the twelve calendar months immediately preceding 
 
                 the injury.
 
            
 
      r by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                 The emphasis here is on the amount the claimant would 
 
            have earned had he been employed by the employer for the 13 
 
            weeks preceding the injury.  Claimant did work the following 
 
            weeks:
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            1.  3/28/87     27 hrs. x $5.00 =        $  135.00
 
            
 
                 2.  4/25/87     21 hrs. x $14.65 =          307.65
 
            
 
                 3.  5/02/87     45.4 hrs. x $14.65 =        665.11
 
            
 
                 4.  5/09/87     47.5 hrs. x $14.65 =        695.87
 
            
 
                 5.  5/16/87     44 hrs. x $14.65 =          644.60
 
            
 
                                                          $2,313.23
 
            
 
                                                              î
 
            
 
                                                           5 weeks
 
            
 
                                                          _________
 
            
 
                                                         $  462.64 avg.
 
            
 
                                                         $  292.85 w/c 
 
            rate
 
            
 
                 No work was available with the exception of the week 
 
            ending March 28, 1987, and for the weeks ending April 25, 
 
            1987, May 2, 1987, May 9, 1987 and May 16, 1987.
 
            
 
                 Therefore, the weekly wage rate is calculated as above.  
 
            At the time of the injury, claimant was married with three 
 
            children.  Using the Guide to Iowa Workers' Compensation 
 
            Claim Handling, July 1, 1986, claimant is entitled to a 
 
            weekly benefit rate of $292.85 per week.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay eighty (80) weeks of permanent 
 
            partial disability benefits at the weekly rate of two 
 
            hundred ninety-two and 85/l00 dollars ($292.85) per week 
 
            commencing on March 9, 1989.
 
            
 
                 Defendants are to pay one hundred (100) weeks of 
 
            healing period benefits at the weekly rate of two hundred 
 
            ninety-two and 85/l00 dollars ($292.85) per week for the 
 
            period from May 15, 1987 to March 8, 1989.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            6th Flr  lst National Bldg
 
            P O Box 2634
 
            Waterloo  IA  50704
 
            
 
            Ms. Lorraine J. May
 
            Mr. Timothy C. Hogan
 
            Attorneys at Law
 
            4th Floor  Equitable Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-3000
 
                           Filed January 22, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES R. McCOOL,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 853672
 
            CEDAR VALLEY CORP.,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-3000
 
            Claimant's weekly benefit rate was calculated pursuant to 
 
            section 85.36(6)-(7).  Claimant, who was a construction 
 
            worker, was not a seasonal worker.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARILYN STEWARD,                              File No. 853938
 
         
 
              Claimant,                             A R B I T R A T I O N
 
         
 
         vs.                                           D E C I S I O N
 
         
 
         WILSON FOODS CORPORATION,                        F I L E D
 
         
 
              Employer,                                  FEB 06 1990
 
              Self-Insured,
 
              Defendant.                             INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Marilyn 
 
         Steward against her employer Wilson Foods Corporation.  The case 
 
         was heard and fully submitted at Storm Lake, Iowa on September 
 
         14, 1989.  The record in the proceeding consists of testimony 
 
         from Marilyn Steward and Ron Liebolt.  The record also contains 
 
         jointly offered exhibits 1 through 27.
 
         
 
                                      ISSUES
 
         
 
              The only issue in the case is determination of claimant's 
 
         entitlement to compensation for permanent partial disability.
 
         
 
                               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.
 
         
 
              Marilyn Steward is a 37-year-old unmarried woman who is a 
 
         1971 graduate of Cherokee High School.  She has lived in 
 
         Cherokee, Iowa all of her life.
 
         
 
              Prior to commencing employment with Wilson Foods in 1979, 
 
         she had worked as a waitress, nurse's aide, gas station attendant 
 
         and performed several other short-term jobs.
 
         
 
              Steward was employed by Wilson Foods on April 9, 1979.  
 
         X-rays taken as part of her preemployment physical examination 
 
         showed her lumbar spine to be normal (exhibit 1, page 6).  In 
 
         early 1985, she injured her back at work and was off work 
 
         (exhibit 4, page 1; exhibit 26).  She also had back complaints 
 
         and complaints of numbness affecting the left side of her body in 
 
         1986 (exhibit 4, pages 2 and 3).  Throughout most of claimant's 
 
         employment with Wilson, she has worked primarily in the press 
 
         room.  Her duties have included boxing packages of hot dogs, 
 
         taking smoked meat off the "tree," running the cryvac and boxing 
 
         meat for shipping.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On May 22, 1987, Steward was operating the banding machine. 
 
         Claimant stated that while attempting to level it, she injured 
 
         her back.  Steward was taken to Sioux Valley Hospital where she 
 
         was diagnosed as having a compression fracture of the second 
 
         lumbar vertebra.  She remained hospitalized under the treatment 
 
         of K. 0. Garner, M.D., until June 7, 1987.  After her release 
 
         from the hospital, she was placed into physical therapy until 
 
         October 8, 1987 (exhibits 3 and 5).
 
         
 
              Claimant was referred to orthopaedic surgeon M. E. Wheeler, 
 
         M.D.  Dr. Wheeler, after following claimant's recovery, assigned 
 
         a permanent impairment rating of 10 percent of the whole person 
 
         as a result of the compression fracture.  He recommended that she 
 
         be permanently restricted from lifting more than 20 pounds, from 
 
         forced flexion, and from repetitive bending or stooping (exhibit 
 
         6).
 
         
 
              Claimant was evaluated by Dennis L. Johnson, M.D., a Sioux 
 
         Falls, South Dakota orthopaedic surgeon.  Dr. Johnson rated 
 
         claimant as having an 11 percent permanent impairment (exhibit 9, 
 
         page 6).  He also found claimant to have mild osteoporosis 
 
         (exhibit 9, page 3).  Under Dr. Johnson's direction, claimant was 
 
         evaluated at the Midwest Back Center, Inc., in Sioux Falls, South 
 
         Dakota where it was determined that claimant could perform 
 
         lifting in the range of 20-25 pounds (exhibit 10, page 6).
 
         
 
              Claimant was also evaluated at the Industrial Injury Clinic 
 
         at Neenah, Wisconsin where it was concluded that she had a 
 
         permanent impairment in the range of 10 percent and that her 
 
         activity restrictions should consist of a 50-pound maximum 
 
         lifting limit and a 25-pound limit for frequent lifting (exhibit 
 
         11).
 
         
 
              Claimant was also evaluated by Mason City, Iowa orthopaedic 
 
         surgeon A. J. Wolbrink, M.D.  Dr. Wolbrink rated claimant as 
 
         having a 10-12 percent permanent impairment and agreed with the 
 
         activity restrictions of a 50-pound maximum lifting limit and a 
 
         25-pound limit for frequent lifting (exhibit 12).
 
         
 
              Claimant stated that her series of treatment had included 
 
         wearing a back brace for a time as well as physical therapy.  She 
 
         was eventually released to return to work and began working June 
 
         20, 1988.  She now works for Wilson in the press room performing 
 
         labeling and some other jobs.  Steward stated that during 1989 
 
         she had worked all but approximately three days as of the date of 
 
         hearing.  She worked more than 50 weeks during 1988 (exhibit 23). 
 
         Claimant stated that she intends to continue her employment at 
 
         Wilson, but would like to quit and go into some other type of 
 
         work within the next five to ten years because of her general 
 
         health and back.  Claimant stated that the physicians she has 
 
         seen have generally recommended that she not return to work at 
 
         Wilson.
 
         
 
              Claimant stated that she currently works at one of the lower 
 
         pay brackets in the plant and that she is unable to perform 
 
         higher paying jobs due to the restrictions the doctors have 
 
         recommended. Claimant stated that at home she has ceased 
 
         activities such as mowing the lawn, scooping snow, and washing 
 
         the car due to her back.  Claimant stated that she is fourth or 
 
         fifth in seniority in the press room and has not attempted to bid 
 
         a job outside of the press room since her injury.  She stated 
 
         that prior to the time of the injury she had worked in other 
 
         departments during periods of layoffs.  Claimant stated that the 
 
         reduction in her annual earnings since 1983 is a result of a 
 
         plant-wide pay reduction. Claimant stated that since the injury 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         she has worked in spite of the pain which she experiences.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Ron Liebolt, vice president of the local union at the Wilson 
 
         plant, stated that if claimant did not have medical restrictions 
 
         she would have sufficient seniority to bid into higher paying 
 
         jobs at the plant.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 22, 1987 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Prior to the time of this injury, claimant did have some 
 
         back difficulties, but she had continued to be capable of 
 
         performing relatively heavy work.  She then suffered a 
 
         compression fracture. The general consensus of the physicians 
 
         places her permanent impairment as a result of that fracture in 
 
         the range of 10 percent of the whole person.  The diversity of 
 
         their activity restrictions is not great.  They seem to center 
 
         around a maximum lifting limit of 50 pounds and a limit of no 
 
         more than 25 pounds for repetitive lifting.  The doctors appear 
 
         to have placed these restrictions upon claimant's activities due 
 
         to the residuals of the compression fracture, rather than any 
 
         other particular condition.  It is therefore determined that the 
 
         injury of May 22, 1987 is a proximate cause of the disability 
 
         which currently afflicts claimant with regard to her back.  There 
 
         is no evidence in the record which clearly establishes the 
 
         existence of any preexisting disability affecting claimant's back 
 
         or a means of apportioning any possible preexisting disability 
 
         between that which might have preexisted and that which was 
 
         caused by,the May 22, 1987 injury.
 
         
 
              The parties stipulated that any disability should be 
 
         evaluated industrially and that compensation for permanent 
 
         partial disability was payable commencing June 20, 1988. it was 
 
         further stipulated that the employer is entitled to credit for 
 
         52.5 weeks of permanent partial disability compensation which had 
 
         been paid prior to the date of healing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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, 11211 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's actual earnings have not been greatly, if at all, 
 
         affected by her injury and activity restrictions.  The change in 
 
         actual earnings is not, however, the sole criteria upon which an 
 
         award of industrial disability is made.  Claimant now has 
 
         substantial activity restrictions.  It is unlikely that she would 
 
         be able to work as a nurse's aide in view of the handling of 
 
         patients which is normally required in those positions.  The 
 
         employer's decision to continue claimant's employment has 
 
         prevented claimant from being forced back into the labor market. 
 
         Accordingly, she has not experienced the major reduction in 
 
         actual earnings which would likely occur if she were to lose her 
 
         employment at Wilson Foods.  Her activity restrictions make her 
 
         unable to perform many of the jobs at Wilson, including many of 
 
         those which pay higher than the one she currently performs.  In 
 
         this case, the activity restrictions and claimant's educational 
 
         history of less than average academic achievement in high school 
 
         are two of the more pertinent factors of industrial disability 
 
         which most greatly affect this case.  When all the factors of 
 
         industrial disability are considered, it is determined that 
 
         Marilyn Steward has a 20 percent permanent partial disability as 
 
         a result of the May 22, 1987 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Marilyn Steward is a resident of the state of Iowa 
 
         employed by Wilson Foods Corporation at Cherokee, Iowa.
 
              
 
              2.  On May 22, 1987, Steward suffered a compression fracture 
 
         of her second lumbar vertebra as a result of attempting to lift a 
 
         heavy piece of equipment as part of her duties at the Wilson 
 
         plant.
 
         
 
              3.  As a result of that compression fracture, claimant has a 
 
         10 percent permanent partial impairment of the whole person and 
 
         permanent medically imposed restrictions against ever lifting 
 
         more than 50 pounds or lifting more than 25 pounds on a frequent 
 
         basis.
 
         
 
              4.  Marilyn Steward has experienced a 20 percent loss of her 
 
         earning capacity as a result of the May 22, 1987 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Marilyn Steward is entitled to recover 100 weeks of 
 
         compensation for permanent partial disability payable commencing 
 
         June 20, 1988 at the stipulated rate of $220.30 per week pursuant 
 
         to Iowa Code section 85.34(2)(u).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that Wilson Foods Corporation pay 
 
         Marilyn Steward one hundred (100) weeks of compensation for 
 
         permanent partial disability at the stipulated rate of two 
 
         hundred twenty and 30/100 dollars ($220.30) per week payable 
 
         commencing June 20, 1988.
 
         
 
              IT IS FURTHER ORDERED that the employer is entitled to 
 
         credit for all permanent partial disability compensation paid 
 
         prior to hearing and shall pay the remaining unpaid balance in a 
 
         lump sum together with interest pursuant to Iowa Code section 
 
         85.30 computed from the date each payment came due until the date 
 
         of actual payment.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the employer pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that the employer file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 6th day of February, 1990.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steve Hamilton
 
         Attorney at Law
 
         606 Ontario Street
 
         P.O. Box 188
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         P.O. Box 535
 
         Cherokee, Iowa  51012
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed February 6, 1990
 
                                            MICHAEL G. TRIER
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARILYN STEWARD,
 
         
 
              Claimant,                                File No. 853938
 
         
 
         vs.                                        A R B I T R A T I 0 N
 
         
 
         WILSON FOODS CORPORATION,                     D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1803
 
         
 
              Thirty-seven-year-old single woman with below average 
 
         aptitude for academic pursuits was awarded 20 percent permanent 
 
         partial disability where a compression fracture had left her with 
 
         a permanent impairment rating of 10 percent and restrictions 
 
         against lifting more than 25 pounds on a repetitive basis or 50 
 
         pounds under any circumstances.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MYRTLE DARLENE STRAYER,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 853971
 
            KOSSUTH COUNTY HOSPITAL,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            PHICO INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Myrtle Strayer, against her employer, Kossuth 
 
            County Hospital, and its insurance carrier, Phico Insurance 
 
            Company, defendants.  The case was heard on October 16, 1991 
 
            in Storm Lake, Iowa.  The record consists of the testimony 
 
            of claimant.  The record also consists of the testimony of 
 
            Glenn Strayer, spouse, Timothy E. Lighter, President and 
 
            Publisher of the Algona Reminder, Sandy Hentges, and Irene 
 
            Strayer.
 
            
 
                 Additionally, the record consists of claimant's 
 
            exhibits A pages 1-181, B pages 1 & 2, C pages 1-4, C pages 
 
            13-47, C pages 51-52, D, G, and defendants' exhibits 1-6 and 
 
            10-15.  It is noted that many of the exhibits were nearly 
 
            impossible to read.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent disability 
 
            benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            pursuant to section 85.27;
 
            
 
                 5.  Whether claimant is entitled to penalty benefits 
 
            pursuant to section 86.13; and,
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 6.  Whether defendants are entitled to a credit for 
 
            benefits paid.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant graduated from high school in 1957.  She had 
 
            three children born during her first marriage.  From 1957 to 
 
            1977, claimant was a full-time homemaker.  Claimant is 53 
 
            years old.  She had a laminectomy in 1972.
 
            
 
                 Claimant returned to the job market in 1977 when she 
 
            commenced employment with Hood's Bakery Department, as a 
 
            full-time baker.
 
            
 
                 Subsequent to her employment at the bakery, claimant 
 
            engaged in other jobs.  She worked as a short order cook, an 
 
            assembler in a production plant, a waitress, a hostess, she 
 
            owned her own restaurant, she cleaned homes, and folded 
 
            newspapers.
 
            
 
                 On March 13, 1986, claimant began her employment with 
 
            defendant-employer.  She started as a part time employee, 
 
            but after four months, she engaged in full time employment.  
 
            Her duties included cleaning rooms, dusting, cleaning 
 
            commodes, scrubbing, buffing floors, and vacuuming carpets.
 
            
 
                 Claimant experienced back pain and or strain from 1982 
 
            until the date of her alleged injury.
 
            
 
                 On April 21, 1987, claimant was vacuuming.  She bent 
 
            over an Electrolux vacuum cleaner.  As she straightened up, 
 
            she felt pain in the mid-back and down the right leg.
 
            
 
                 Claimant described her pain as severe.  She attempted 
 
            to work, but she was unable do complete her shift.  She 
 
            recounted the work injury to her co-employees in 
 
            housekeeping while everyone was on their coffee break.
 
            
 
                 On the same afternoon, claimant sought medical 
 
            attention from her family physician, Jay D. Mixdorf, M.D.  
 
            He diagnosed claimant's condition as right sciatica.  He 
 
            ordered conservative therapy and traction.  Claimant entered 
 
            the Kossuth County Hospital.
 
            
 
                 Claimant showed little improvement.  Dr. Mixdorf 
 
            referred her to the Institute for Low Back Care.  Thomas 
 
            Hennessey, M.D., ordered conservative therapy.  Later, 
 
            Alexander Lifson, M.D., Assistant Medical Director of the 
 
            Institute for Low Back Care, managed claimant's medical 
 
            treatment.
 
            
 
                 Dr. Lifson diagnosed claimant's condition as:
 
            
 
                 1.  10% bilateral lytic spondylolisthesis, L5-S1.
 
            
 
                 2.  Bilateral lateral spinal stenosis L5-S1, right 
 
                 greater than left.
 
            
 
                 3.  Right sided radiculitis.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 4.  Epidural perineural fibrosis at L4-5 level, 
 
                 possible recurrent disc.
 
            
 
                 5.  Status post right hemilaminotomy L4-5.
 
            
 
            (Exhibit A, Page 35).
 
            
 
                 Dr. Lifson performed surgery on June 19, 1987.  His 
 
            surgical notes reveal he conducted the following:
 
            
 
                 1)  Lumbar exploratory and decompression.
 
            
 
                 2)  Inferior laminotomy of L4, right.
 
            
 
                 3)  Medial facetectomy, L5, right.
 
            
 
                 4)  Removal of recurrent herniated nucleus 
 
                 pulposus, L4-5 right.
 
            
 
                 5)  Laminectomy, L5 right.
 
            
 
                 6)  Facetectomy, subtotal, L5-S1.
 
            
 
                 7)  Removal of pars interarticularis fragments, L5 
 
                 right.
 
            
 
                 8)  Relief of spinal stenosis, L5-S1, right.
 
            
 
                 9)  Posterior lumbar intertransierse process 
 
                 fusion, L4-5 and L5-S1 left, and L4-5, right, bank 
 
                 bone.
 
            
 
                 10) Autogenous fat graft.
 
            
 
            (Ex. A, p. 36).
 
            
 
                 Claimant had a second surgical procedure on February 
 
            28, 1989.  Dr. Lifson and his colleagues performed an 
 
            "anterior interbody lumbar fusion, L4-5, L5-S1; 
 
            retrooperitioneal dissection, mobilization of great 
 
            vessels."  (Ex. A, p. 98).
 
            
 
                 On May 17, 1990, Dr. Lifson performed another surgical 
 
            procedure.  He engaged in the "removal of pedicle screw 
 
            fixation system and exploration of dorsolateral fusion."  
 
            (Ex. A, p. 142).
 
            
 
                 Dr. Lifson opined that claimant had reached maximum 
 
            medical improvement on June 20, 1990.  (Ex. A, p. 158).  He 
 
            also opined that claimant had a permanent impairment of 35 
 
            percent.
 
            
 
                 Dr. Lifson based his opinion as follows:
 
            
 
                    Her current permanent partial disability rating 
 
                 is 35 percent.  This rating was arrived at, in 
 
                 part, by using the American Medical Association 
 
                 standards but also by considering her subjective 
 
                 complaints and my personal experience dealing with 
 
                 a substantial number of similar patients.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 I believe the ten percent of her 35 percent 
 
                 impairment is related to the back condition that 
 
                 she had for many years before she sustained her 
 
                 most recent injury at the Kossuth County Hospital.  
 
                 Another ten percent of her impairment is based on 
 
                 her subjective complaints of pain and limitations.   
 
                 The remainder of her rating (15 percent) is 
 
                 attributable to her structural pathology, lack of 
 
                 appropriate range of motion of the lumbar spine, 
 
                 etc.
 
            
 
            (Ex. A, p. 179).
 
            
 
                 Dr. Lifson imposed restrictions on claimant .  He 
 
            opined that:
 
            
 
                    I believe Ms. Strayer has permanent limitations 
 
                 in terms of her physical activities.  These 
 
                 include no lifting and carrying in excess of 15 
 
                 pounds and no repetitive bending, twisting or 
 
                 stooping.  If a job within these restrictions is 
 
                 available, she may certainly return to work.
 
            
 
            (Ex. A, p. 148).
 
            
 
                 Claimant was also evaluated by other physicians.  Damir 
 
            B. Wahby, M.D., examined claimant on August 3, 1990.  In his 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            report, he noted:
 
            
 
                    Exam revealed tenderness over the lumbosacral 
 
                 region and ROM of her back was limited due to pain 
 
                 and discomfort.  There were no neurological 
 
                 findings.  At this point, the pt is still totally 
 
                 disabled and she cannot return back to work and as 
 
                 far as the
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            limitations that was put on her by Dr. Lifson, I 
 
            agree with that...
 
            
 
            (Ex. A, p. 155).
 
            
 
                 Defendants referred claimant to Leonard E. Weber, M.D., 
 
            a neurologist for an independent medical examination.  He 
 
            examined claimant on January 4, 1991.  He opined that:
 
            
 
                    The question has been posed as to what the 
 
                 permanent impairment rating would be related to 
 
                 any injury pre-dating April 21, 1987, the 
 
                 additional impairment related to the incident of 
 
                 April 12, 1987, and her current percent permanent 
 
                 impairment.
 
            
 
                    I base percent permanent impairment on the 
 
                 Guides to the Evaluation of Permanent Impairment, 
 
                 the third edition published by the American 
 
                 Medical Association.  Based on these guidelines, 
 
                 the percent permanent impairment relative to the 
 
                 events of 1972 would have been 8 percent whole 
 
                 person impairment, given for surgically treated 
 
                 disk lesion with no residuals.
 
            
 
                    Her current percent impairment would be, by the 
 
                 same guidelines, 14 percent whole person 
 
                 impairment, given for failed back surgery at 
 
                 multiple operative levels and a second and third 
 
                 operation.
 
            
 
                    The percent impairment resulting from the 
 
                 events of 4/21/87 and operative treatment thereof 
 
                 would thus be the difference between the original 
 
                 and the current impairment, namely 6 percent 
 
                 additional whole person impairment.
 
            
 
            (Ex. A, p. 171).
 
            
 
                 Since the date of the April 21, 1987 work injury, 
 
            claimant has not returned to work at the hospital.  She had 
 
            worked part time at The Algona Reminder.  After the April 
 
            work injury, claimant returned to part time employment with 
 
            the newspaper.  She worked 8 to 12 hours per week.  Claimant 
 
            worked from November of 1987 until February of 1989.  She 
 
            assembled the weekly paper, she burned plates, she engaged 
 
            in lifting up to 40 pounds on an occasional basis, and she 
 
            was required to stand for periods of time.
 
            
 
                 Since her employment with the newspaper, claimant has 
 
            not worked anywhere else.  She has sought employment on a 
 
            very sporadic basis.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                 CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 It is the determination of the undersigned that 
 
            claimant has sustained a work injury which arose out of and 
 
            in the course of her employment.  Claimant consistently 
 
            relates the events in question.  She verbally relates the 
 
            incident to her co-workers and to her supervisor on the date 
 
            of the work injury.  All employees corroborate her verbal 
 
            report.  She has related the same scenario to her family 
 
            physician, Dr. Mixdorf, and to the orthopedic surgeon, Dr. 
 
            Lifson.  Claimant has never varied her description of the 
 
            work injury.
 
            
 
                 It is also the determination of the undersigned that 
 
            claimant has established the requisite causal connection.  
 
            Dr. Mixdorf relates claimant's condition to her work injury 
 
            on April 21, 1987.  (Ex. A, p. 32).  Dr. Lifson too relates 
 
            claimant's permanent condition, in part, to her April 21, 
 
            1987 work injury.  (Ex. A, p. 179).  Claimant has a 
 
            permanent condition.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 While a claimant is not entitled to compensation for 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 It is undisputed that claimant has had a preexisting 
 
            back condition.  Claimant has admitted that she experienced 
 
            back pain as early as her high school days.  She had a 
 
            laminectomy in 1972 for "a defect in the pars 
 
            interarticularis of the L5 vertebrae on the left."  (Ex. A, 
 
            p. 1).  After the surgery, claimant performed all of her 
 
            regular household chores.  She was under no permanent 
 
            restrictions.  In 1977, claimant entered the work force for 
 
            the first time.  She was capable of performing housekeeping 
 
            duties and restaurant work.  It was only after this work 
 
            injury that she was unable to return to her same job as 
 
            housekeeper.  It was only after the work injury in question, 
 
            that claimant was given permanent restrictions.  Defendants 
 
            are liable for the entire industrial disability.
 
            
 
                 It is the determination of the undersigned that 
 
            claimant's permanent disability is attributable to her work 
 
            injury on April 21, 1987.  Apportionment of disability 
 
            between a preexisting condition and an injury is proper only 
 
            when some ascertainable portion of the ultimate industrial 
 
            disability existed independently before an 
 
            employment-related aggravation of disability occurred.  
 
            Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied 
 
            Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  
 
            Hence, where employment is maintained and earnings are not 
 
            reduced on account of a preexisting condition, that 
 
            condition may not have produced any apportionable loss of 
 
            earning capacity.  Bearce, 465 N.W.2d at 531.  Likewise, to 
 
            be apportionable, the preexisting disability must not be the 
 
            result of another injury with the same employer for which 
 
            compensation was not paid.  Tussing v. George A. Hormel & 
 
            Co., 461 N.W.2d 450 (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 Claimant is industrially disabled.  She is permanently 
 
            restricted.  She can not return to her housekeeping duties, 
 
            although claimant is capable of working.  In fact, claimant 
 
            did return to part time employment at the newspaper in 
 
            November of 1987.  Claimant has attempted to conceal her 
 
            employment from defendants.  Her motive is questionable.  
 
            She had her hours placed on her husband's time card so a 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            payroll check would not be written to her.  Claimant's 
 
            credibility is successfully challenged by defendants.  It is 
 
            apparent to the undersigned that claimant's capabilities 
 
            exceed her imposed restrictions.  She has exaggerated the 
 
            nature and extent of her condition.  Claimant is capable of 
 
            sedentary or light work at minimum wage rates.  She is not 
 
            motivated to find other employment, although she is capable 
 
            of working.  After reviewing the evidence, and after 
 
            observing claimant, it is the decision of the undersigned 
 
            that claimant has a permanent partial disability of 50 
 
            percent.  This is attributable to the present work injury.  
 
            She is entitled to 250 weeks of permanent partial disability 
 
            benefits at the stipulated rate of $113.30 per week.  The 
 
            benefits shall run from December 1, 1987 through February 1, 
 
            1989, and from June 21, 1990 until such benefits are paid in 
 
            full.
 
            
 
                 The next issue to address is the issue dealing with 
 
            healing period benefits.  Section 85.34(1) provides that 
 
            healing period benefits are payable to an injured worker who 
 
            has suffered permanent partial disability until (1) the 
 
            worker has returned to work; (2) the worker is medically 
 
            capable of returning to substantially similar employment; or 
 
            (3) the worker has achieved maximum medical recovery.  The 
 
            healing period can be considered the period during which 
 
            there is a reasonable expectation of improvement of the 
 
            disabling condition.  See Armstrong Tire & Rubber Co. v. 
 
            Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period 
 
            benefits can be interrupted or intermittent.  Teel v. 
 
            McCord, 394 N.W.2d 405 (Iowa 1986).  Claimant is entitled 
 
            to benefits for the period from April 21, 1987 through 
 
            October 31, 1987, and from February 1, 1989 through June 20, 
 
            1990.  This period consists of 104 weeks at the stipulated 
 
            rate of $113.30 per week.
 
            
 
                 Claimant is also entitled to future medical expenses 
 
            which are causally related and which are reasonable and 
 
            necessary.  The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 For purposes of determining the date for making 
 
            payments, this deputy relies upon Simonson v. Snap-On-Tools, 
 
            798628, 842007, 851960.  There the industrial commissioner 
 
            determined that:
 
            
 
                    For purposes of determining the date upon which 
 
                 payments were made, it is held that payments shall 
 
                 be deemed "made" on the date deposited into the 
 
                 United States mail addressed to claimant, or, if 
 
     
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 not so mailed, on the date made available to 
 
                 claimant (not merely made available to Snap-On 
 
                 tools in the case of checks issued by Royal 
 
                 Insurance Company).
 
            
 
                 With respect to the issue of interest pursuant to 
 
            section 85.30, the undersigned directs the parties to 
 
            Simonson v. Snap-On-Tools, supra.  The industrial 
 
            commissioner wrote:
 
            
 
                    However, it does appear that interest has not 
 
                 been paid on delayed benefits and on benefits paid 
 
                 at less than the rate found herein.  Claimant 
 
                 correctly points out that payments should be 
 
                 applied first to accrued interest up to the date 
 
                 of payment, and then to principal amounts due.  
 
                 Huner v. Doolittle, 3 Greene 76-77 (Iowa 1851).  
 
                 The parties shall be left to calculate interest 
 
                 due pursuant to Iowa Code section 85.30.  If 
 
                 further intervention by this agency is needed to 
 
                 resolve any dispute as to such calculations, the 
 
                 parties are warned in advance of the possibility 
 
                 that a certified public accountant might be 
 
                 retained as an expert and the cost thereof 
 
                 assessed to one or several parties as may seem 
 
                 just.
 
            
 
                 Additionally, with respect to interest, the Iowa 
 
            Industrial Commissioner held in Meyers, supra:
 
            
 
                 The decision of the deputy filed September 30, 
 
                 1991 is affirmed and is adopted as the final 
 
                 agency action in this case with the following 
 
                 additional analysis:
 
            
 
                    Section 85.30 expressed legislative intent 
 
                    that interest on unpaid compensation be 
 
                    computed from the date each payment comes 
 
                    due, starting with the eleventh day after 
 
                    the injury....Interest is therefore payable 
 
                    on such installment from that due date, and 
 
                    similarly with the following weekly 
 
                    payments.
 
            
 
                 Interest is computed according to the longstanding 
 
                 rule that partial payments are applied first to 
 
                 accrued interest and the remainder to reduce the 
 
                 permanent partial disability benefits award.  
 
                 McNeal v. Iowa Department of Transportation, 
 
                 Order Nunc Pro Tunc, May 31, 1990.  Also see 
 
                 Clausen v. Carmar Farms, Ltd., Vol. 1, No. 3 
 
                 State of Iowa Industrial Commissioner Decisions 
 
                 540 (1985).
 
            The parties are directed to calculate interest on any weekly 
 
            benefits not paid when due based on Iowa Code section 85.30 
 
            and the above cited authority.  If a dispute arises between 
 
            the parties on how the interest should be calculated, the 
 
            parties can then bring the question before this agency for 
 
            resolution.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 Such is the situation here.  The parties are directed 
 
            to calculate interest on any weekly benefits not paid when 
 
            due.  If a dispute arises between the parties, the parties 
 
            can then bring the question before this division.
 
            
 
                 With respect to benefits pursuant to section 86.13, 
 
            claimant is not entitled to penalty benefits.  Section 86.13 
 
            permits an award of up to 50 percent of the amount of 
 
            benefits delayed or denied if a delay in commencement or 
 
            termination of benefits occurs without reasonable or 
 
            probable cause or excuse.  The standard for evaluating the 
 
            reasonableness of defendants' delay in commencement or 
 
            termination is whether the claim is fairly debatable.  Where 
 
            a claim is shown to be fairly debatable, defendants do not 
 
            act unreasonably in denying payment.  See Stanley v. Wilson 
 
            Foods Corp., File No. 753405 (App. August 23, 1990); Seydel 
 
            v. Univ. of Iowa Physical Plant, File No. 818849 (App. 
 
            November 1, 1989).  While there may have been some delays in 
 
            the payment of weekly benefits, the delays are not 
 
            unreasonable, given the preexisting condition, and the 
 
            issues of credibility.
 
            
 
                 Costs are assessed to defendants pursuant to Rule 343 
 
            IAC 4.33.  The assessed costs are:
 
            
 
                 $ 65.00  filing fee
 
               4.00  certified mailing
 
             100.00  medial report
 
             514.70  depositions
 
              34.40  mileage
 
              56.70  mileage
 
              50.00  5 witness fees
 
              22.56  subpoena service
 
            
 
                           
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                                         ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are liable for two hundred fifty (250) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of one hundred thirteen and 30/100 dollars ($113.30)  
 
            per week and for the period from December 1, 1987 through 
 
            February 1, 1989 and from June 21, 1990.
 
            
 
                 Defendants are liable for one hundred four weeks of 
 
            healing period benefits from April 21, 1987 through November 
 
            30, 1987 and from February 2, 1989 through June 20, 1990 at 
 
            the stipulated rate of one hundred thirteen and 30/100 
 
            dollars ($113.30) per week.
 
            
 
                 Claimant may be entitled to certain interest pursuant 
 
            to section 85.30.  The parties are directed to calculate 
 
            interest on any weekly benefits not paid when due based upon 
 
            section 85.30 and the above cited authority, and that if a 
 
            dispute exists between the parties on how the interest 
 
            should be calculated, the parties can then bring the 
 
            question before this agency for resolution, with costs of a 
 
            CPA assessed to the parties.
 
            
 
                 Defendants are liable for further reasonable and 
 
            necessary medical expenses pursuant to Iowa Code section 
 
            85.27.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten (10) percent per 
 
            year pursuant to Iowa Code section 85.30.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          MICHELLE A. MCGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Mark S Soldat
 
            Attorney at Law
 
            714 East State Street
 
            Algona Iowa 50511
 
            
 
            Mr Thomas M Plaza
 
            Attorney at Law
 
            701 Pierce Street Ste 200
 
            PO Box 3086
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            Sioux City Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                MICHELLE A. MCGOVERN
 
                                                Filed July 9, 1992
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MYRTLE DARLENE STRAYER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 853971
 
            KOSSUTH COUNTY HOSPITAL, 
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            PHICO INSURANCE COMPANY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant was awarded a 50 percent permanent partial 
 
            disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         THOMAS HOVEY,  :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 854004
 
         QUAKER OATS COMPANY,     :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         TRANSPORTATION 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 26, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of September, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Mr. Matthew J. Nagle
 
         Attorneys at Law
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406-2457
 
         
 
         Mr. James E. Shipman
 
         Mr. James M. Peters
 
         Attorneys at Law
 
         1200 MNB Bldg.
 
         Cedar Rapids, Iowa 52401