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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY MULLER, Surviving Spouse :
 
            of WILLIAM F. MULLER,         :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 855050
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            ECONOMY FORMS CORPORATION     :
 
            (Transform Limited),          :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Mary Muller, surviving spouse of William T. 
 
            Muller, decedent, against decedent's employer, Economy Forms 
 
            Corporation, and its insurance carrier, Fireman's Fund 
 
            Insurance Company.  The case was heard on June 5, 1990 in 
 
            Des Moines, Iowa at the office of the industrial 
 
            commissioner.  The record consists of the testimony of Mary 
 
            Muller.  The record also consists of the testimonies of 
 
            Kathy Hill-Crees, Al Jennings, Coy Davis, Ian G. Binnie, 
 
            Robert Raymond Tuttle, Ralph Hejlik and Dr. Richard Wooters.  
 
            Additionally, the record consists of claimant's exhibits A-L 
 
            and defendants' exhibits 1-8.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether decedent 
 
            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 decedent's death; and, 3) 
 
            whether claimant is entitled to death benefits and burial 
 
            expenses.
 
            
 
                                 findings of fact
 
            
 
                  The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Decedent was 51 years old at the time of his death.  He 
 
            had been employed by defendant-employer for nearly 13 years.  
 
            His title was assistant vice president for distribution and 
 
            his duties included overseeing the warehouse and shipping 
 
            and receiving.
 
            
 

 
            
 
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                 As part of his job duties, decedent was responsible for 
 
            packaging materials in containers and transporting the 
 
            containers to the airport for distribution.  On Sunday, 
 
            January 4, 1987, decedent, along with his wife, drove to the 
 
            company warehouse.  It was approximately 5:00 p.m.  Decedent 
 
            was driving his son's pickup truck while claimant followed 
 
            in the company station wagon.  After they arrived at the 
 
            warehouse, decedent began loading marked boxes each weighing 
 
            70 pounds or less.  Decedent used a dolly to transport 
 
            crates into both the truck and the station wagon.  Then 
 
            decedent drove the truck to the airport while his wife drove 
 
            the station wagon.  At the airport, the boxes were unloaded 
 
            with the assistance of a skycap and decedent returned to the 
 
            warehouse for a second load.  Again the same procedures were 
 
            repeated by decedent.
 
            
 
                 At approximately 9:00 p.m., decedent returned home.  He 
 
            and his wife had planned to dine at a restaurant but 
 
            decedent indicated to his wife that he was not feeling well 
 
            and that he wanted to stay at home.  Decedent ate some 
 
            cereal for dinner and went to bed.
 
            
 
                 The next morning decedent stayed in bed past his normal 
 
            time.  Claimant inquired about decedent's health, but she 
 
            was informed decedent was feeling fine.  Decedent left for 
 
            work later than usual.  He arrived home at approximately 
 
            1:00 p.m.
 
            
 
                 Claimant observed her husband upon his arrival home.  
 
            He appeared tired and claimant suggested bed rest.
 
            
 
                 Both decedent and his wife were members of the 
 
            Christian Science Church in Des Moines.  The Christian 
 
            Science religion is a religion which uses a Christian 
 
            Science practitioner to pray and assist ill church members 
 
            to become well.  Generally, an ill member of the Christian 
 
            Science faith does not resort to traditional medical 
 
            practices in order to feel better.  Rather a member of the 
 
            Christian Science faith uses a Christian Science prac
 
            titioner to pray that the ill member will become symptom 
 
            free and will ultimately be formed in the image and likeness 
 
            of God.
 
            
 
                 Upon observation of decedent's condition, decedent's 
 
            wife telephoned a Christian Science practitioner by the name 
 
            of Marion Pierpont.  Ms. Pierpont had been a practitioner 
 
            for nearly 40 years.  She had dealt on previous occasions 
 
            with claimant, but not with decedent relative to illness.
 
            
 
                 Ms. Pierpont began praying.  Claimant noticed no marked 
 
            change in her husband's overall condition.  He was shaking 
 
            for a time period.  He was vomiting and had diarrhea.  He 
 
            was unable to eat, although he could drink water and 7-Up.  
 
            He rested in bed or in a recliner.
 
            
 
                 Ms. Pierpont visited claimant personally on Wednesday, 
 
            January 7, 1987.  During her visit of nearly three hours, 
 
            Ms. Pierpont prayed, read the Bible and studied various 
 
            texts prepared by Mary Baker Eddy, founder of the Christian 
 
            Science faith.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Ms. Pierpont informed claimant that another 
 
            practitioner would have to be retained since Ms. Pierpont 
 
            was leaving town.  As a consequence, claimant retained the 
 
            services of another practitioner, Robert M. Carnes.  Mr. 
 
            Carnes commenced praying for decedent shortly after 4:00 
 
            a.m. on Thursday morning, January 8, 1987.
 
            
 
                 Decedent stated he was beginning to feel better on the 
 
            eighth.  He was sitting up, he ate potato soup and he 
 
            stopped vomiting.
 
            
 
                 On Friday, January 9, 1987, claimant believed her 
 
            husband was feeling better.  He ate Rice Krispies for 
 
            breakfast.  She decided she would drive to church and leave 
 
            her husband alone for a period of time.  Claimant was gone 
 
            for a period of time.  After she returned home, her husband 
 
            began vomiting.  He believed he was choking on the Rice 
 
            Krispies.  He spewed a green colored substance.  Claimant 
 
            attempted to contact the second practitioner but he was not 
 
            in his office.
 
            
 
                 Claimant testified it never occurred to her to contact 
 
            a physician.  She did telephone her daughter and the 
 
            daughter contacted the fire rescue squad, but decedent had 
 
            already died prior to the arrival of the rescue squad on 
 
            January 9, 1987.
 
            
 
                 After decedent's death, the Polk County Medical 
 
            Examiner,
 
            R. C. Wooters, M.D., arrived at claimant's home.  Dr. 
 
            Wooters conducted an investigation, completed a medical 
 
            examiner's report and eventually completed a death 
 
            certificate for decedent.  The cause of death was listed as:
 
            
 
                                Gangrenous Appendicitis with
 
                           abscess and perforation
 
            
 
                 An autopsy was performed by the state medical examiner, 
 
            Thomas Bennett, M.D.  Dr. Bennett opined the cause of 
 
            decedent's death was "gangrenous appendicitis with the 
 
            perforation and subsequent abscess formation."  Dr. Bennett 
 
            listed the death as a natural one.
 
            
 
                 Subsequent to decedent's death, claimant filed her 
 
            claim for death benefits under the Iowa Workers' 
 
            Compensation Act.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that decedent received an injury on January 
 
            4, 1987 which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 4, 
 
            1987 is causally related to the death of decedent 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). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 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, 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 sur
 
            rounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128 
 
            (1967).
 
            
 
                 In the case at hand, claimant has failed to prove by a 
 
            preponderance of the evidence that decedent's death arose 
 
            out of or in the course of his employment or that his death 
 
            was causally connected to any injury on January 4, 1987.
 
            
 
                 The medical evidence is overwhelming.  Decedent died of 
 
            gangrenous appendicitis with the perforation and subsequent 
 
            abscess formation.  Dr. Bennett, one of only five state 
 
            board certified forensic pathologists, reached this 
 
            conclusion.  Likewise, Dr. Wooters concurred with the 
 
            opinion of Dr. Bennett relative to decedent's cause of 
 
            death.  Both physicians listed the cause of death as a 
 
            natural cause.
 
            
 
                 Dr. Bennett, in his report of September 2, 1987, opined 
 
            the gangrenous appendicitis with abscess and perforation was 
 
            not connected to decedent's work activity.  Dr. Bennett 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            wrote:
 
            
 
                 The death of Mr. Muller was clearly due to the gan
 
                 grenous appendicitis with the perforation and 
 
                 subsequent abscess formation.  The diffuse 
 
                 peritonitis would have been extremely irritating 
 
                 to him, producing the abdominal complaints he 
 
                 noted, and would ultimately have led to septic 
 
                 shock and his death.  Your question in the third 
 
                 to the last paragraph asked me to state my opinion 
 
                 to a reasonable degree of medical certainty if 
 
                 there was a cause and effect relationship between 
 
                 the lifting and straining at work on Sunday, 
 
                 January 4, and his subsequent appendicitis and 
 
                 death on Friday, January 9.
 
            
 
                 The appendix is a small blind pouch nestled within 
 
                 the right pelvic wing of the abdomen.  It is quite 
 
                 small and the only real disorders effecting it are 
 
                 the acute inflammatory changes known as acute 
 
                 appendicitis, which usually are complications of 
 
                 overgrowth of bacteria within the small lumen, and 
 
                 the majority of cases being associated with a 
 
                 small firm fecal mass being impacted within the 
 
                 lumen.  Even in cases of severe trauma where there 
 
                 have been multiple abdominal injuries, the 
 
                 appendix almost always escaped unscathed.
 
            
 
                 In my opinion, the muscle complaints of Monday, 
 
                 January 5, were related to exertion from lifting 
 
                 and would explain why he "moved stiffly and looked 
 
                 tired".  That he did not seek medical assistance 
 
                 was not unexpected, for I have the history that he 
 
                 was a Christian Scientist.
 
            
 
                 One possible question may arise as to whether the 
 
                 straining could have forced a firm fecal mass down 
 
                 into the lumen of the appendix and thus 
 
                 precipitated the appendicitis.  In my opinion, 
 
                 this did not occur, with the fecalith developing 
 
                 over a period of time within the lumen, associated 
 
                 with the reabsorption of water from the fecal 
 
                 material.
 
            
 
                 Thus, in my opinion, the straining at work was not 
 
                 causally associated with the gangrenous 
 
                 appendicitis with abscess and perforation which 
 
                 led to the death of this man.  I respect the 
 
                 decisions of the previous Industrial Commissions, 
 
                 but I feel quite frankly that they are incorrect.  
 
                 Events may be chronologically associated but not 
 
                 causally associated.
 
            
 
                     ...
 
            
 
                 11-4-87
 
            
 
                      In my opinion, while the appendicitis was not 
 
                 caused by the lifting, it is clear to me that Mr. 
 
                 Mueller's delay in treating the serious nature of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 the abdominal complaints would be related to the 
 
                 probable masking of the appendicitis symptoms by 
 
                 muscle aches and complaints he would attribute to 
 
                 the lifting.
 
            
 
            (Exhibit D, page 9 and 10)
 
            
 
                 Dr. Wooters acknowledged a severe blow to the appendix 
 
            could rupture an appendix.  However, he noted no trauma to 
 
            the area of decedent's appendix.  Nor did he notice any 
 
            blunt trauma to the abdomen.  Dr. Wooters specifically 
 
            disagreed with the opinion of his classmate, Paul From, M.D.
 
            
 
                 Contrary to the above, Dr. From, a board certified 
 
            internist, opined in his report of August 27, 1987:
 
            
 
                 I did thoroughly examine the facts in this case 
 
                 including the report of investigation by the 
 
                 Medical Examiner, and results of an autospy [sic].  
 
                 In addition, I did review a letter you forwarded 
 
                 me.
 
            
 
                 These facts did indicate that Mr. Muller was a 
 
                 Christian Scientist.  He was a vice president of 
 
                 Economy Forms.  His job did not require work such 
 
                 as lifting.
 
            
 
                 He had seemingly been in good health.  However, 
 
                 the autopsy findings did indicate atherosclerotic 
 
                 coronary arteries with narrowing of of [sic] 
 
                 amoderately [sic] severe nature, and a remote 
 
                 posteroseptal moycardial [sic] infarction scar.  
 
                 He did have cardiomegaly of at least 150 grams, 
 
                 with the heart weighing 450 grams.  He had 
 
                 adrenocortical hyperplasia, and he had 
 
                 hepatomegaly with fatty changes.
 
            
 
                 His cause of death was listed as a gangrenous 
 
                 appendicitis, with periappendiceal abscess, 
 
                 perforation of the abscess, diffuse peritonitis 
 
                 and shock kidneys.
 
            
 
                 Mr. Muller went to the airport in Des Moines, 
 
                 Iowa, on January 4, 1987.  He saw that boxes of 
 
                 materials he was transporting were loaded onto a 
 
                 United Airlines airplane.  He did the actual 
 
                 physical work, and his wife observed him at the 
 
                 time.
 
            
 
                 The material he was transported were metal parts 
 
                 with a total weight of 2500 pounds, and these were 
 
                 in forty boxes weighing 50-75 pounds each.  At the 
 
                 Economy Forms plant he did pick them up off the 
 
                 loading dock, put them down into a pickup truck 
 
                 and, in doing so, pressed these against his 
 
                 abdomen and lifted and carried them and lowered 
 
                 them.
 
            
 
                 He made two trips to the airport.  At the airport 
 
                 he unloaded the boxes, carried them into the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 terminal and put them on the United Airlines desk 
 
                 for weighing and for sending on their way.  He 
 
                 then drove back to the plant, loaded up again in 
 
                 the same manner, drove to the airport, unloaded, 
 
                 carried to the United desk and returned to the 
 
                 plant.  He then loaded the family station wagon 
 
                 with boxes and unloaded them at the airport.  This 
 
                 all occurred at night and he and his wife then 
 
                 returned home.  However, he stated he did not feel 
 
                 well.  He ate some cereal and went to bed at 10:30 
 
                 or 11:00 P.M.  He slept later than usual the next 
 
                 morning, and seemed to be stiff.  He did not eat 
 
                 breakfast, but this was not unusual.  He again 
 
                 appeared to be tired.  On that day he did come 
 
                 home from work at about 1 P.M.  This was quite 
 
                 unusual for him.  He said to his wife, "We have 
 
                 problems ". [sic]  He never returned to work 
 
                 following that time.
 
            
 
                 On Tuesday, January 6, he vomited, and on January 
 
                 7, he was at home.  He awakened on January 8, at 
 
                 dawn, and seemed to be better and stated, "I think 
 
                 I'm going to live."  He had some potatoe [sic] 
 
                 soup and 7-Up and was sitting up in a chair 
 
                 watching TV which was the first time he had 
 
                 watched TV that entire week.  He was beginning to 
 
                 keep his food down.  On Friday, January 9, with 
 
                 the original work incident occurring on January 4, 
 
                 he did have dry cereal for breakfast and stated 
 
                 that he was feeling better and well.  He became 
 
                 extremely weak, and was unable to get out of bed 
 
                 without help.  He died at about 3 P.M. that day, 
 
                 with green material coming from his mouth.
 
            
 
                 He had no [sic] been seen by any physician during 
 
                 his illness.  He was said to have been a 
 
                 borderline diabetic.
 
            
 
                 The autopsy findings were thoroughly examined.
 
            
 
                 It was the opinion of the attending pathologist 
 
                 that Mr. Muller died from the gangrenous 
 
                 appendicitis with abscess and perforation.  In May 
 
                 1968, the Supreme Court of Illinois did find that 
 
                 appendicitis could be causally related to a 
 
                 serious blow or strain.  In that respect, it 
 
                 certainly appears to me to have been a strain of 
 
                 the abdominal wall and contents by his activities 
 
                 and his complaints began in a chronlogical [sic] 
 
                 time fashion following the exertion.
 
            
 
                 It will be my opinion, after carefully considering 
 
                 all the facts, that the unusual exertion in which 
 
                 Mr. Muller was engaged and in the way he did 
 
                 persue [sic] that exertion would have led to a 
 
                 significant strain of the abdomen so that the 
 
                 subsequent appendicitis with subsequent 
 
                 perforation and peritonitis would be attributed to 
 
                 that original strain.  In this respect I do find a 
 
                 causal relationship of his work to his death.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            (Ex. C, pages 1-3)
 
            
 
                 Dr. Robert L. Kollmorgen, M.D., a board certified 
 
            surgeon, testified by deposition.  He opined there was no 
 
            causal connection between decedent's work activity, the 
 
            appendicitis and resulting death.  Dr. Kollmorgen opined:
 
            
 
                    Q.  Based upon those records, Doctor, your back
 
                 ground, education, experience, did you formulate 
 
                 any opinions or conclusions that can be stated 
 
                 with a reasonable degree of medical certainty as 
 
                 to whether or not the work activities of Mr. 
 
                 Muller, as alleged on January 4 of 1987, either 
 
                 caused or aggravated an appendicitis with which he 
 
                 was diagnosed?
 
            
 
                    A.  Well, yeah.  Work activities do not cause 
 
                 an appendicitis, and they do not aggravate an 
 
                 appendicitis.  Appendicitis is not a mechanical 
 
                 related--related to mechanical activity.  It is 
 
                 related to obstruction of the lumina of the 
 
                 appendix, which is the process that's involved in 
 
                 the GI tract.
 
            
 
                        It is not related to exercise or not 
 
                 related to activity, and so I don't think that the 
 
                 activity that I have seen here caused his 
 
                 appendicitis.
 
            
 
                    Q.  In essence, you would disagree with Dr. 
 
                 From's report, I take it, in this regard.
 
            
 
                    A.  Yeah.  Dr. From is an internist, and I 
 
                 don't think he ever treats appendicitis.  And I 
 
                 don't think that he's really in a position to make 
 
                 a judgment regarding an appendicitis, but I 
 
                 disagree with his assumptions.
 
            
 
            (Ex. 5, p. 9, line 5 through p. 10, line 5)
 
            
 
                 Dr. Kollmorgen later related that the cause of 
 
            decedent's appendicitis was:
 
            
 
                    Q.  Contained in the autopsy report was some 
 
                 indication of what they called fecaliths.  Could 
 
                 you tell me what those are and if they had any 
 
                 relationship to Mr. Muller's appendicitis and the 
 
                 condition which was diagnosed?
 
            
 
                    A.  Typically that was the cause.  It is a 
 
                 hardened piece of stool or inflammatory piece that 
 
                 obstructs the appendix.  This infection builds up 
 
                 the wall of the appendix causing perforation.  
 
                 When we do surgery, we look for that fecalith.  If 
 
                 it stays in there, it will continue to have 
 
                 infection and cause a very severe illness.
 
            
 
                    Q.  Relative to the autopsy report, what does 
 
                 it reflect with respect to the fecalith or 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 fecalith present?
 
            
 
                    A.  Now, ask your question again.  What does it 
 
                 say regarding the fecalith?
 
            
 
                    Q.  Yes, sir.  What finding was there made by 
 
                 the doctor who did the autopsy?
 
            
 
                        MR. DAHL:  Why don't you point it out to 
 
                 him.  We are wasting time.
 
            
 
                    Q.  It is under gross description.
 
            
 
                    A.  "Numerous up to 3.4 inch long by 3.8 inch 
 
                 diameter brown fecalith present within remnants of 
 
                 appendix," and those are hard concretions of stool 
 
                 vegetable matter that become very hard, and that's 
 
                 what lodges in the lumina of the appendix.
 
            
 
                    Q.  The number and size of those, is that what 
 
                 you would expect to find in a condition of an 
 
                 appendicitis?
 
            
 
                    A.  Typically you see one firm one.  They say 
 
                 numerous.  I don't know how many that means.
 
            
 
                    Q.  Does the size have any significance to you 
 
                 here?
 
            
 
                    A.  No.
 
            
 
                    Q.  But that would be a usual finding in some 
 
                 cases?
 
            
 
                    A.  That's bigger than the usual finding, but 
 
                 that's what a fecalith is, yeah.  That's about the 
 
                 right size in the appendix, yeah.
 
            
 
                    Q.  Would Mr. Muller's activities of Sunday, 
 
                 January 4 have any effect on those fecaliths being 
 
                 present in that area or perhaps causative of that 
 
                 condition?
 
            
 
                    A.  No.
 
            
 
                    Q.  Could you tell us the basis for your 
 
                 statement in that regard?
 
            
 
                    A.  Well, fecaliths are accumulations that will 
 
                 occur over weeks', months', years' time.  They 
 
                 don't come within a day or two, and they are hard 
 
                 concretions that form.  Physical activity, again, 
 
                 has nothing to do with whether they form or not.  
 
                 Those are hard concretions of stool and vegetable 
 
                 matter that's in the stool.
 
            
 
                        They get--  They get backed into the blind 
 
                 pouch of the appendix, and that's--  In time if 
 
                 there is any swelling of the appendix, if you have 
 
                 an infection or--  The appendix wall is made up of 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 lymph node tissue which are lymph glands.  If you 
 
                 have swelling of lymph tissue, the fecal which is 
 
                 in the appendix which before may be not 
 
                 obstructing, as it swells, it becomes obstructed.  
 
                 So then the fecalith is the mechanical obstruction 
 
                 of the lumina in the appendix, and that causes an 
 
                 appendicitis.
 
            
 
                    Q.  Doctor, based on your review of Mr. 
 
                 Muller's course in this matter, if he had sought 
 
                 timely and appropriate care, do you think--or do 
 
                 you have an opinion, I should say, as to whether 
 
                 he would have recovered from the condition of an 
 
                 appendicitis?
 
            
 
                    A.  Well, I think he--if he would have sought 
 
                 medical advice, medical exam, I'm certain that 
 
                 this would have been diagnosed and he would have 
 
                 required surgery for this, hopefully before his 
 
                 fatal day.  Usually it takes 30 to 48 hours for an 
 
                 appendix to rupture from the onset of symptoms.  
 
                 If his symptoms started Monday, hopefully he could 
 
                 have been salvaged well prior to Friday when he 
 
                 died.
 
            
 
                    Q.  Do you--
 
            
 
                    A.  But, yes, I feel confident he would have 
 
                 been living if he had seen a physician and this 
 
                 diagnosis had been made.
 
            
 
                    Q.  Do you see any relationship between his 
 
     
 
            
 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 work activities as described by Mrs. Muller, 
 
                 assuming those to be true for the sake of this 
 
                 question--do you see any relationship between his 
 
                 work activities and his ultimate death?  I'm going 
 
                 to ask your opinion based on a reasonable degree.
 
            
 
                    A.  His work activities related to his cause of 
 
                 death?
 
            
 
                    Q.  Yes.
 
            
 
                    A.  No.
 
            
 
            (Ex. 5, p. 12, l. 1 through p. 15, l. 18)
 
            
 
                 Romeo S. Berardi, M.D., another surgeon, also testified 
 
            by deposition.  He too disagreed with the opinion of Dr. 
 
            From.  Dr. Berardi opined that decedent's work activities 
 
            did not causally relate to decedent's appendicitis and 
 
            death.  Dr. Berardi testified:
 
            
 
                    Q.  (BY MS. KELLEY)  Doctor, based on your 
 
                 review of the records which you've enumerated have 
 
                 been provided to you, your background, education, 
 
                 and experience, did you formulate any opinions or 
 
                 conclusions that can be stated with a reasonable 
 
                 degree of medical certainty as to the work 
 
                 activities described of Mr. William Muller on 
 
                 January 4 of 1987 and as they relate to his subse
 
                 quent appendicitis, the perforation of his 
 
                 appendix, and his death?
 
            
 
                    A.  Well, I formed an opinion after reading all 
 
                 the materials I had at my disposal for review and 
 
                 as I've already listed, and that opinion--  If I 
 
                 may read from the written report I sent you, it 
 
                 states as follows:
 
            
 
                        "All events occurring in this case can be 
 
                 explained by the natural clinical course of an 
 
                 acute appendicitis forming a walled-off abscess 
 
                 which then ruptured into the general abdominal 
 
                 cavity.  All events were certainly consistent with 
 
                 if not confirmed by the autopsy findings.  Nothing 
 
                 in the sequence of events needs to be explained by 
 
                 anything other than an acute inflammatory process 
 
                 of the appendix.  Mr. Muller's lifting boxes on 
 
                 the day of onset of his illness was, in my 
 
                 opinion, chronologically related but not causally 
 
                 related to his illness.  In fact the same events 
 
                 would have occurred if Mr. Muller had, for example 
 
                 been watching T.V. that same evening rather than 
 
                 lifting boxes.  Furthermore, autopsy findings 
 
                 confirm this contention.
 
            
 
                        "Had Mr. Muller sustained a strain of his 
 
                 abdominal wall muscles, an event which has not 
 
                 been medically confirmed, this would have only 
 
                 added a different type of pain to Mr. Muller's 
 
                 complaints but would not have had any effect on 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 the inflammatory process in his appendix.
 
            
 
                        "The only logical and natural way for this 
 
                 process to have been favorably interrupted would 
 
                 have been by medical treatment and in most cases 
 
                 this would require an operation.
 
            
 
                        "The relationship between external 
 
                 abdominal trauma, direct or indirect, with acute 
 
                 appendicitis has, to my knowledge, never been a 
 
                 serious consideration as a possible, probable 
 
                 and/or aggravating cause of inflammation of the 
 
                 appendix.  Certainly such a relationship has never 
 
                 been taught nor has it ever been, to my knowledge, 
 
                 part of any chapter in any medical textbook.  The 
 
                 most one can conclude from the events described is 
 
                 that the lifting of boxes was chronologically 
 
                 related to the events but in no way was it a 
 
                 primary or even an aggravating cause of the events 
 
                 as described."
 
            
 
                        And I looked at this, I might add, rather 
 
                 carefully because I've been known to give 
 
                 objective opinions, whether they agree with the 
 
                 individuals that they're supposed to agree with or 
 
                 not.
 
            
 
                        And it's very difficult for me to make any 
 
                 type of relationship between trauma and acute 
 
                 appendicitis, not only in Mr. Muller's case, but 
 
                 in general.
 
            
 
            (Ex. 6, p. 28, l. 19 through p. 31, l. 5)
 
            
 
                 Dr. Berardi also explained there was no literature in 
 
            the medical profession which would causally relate a causal 
 
            relationship between appendicitis and lifting or trauma.  
 
            (Ex. 6, p. 33, ll. 17-25)
 
            
 
                 Finally, Dr. Berardi testified:
 
            
 
                    Q.  With respect to opinions which have been 
 
                 offered in this case, you've been provided a copy 
 
                 of Dr. From's report of August 27, 1987.  In that 
 
                 report, Dr. From describes a strain of the abdomen 
 
                 so that subsequent appendicitis and perforation 
 
                 can be attributed to the original strain, and he 
 
                 finds causal relationship to the death of the 
 
                 claimant, Mr. Muller, of his work activities.
 
            
 
                        Based on Dr. From's report, would you agree 
 
                 or disagree with that?
 
            
 
                    A.  Oh, I can't agree with that at all.  My 
 
                 conclusions are completely the opposite of that 
 
                 conclusion, where I find no causal relationship 
 
                 whatsoever.
 
            
 
                        And the cause of death being even remotely 
 
                 concerned with the lifting of boxes is something 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 that I have difficulty reconciling.  I think the 
 
                 autopsy clearly shows what the cause of death was 
 
                 in this case, and I don't know whether it needs 
 
                 much argument.
 
            
 
                    Q.  Do you find any relationship or any 
 
                 aggravation of the appendicitis--
 
            
 
                    A.  Oh, as I say, if we knew that any type of 
 
                 relationship existed between one and the other, I 
 
                 think we would have addressed this relationship 
 
                 many, many years ago.
 
            
 
                        But this relationship has never been 
 
                 brought up in a serious fashion in the medical 
 
                 literature.  This connection between trauma and 
 
                 appendicitis has never been a serious 
 
                 consideration in any textbook that I know of, 
 
                 really, even after a search in some of the old 
 
                 textbooks that I have at home.
 
            
 
                        One just can't find this relationship 
 
                 addressed, so if it did exist, no one ever thought 
 
                 seriously of it, that is, not serious enough to 
 
                 put it in writing.
 
            
 
                        So I think if one is going to assume that 
 
                 that relationship does exist, then one can't 
 
                 really sustain that opinion, with medical 
 
                 literature, at least, even if it's archaic and was 
 
                 described in ancient literature.
 
            
 
            (Ex. 6, p. 36, l. 14 through p. 38, l. 5)
 
            
 
                 The opinion of Dr. From is not accorded much weight.  
 
            It is definitely contrary to the opinions of four other 
 
            physicians.  Additionally, Dr. From is an internist.  His 
 
            discipline is internal medicine.  He is not a surgeon.  It 
 
            is doubtful whether Dr. From is as accustomed to seeing 
 
            appendicitis cases as are the two surgeons who routinely 
 
            perform appendectomies.  Nor is Dr. From board certified in 
 
            forensic pathology.  All in all, claimant has not proven by 
 
            a preponderance of the evidence that her husband sustained 
 
            an injury which arose out of and in the course of his 
 
            employment and that any alleged injury was causally related 
 
            to decedent's death.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Each party shall pay its own costs pursuant to rule 343 
 
            IAC 4.33 of the Iowa Administrative Code.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St
 
            Suite 16
 
            Des Moines  IA  50312
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1100; 1108; 1805
 
                           Filed March 29, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY MULLER, Surviving Spouse :
 
            of WILLIAM F. MULLER,         :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 855050
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            ECONOMY FORMS CORPORATION     :
 
            (Transform Limited),          :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1100; 1108; 1805
 
            Claimant could not prove by a preponderance of the evidence 
 
            that her husband, the decedent, sustained an injury which 
 
            arose out of and in the course of his employment, or that 
 
            any injury was causally related to decedent's death.
 
            
 
                 Decedent was 51 years old at the time of his death.  He 
 
            had been employed by defendant-employer for nearly 13 years.  
 
            His title was assistant vice president for distribution and 
 
            his duties included overseeing the warehouse and shipping 
 
            and receiving.
 
            
 
                 As part of his job duties, decedent was responsible for 
 
            packaging materials in containers and transporting the 
 
            containers to the airport for distribution.  On Sunday, 
 
            January 4, 1987, decedent, along with his wife, drove to the 
 
            company warehouse.  It was approximately 5:00 p.m.  Decedent 
 
            was driving his son's pickup truck while claimant followed 
 
            in the company station wagon.  After they arrived at the 
 
            warehouse, decedent began loading marked boxes each weighing 
 
            70 pounds or less.  Decedent used a dolly to transport 
 
            crates into both the truck and the station wagon.  Then 
 
            decedent drove the truck to the airport while his wife drove 
 
            the station wagon.  At the airport, the boxes were unloaded 
 
            with the assistance of a skycap and decedent returned to the 
 
            warehouse for a second load.  Again the same procedures were 
 
            repeated by decedent.
 
            
 
                 At approximately 9:00 p.m., decedent returned home.  He 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            and his wife had planned to dine at a restaurant but 
 
            decedent indicated to his wife that he was not feeling well 
 
            and that he wanted to stay at home.  Decedent ate some 
 
            cereal for dinner and went to bed.
 
            
 
                 The next morning decedent stayed in bed past his normal 
 
            time.  Claimant inquired about decedent's health, but she 
 
            was informed decedent was feeling fine.  Decedent left for 
 
            work later than usual.  He arrived home at approximately 
 
            1:00 p.m.
 
            
 
                 Claimant observed her husband upon his arrival home.  
 
            He appeared tired and claimant suggested bed rest.
 
            
 
                 Both decedent and his wife were members of the 
 
            Christian Science Church in Des Moines.  The Christian 
 
            Science religion is a religion which uses a Christian 
 
            Science practitioner to pray and assist ill church members 
 
            to become well.  Generally, an ill member of the Christian 
 
            Science faith does not resort to traditional medical 
 
            practices in order to feel better.  Rather a member of the 
 
            Christian Science faith uses a Christian Science prac
 
            titioner to pray that the ill member will become symptom 
 
            free and will ultimately be formed in the image and likeness 
 
            of God.
 
            
 
                 Upon observation of decedent's condition, decedent's 
 
            wife telephoned a Christian Science practitioner by the name 
 
            of Marion Pierpont.  Ms. Pierpont had been a practitioner 
 
            for nearly 40 years.  She had dealt on previous occasions 
 
            with claimant, but not with decedent relative to illness.
 
            
 
                 Ms. Pierpont began praying.  Claimant noticed no marked 
 
            change in her husband's overall condition.  He was shaking 
 
            for a time period.  He was vomiting and had diarrhea.  He 
 
            was unable to eat, although he could drink water and 7-Up.  
 
            He rested in bed or in a recliner.
 
            
 
                 Ms. Pierpont visited claimant personally on Wednesday, 
 
            January 7, 1987.  During her visit of nearly three hours, 
 
            Ms. Pierpont prayed, read the Bible and studied various 
 
            texts prepared by Mary Baker Eddy, founder of the Christian 
 
            Science faith.
 
            
 
                 Ms. Pierpont informed claimant that another 
 
            practitioner would have to be retained since Ms. Pierpont 
 
            was leaving town.  As a consequence, claimant retained the 
 
            services of another practitioner, Robert M. Carnes.  Mr. 
 
            Carnes commenced praying for decedent shortly after 4:00 
 
            a.m. on Thursday morning, January 8, 1987.
 
            
 
                 Decedent stated he was beginning to feel better on the 
 
            eighth.  He was sitting up, he ate potato soup and he 
 
            stopped vomiting.
 
            
 
                 On Friday, January 9, 1987, claimant believed her 
 
            husband was feeling better.  He ate Rice Krispies for 
 
            breakfast.  She decided she would drive to church and leave 
 
            her husband alone for a period of time.  Claimant was gone 
 
            for a period of time.  After she returned home, her husband 
 
            began vomiting.  He believed he was choking on the Rice 
 
            Krispies.  He spewed a green colored substance.  Claimant 
 
            attempted to contact the second practitioner but he was not 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            in his office.
 
            
 
                 Claimant testified it never occurred to her to contact 
 
            a physician.  She did telephone her daughter and the 
 
            daughter contacted the fire rescue squad, but decedent had 
 
            already died prior to the arrival of the rescue squad on 
 
            January 9, 1987.
 
            
 
                 After decedent's death, the Polk County Medical 
 
            Examiner,
 
            R. C. Wooters, M.D., arrived at claimant's home.  Dr. 
 
            Wooters conducted an investigation, completed a medical 
 
            examiner's report and eventually completed a death 
 
            certificate for decedent.  The cause of death was listed as:
 
            
 
                                Gangrenous Appendicitis with
 
                           abscess and perforation
 
            
 
                 An autopsy was performed by the state medical examiner, 
 
            Thomas Bennett, M.D.  Dr. Bennett opined the cause of 
 
            decedent's death was "gangrenous appendicitis with the 
 
            perforation and subsequent abscess formation."  Dr. Bennett 
 
            listed the death as a natural one.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT HOLTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 855186
 
            MEREDITH/BURDA,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            Holton against Meredith/Burda, his employer, and its 
 
            insurance carrier, Travelers Insurance Company, based upon 
 
            an injury that occurred on August 26, 1986.  Holton seeks 
 
            compensation for healing period and permanent partial 
 
            disability.  The primary issues to be determined are whether 
 
            the injury proximately caused any temporary or permanent 
 
            disability.
 
            
 
                 The case was heard at Des Moines, Iowa on April 24, 
 
            1990.  The record consists of testimony from Robert Holton, 
 
            Cynthia Holton, David Bently, joint exhibits 1, 2 and 4, and 
 
            claimant's exhibit 3.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Robert Holton is a 43-year-old man who has been 
 
            employed by Meredith/Burda and its predecessors ever since 
 
            completing high school.  He has been a pressman for the last 
 
            13 years, a position which he continues to hold.  Holton had 
 
            injured his back in an automobile accident that occurred in 
 
            1965.  Six years later, he was diagnosed by Des Moines 
 
            neurosurgeon John T. Bakody, M.D., as having a chronic back 
 
            strain with no evidence of nerve root compression or other 
 
            neurologic involvement (exhibit 1-9, page 82).  His medical 
 
            history following that date is unremarkable until June 12, 
 
            1985 when he underwent extensive discectomy and 
 
            neuroforaminotomy surgery which was performed by William R. 
 
            Boulden, M.D., a Des Moines orthopaedic surgeon.  Claimant 
 
            apparently had injured his back by slipping and falling at 
 
            work in early April, 1985, though the actual mode of injury 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            is not material to this case.  Following the surgery, 
 
            claimant had an extended period of recovery and did not 
 
            return to work until October, 1985.  His last visit with Dr. 
 
            Boulden occurred on December 3, 1985 (exhibit 1-8, pages 66 
 
            and 67).  Following the return to work, claimant sought 
 
            treatment for back complaints from Robert Comer, D.O., on 
 
            March 6, 1986, March 20, 1986, July 10, 1986 and July 17, 
 
            1986.  The progress notes all indicate that claimant had 
 
            continued back pain (exhibit 1-6, pages 45-47).  The notes 
 
            of the following office visit on September 11, 1986 indicate 
 
            that the low back pain was not much changed from the 
 
            previous visit of July 17, 1986 (exhibit 1-6, page 47).  
 
            
 
                 Prior to the 1985 surgery being performed, Holton 
 
            experienced pain in his hip and shooting pain down his leg.  
 
            He stated that, after recovering from the surgery, he had no 
 
            further pain in his hip, leg or the area of his spine where 
 
            the surgery had been performed other than some pain in his 
 
            lower back.  Holton stated that the pain had gone away prior 
 
            to August 26, 1986.
 
            
 
                 Holton slipped and fell on August 26, 1986 while 
 
            working at his printing unit.  He stated that he felt the 
 
            onset of pain in the center of his lower back and that the 
 
            pain was much worse than the pain which he had experienced 
 
            prior to the 1985 surgery.  He sought medical treatment from 
 
            the company physician (exhibit 1-10, page 84) and was 
 
            referred to his surgeon, Dr. Boulden.  Dr. Boulden treated 
 
            claimant conservatively.  The history given was that 
 
            claimant had slipped and fallen on August 26, 1986 and that 
 
            three days later, he started having pain down his left leg.  
 
            Claimant was seen on October 2, 1986, October 9, 1986 and 
 
            October 23, 1986 (exhibit 1-8, pages 67 and 68).
 
            
 
                 Subsequent notes indicate that on December 4, 1986 
 
            claimant denied having any improvement of his back, but on 
 
            January 29, 1987 some improvement was noted (exhibit 1-6, 
 
            page 48).  Claimant was then seen on June 2, 1987 with 
 
            complaints of throbbing pain.  On June 11, 1987, he was 
 
            rechecked and denied any improvement.  On June 15, 1987, he 
 
            reported to be feeling better and was referred to 
 
            neurosurgeon David J. Boarini, M.D. (exhibit 1-6, pages 49 
 
            and 50).
 
            
 
                 Claimant underwent a physical therapy/physical 
 
            rehabilitation program at the Sports Medicine Clinic under 
 
            the direction of Dr. Boarini.  At the end of the program, 
 
            claimant's symptoms were markedly reduced and his condition 
 
            appeared to be quite substantially improved (exhibit 1-2, 
 
            pages 6-17; exhibit 1-4, pages 25-29).  Claimant was 
 
            released to return to work without restrictions on August 
 
            17, 1987 (exhibit 1-4, page 28).
 
            
 
                 Holton has resumed his work as a pressman without any 
 
            loss of actual income.  He continues to experience pain in 
 
            his back and leg on occasion.  His off-work activities are 
 
            quite restricted in comparison to what they had been prior 
 
            to the 1985 surgery.
 
            
 
                 There is not any evidence in the record from any 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            medical practitioner which provides a rating of permanent 
 
            impairment for the injuries sustained on August 26, 1986.  
 
            Jerome G. Bashara, M.D., has rated claimant as having a 15 
 
            percent permanent partial impairment of the body as a whole 
 
            related to his lumbar disc injury.  The diagnosis upon which 
 
            that rating was made states:  "Lumbar disc injury, 
 
            postoperative status, L4-5, secondary to an accident which 
 
            he sustained at work for Meredith Burda Corporation in April 
 
            of 1985."  (Exhibit 1-1, page 3)  Dr. Bashara feels that 
 
            claimant has some recurrence of the herniated L4-5 disc 
 
            which had been the subject of the 1985 surgery.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 26, 
 
            1986 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 The record in this case shows the occurrence of a slip 
 
            and fall on August 26, 1986 which marked a change in 
 
            claimant's symptoms as shown by the October 2, 1986 notes of 
 
            Dr. Boulden.  Thereafter, claimant remained in a continuing 
 
            course of medical treatment until he was taken off work for 
 
            the Sports Medicine Clinic program from June 15, 1987 
 
            through August 23, 1987 as stipulated by the parties in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            prehearing report, a span of ten weeks.  (The parties' 
 
            stipulation of 9.857 weeks is incorrect based upon the dates 
 
            shown.)  Claimant has been paid 10 weeks of compensation 
 
            benefits at the stipulated rate of $379.88 per week.  While 
 
            the evidence in the case contains no expression of expert 
 
            medical opinion regarding the existence of a causal 
 
            connection between the August 26, 1986 fall and that absence 
 
            from work, there are sufficient uncontroverted medical 
 
            histories in the medical reports to demonstrate that the 
 
            physicians apparently did not dispute the report of symptoms 
 
            having their onset with the August 26, 1986 fall.  It is 
 
            therefore determined that the absence from work in 1987 was 
 
            proximately caused by the August 26, 1986 fall.  The 
 
            claimant is perceived by the undersigned as a stoic 
 
            individual who would have continued working despite his 
 
            symptoms with the hope that they would eventually resolve.
 
            
 
                 There is no medical evidence which attributes any 
 
            degree of permanent impairment to the August 26, 1986 
 
            incident.  There is no medical evidence of any change in 
 
            claimant's abilities or activity restrictions.  The only 
 
            evidence of any change due to that event comes from the 
 
            testimony of claimant and his wife.  It is determined that 
 
            the August 26, 1986 incident may have produced some change 
 
            in claimant's symptoms, but the evidence fails to show it to 
 
            be probable that the incident or any resulting changes had 
 
            any impact upon claimant's permanent earning capacity.  It 
 
            is therefore concluded that Robert Holton is not entitled to 
 
            recover any compensation for permanent partial disability 
 
            based upon the August 26, 1986 injury.  In conformity with 
 
            the opinion expressed by Dr. Bashara, it is concluded that 
 
            all of claimant's permanent partial disability is a result 
 
            of whatever events necessitated the 1985 surgery.  The 1986 
 
            injury is determined to have been a temporary aggravation of 
 
            the preexisting condition.  Claimant is therefore entitled 
 
            to recover ten weeks of compensation for temporary total 
 
            disability, all of which had been previously paid by 
 
            defendants.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing 
 
            further from this proceeding as his entitlement has been 
 
            previously paid.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            309 Court Avenue
 
            Suite 200
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Terry L. Monson
 
            Attorney at Law
 
            100 Court Avenue
 
            Suite 600
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.40, 5-1801
 
                                               5-1803, 5-2206
 
                                               Filed July 30, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT HOLTON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 855186
 
            MEREDITH/BURDA,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1402.40, 5-1801, 5-1803, 5-2206
 
            Claimant, who had back surgery in 1985, slipped and fell at 
 
            work in 1986.  The injury was determined to be a temporary 
 
            aggravation of the preexisting condition caused by the 1985 
 
            injury and surgery.  Temporary total disability, but no 
 
            permanent partial disability, was awarded.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         MARILYN BERGERT,    :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 855200
 
         WILSON FOODS,  :
 
                   :        A P P E A L
 
              Employer, :
 
              Self-Insured,  :      D E C I S I O N
 
                   :
 
         and       :
 
                   :
 
         SECOND INJURY FUND OF IOWA,   :
 
                   :
 
              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 
 
         March 8, 1991 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. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. David L. Sayre
 
         Attorney at Law
 
         223 Pine St.
 
         P.O. Box 535
 
         Cherokee, Iowa 51012
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed September 16, 1991
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MARILYN BERGERT,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 855200
 
            WILSON FOODS,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                 Self-Insured,  :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 8, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARILYN BERGERT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 855200
 
            WILSON FOODS,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on February 20, 1991, at 
 
            Storm Lake, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged April 27, 1987 
 
            injury to her right lower extremity.  The record in the 
 
            proceedings consists of the testimony of claimant and 
 
            claimant's exhibits 1 through 21.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged permanent disability is 
 
            causally connected to her April 27, 1987 injury; and,
 
            
 
                 2.  The extent of claimant's permanent disability.  If 
 
            found, it would be a scheduled injury to her right knee or 
 
            lower extremity.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 46-year-old high school graduate.  She 
 
            related her job history prior to 1979 when she began working 
 
            for defendant employer.  For a considerable period of time 
 
            prior to 1979 claimant was not employed outside the home 
 
            while she raised her six children. Claimant described the 
 
            various jobs she has had while employed with defendant 
 
            employer.
 
            
 
                 On April 27, 1987, claimant injured her right knee at 
 
            work when she stepped down from a grate and her knee began 
 
            hurting.  She said her knee has been bad since that time.  
 
            Claimant contends she is unable to stand on it for any 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            period of time and slides down rails since it is hard to 
 
            walk down steps.  Claimant said she takes pain medication 
 
            and stands on her left leg at work to ease the right leg 
 
            condition.  Her current job at defendant employer's is 
 
            stylexing which she described as taking fat off ham with a 
 
            Whizzard knife.
 
            
 
                 Claimant acknowledged the Second Injury Fund helped 
 
            arrange vocational rehabilitation for her and she went 
 
            through that program.  She said vocational rehabilitation 
 
            recommended she should consider such jobs as teaching, being 
 
            a teacher's aide, being a bank teller or a psychologist.  
 
            Claimant testified she has no money to do these things.  She 
 
            emphasized she has three children still at home and relies 
 
            on her $9.27 per hour job and the many fringe benefits of 
 
            the defendant employer.
 
            
 
                 Claimant testified she has a hiatal hernia and a 
 
            migraine headache condition which have existed prior to her 
 
            April 27, 1987 injury.
 
            
 
                 Claimant said it is hard to work with big hams and do 
 
            heavy lifting and palletizing because it affects her hernia 
 
            condition, causing pain and nausea.  She has missed work due 
 
            to the migraines which get so bad she vomits and goes to the 
 
            hospital.  Claimant takes medication for her migraine 
 
            headaches.  Claimant also complained of daily mid-back and 
 
            left shoulder area neck pains.  Claimant indicated she takes 
 
            muscle relaxers and therapy for these conditions.  Claimant 
 
            testified it is impossible to bend over in the mornings and 
 
            cannot make the beds until she walks around first.  This is 
 
            an every day occurrence.  She said this pain also occurs at 
 
            work if she reaches or bends over.
 
            
 
                 Claimant indicates her arms and hands were giving her 
 
            the most problems prior to her recent carpal tunnel and left 
 
            elbow surgery on January 7, 1991.  Claimant has been off 
 
            work since her January 7, 1991 surgery.
 
            
 
                 Claimant said she has not received an impairment rating 
 
            on her recent carpal tunnel surgery.  She said she has an 
 
            appointment with the doctor February 25, 1991.
 
            
 
                 It appears from claimant's testimony that she is 
 
            willing to take another job and get training but her concern 
 
            is supporting her family and maintaining her current level 
 
            of income and fringe benefits.  Claimant indicated that she 
 
            cannot work full-time, be a mother and go to school at the 
 
            same time.
 
            
 
                 Claimant testified she hasn't seen or talked to Dr. 
 
            Wheeler for her right knee condition since last summer and 
 
            the last time prior to last summer was approximately one to 
 
            to one and one-half years ago.
 
            
 
                 Claimant stated she is not being treated for a 1981 
 
            right elbow problem.  It is this October 15, 1981 injury 
 
            that claimant relates as her first injury as it relates to 
 
            the current April 27, 1987 injury and the involvement, if 
 
            any, of the Second Injury Fund.  Claimant acknowledged she 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            had a patella transplant in both knees thirteen years ago 
 
            and contends she has not had any problems with her knees 
 
            prior to her April 27, 1987 injury.  Claimant contends she 
 
            is not active in sports, such as softball and volleyball, 
 
            but she does ride a bicycle and swims.
 
            
 
                 Mark Wheeler, M.D., an orthopedic surgeon, opined on 
 
            November 23, 1987, that claimant had a 20 percent impairment 
 
            to her right knee.  On that same date, he wrote:
 
            
 
                    It is difficult to divide this into that caused 
 
                 by her previous surgeries and more recent 
 
                 problems.  The rating over all is due to the 
 
                 degenerative arthritic changes in the knee.  She 
 
                 did have significant patellofemoral changes which 
 
                 would probably relate to her previous patellar 
 
                 tendon transfer.  However, she also had damage on 
 
                 the medial and lateral weight bearing surfaces.  I 
 
                 do not feel the changes were due to her injury of 
 
                 stepping off a grating and twisting her knee.  I 
 
                 feel these are more long-standing changes in 
 
                 general, but it could be related to standing on 
 
                 concrete all day.  I think it would be reasonably 
 
                 fair to say one half of her disability rating is 
 
                 due to her patellofemoral problems, and the other 
 
                 10% due to the other joint changes.
 
            
 
            (Claimant's Exhibit 9)
 
            
 
                 On February 26, 1988, Dr. Wheeler again wrote that 
 
            claimant has degenerative arthritis in her knee and that her 
 
            work activities and standing on her knee all day and 
 
            twisting definitely aggravates this condition (Cl. Ex. 13).
 
            
 
                 On January 24, 1990, Joshua Kimelman, D.O., an 
 
            orthopedic surgeon, examined claimant and wrote that he 
 
            agreed with Dr. Wheeler's 10 percent permanency as to 
 
            claimant's right knee, but he gave no opinion as to causal 
 
            connection.  He also referred to claimant's "other diffuse 
 
            musculoskeletal complaints" and "plethora of musculoskeletal 
 
            complaints" (Cl. Ex. 18).
 
            
 
                 It is obvious from the medical evidence that claimant 
 
            had a multitude of musculoskeletal complaints and has had 
 
            recent surgery on another of her scheduled members, not 
 
            including her right knee.  The only injury that is before us 
 
            is claimant's April 27, 1987 right knee injury and its 
 
            relation to a first injury of October 15, 1981, as to 
 
            defendant Second Injury Fund.  
 
            
 
                 The undersigned can feel sorry for claimant as it is 
 
            obvious she has had physical problems for many years.  All 
 
            those other injuries or ailments, other than the April 27, 
 
            1987 injury, had to do with other injuries or illnesses.  
 
            Claimant has the burden to prove her current impairment and 
 
            disability, if any, to her right knee is causally connected 
 
            to her April 27, 1987 injury.  No doctor has opined a causal 
 
            connection of claimant's disabilities to her right knee 
 
            April 27, 1987 injury.  At most, Dr. Wheeler speculates it 
 
            could be related to standing on concrete all day, but 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            speculation or possibility is not sufficient.
 
            
 
                 Additionally, from the Second Injury Fund's point of 
 
            view, the record doesn't show claimant's first injury 
 
            involving her right arm is, in fact, a permanent injury.  
 
            That fact alone would exclude any liability on the Second 
 
            Injury Fund under the law.  The claimant has not proven 
 
            defendant Second Injury Fund is liable on the causal 
 
            connection issue.
 
            
 
                 The undersigned finds claimant has failed to prove her 
 
            alleged right knee impairment and disability is causally 
 
            connected to her April 27, 1987 injury.
 
            
 
                 The undersigned further finds that the Second Injury 
 
            Fund is not liable to the claimant for any benefits.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 27, 
 
            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). 
 
            
 
                 Before the second injury fund is triggered three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, foot, leg or eye.  Second, 
 
            the employee must sustain another loss or loss of use of 
 
            another member or organ through a compensable injury.  
 
            Third, permanent disability must exist as to both the 
 
            initial injury and second injury.  See Allen v. The Second 
 
            Injury Fund, State of Iowa, Thirty-Fourth Biennial Report, 
 
            Iowa Industrial Commissioner 15 (1980); Ross v. Service 
 
            Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa 
 
            Indus. Comm'r 273 (1979).
 
            
 
                 The fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Mich. Coal Company, 274 N.W.2d 
 
            300 (Iowa 1970), Second Injury Fund v. John Deere Component 
 
            Works, Iowa Supreme Court Case No. 88-399, filed February 
 
            22, 1989.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant has failed to casually connect her alleged 
 
            impairment and disability to her right knee to her April 27, 
 
            1987 injury.
 
            
 
                 The Second Injury Fund is not liable for any benefits 
 
            to the claimant.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City IA 51102
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine St
 
            P O Box 535
 
            Cherokee IA 51012
 
            
 
            Mr Charles S Lavorato
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108
 
                      Filed March 8, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARILYN BERGERT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 855200
 
            WILSON FOODS,                 :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            
 
            Claimant failed to prove causal connection between her right 
 
            knee problem and her alleged injury.
 
            Claimant took nothing from this proceeding.