BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            MABEL C. RILEY, Surviving,      :
 
            Spouse and Administrator of     :
 
            the Estate of LARRY D. RILEY,   :       File No. 855427
 
            Deceased,                       :
 
                                            :          A P P E A L
 
                 Claimant,                  :
 
                                            :        D E C I S I O N
 
            vs.                             :
 
                                            :
 
            OSCAR MAYER FOODS CORPORATION,  :
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUE
 
            
 
                 The issue on appeal is:  Whether claimant has proved 
 
            that claimant's decedent sustained an injury that arose out 
 
            of and in the course of employment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed June 25, 1991 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 *****
 
            
 
                 Decedent was employed since 1974 as a maintenance 
 
            department mechanic by Oscar Mayer Foods Corporation, a meat 
 
            processing enterprise.  His duties were wide ranging and 
 
            took him throughout the plant, which involved exposure to 
 
            temperature extremes.
 
            
 
                 Some years before his death, decedent suffered two 
 
            falls with resultant damage to his left shoulder.  Since 
 
            then, he suffered from and complained of pain on a daily 
 
            basis.  His attendance was irregular and on many occasions 
 
            he left work early due to complaints of pain.
 
            
 
                 Decedent died of a heart attack on November 13, 1985.  
 
            His surviving spouse, Mabel Riley, testified that as early 
 
            as November 9, decedent complained of fatigue, pain in the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            center of his chest, neck, back and both arms, and looked 
 
            tired, pale, glassy-eyed and generally sick.  She gave 
 
            dramatic testimony as to decedent's continued course of 
 
            illness, specifying that he had the same complaints and 
 
            looked worse every day.  Although decedent continued to 
 
            work, Ms. Riley indicated that he engaged in almost no 
 
            activity at home, resting or lying on the floor for most of 
 
            the day while she massaged his neck for hours at a time.
 
            
 
                 However, Mabel Riley has not been shown to be a 
 
            reliable reporter of these events.  Testifying in a medical 
 
            malpractice action earlier litigated against decedent's 
 
            family physician and seeking damages for his untimely death, 
 
            Ms. Riley gave no indication that decedent suffered these 
 
            alarming problems in the several days immediately prior to 
 
            his death:
 
            
 
                 Q.  All right.  Do you remember Larry's activities 
 
                 on the 12th of November 1985, the day before his 
 
                 death?
 
            
 
                 A.  Yes.  He went to work as usual.  But at the 
 
                 time he had a cold and he wasn't feeling too well.  
 
                 But he went to work.  See, he used to get up at 
 
                 two in the morning and work from 3 to 11:30 in the 
 
                 morning and then he was taking up in the afternoon 
 
                 and sleep.  And he just wasn't feeling as well.
 
            
 
                 Q.  Did he then work the full shift that time?
 
            
 
                 A.  He worked the full shift that day.
 
            
 
                 Q.  All right.  Still complaining of the same kind 
 
                 of pain that he had before?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  How about November 13, 1984 [sic]?
 
            
 
                 A.  November the 13th, he came home early that 
 
                 morning.  I believe it was before David left for 
 
                 school.  And then he come and took a hot bath.  
 
                 And he didn't -- he had a very light lunch that 
 
                 day.  And then about -- then he went back to sleep 
 
                 about one, couldn't sleep, and I believe he talked 
 
                 to Donnie and Patsy, my daughter-in-law that day, 
 
                 for a while.
 
            
 
                 Then he decided to go down to the drug store and 
 
                 buy some Advils, I think he bought.  He thought 
 
                 maybe these would help the pain, you know.  He 
 
                 thought maybe -- arthritis, they say it's a good 
 
                 pill to take.
 
            
 
                 So then around -- that must have been around 5:45 
 
                 when he went to the drug store.
 
            
 
                 Then he came home and he was sitting on the couch, 
 
                 and then that's when he had his heart attack.  The 
 
                 only ones that were there was me and David.  It 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 happened around 7, 7:45, I believe.
 
            
 
            (Defendant's exhibit B, page 39, line 16 through page 40, 
 
            line 21)
 
            
 
                 Ms. Riley also testified that there was no change in 
 
            decedent's complaints during, at least, 1984, but that his 
 
            condition continued becoming worse.
 
            
 
                 *****
 
            
 
                 [Roger Krueger and the decedent worked in the position 
 
            of a plumber mechanic of the employer.  Krueger testified 
 
            that he had worked two years with decedent.  They did 
 
            everything connected with plumbing pipes.  In the job they 
 
            sometimes lifted objects weighing 20 pounds and used a 
 
            forklift or two-wheel carts to move heavier objects.  
 
            Krueger considered some of the maintenance work to be heavy 
 
            but did not consider set-up to be heavy labor.  (Ex. 6, p. 
 
            72, ll. 18-19)  He worked with decedent on November 11 but 
 
            not November 12 or 13.  (Def. ex. F)
 
            
 
                 Don Culbertson was the area maintenance supervisor for 
 
            the employer and supervised the decedent's work.  He 
 
            testified that on November 13, 1985 decedent did set-up work 
 
            which was not heavy work.  The work decedent did was hanging 
 
            electrical wizard knives and pulling plastic covering off a 
 
            machine.  He also testified that on November 12, 1985 and 
 
            several days before, decedent did his general maintenance 
 
            job but he was not specific as to the tasks performed.  This 
 
            job involved doing a variety of tasks sometimes working with 
 
            equipment weighing as much as 50-80 pounds.  The frequency 
 
            of work with the equipment weighing 50-80 pounds was 
 
            irregular.  Culbertson indicated the work was not heavy work 
 
            and the work was repair maintenance.  (Ex. 12, p. 27, ll. 
 
            12-20)  Culbertson's assessment of the difficulty of work 
 
            was corroborated by Bill Wilson who was also a maintenance 
 
            supervisor for the employer.  (Ex. 13, p. 8, l. 15 - p. 9, 
 
            l. 8)
 
            
 
                 Ron Boyer worked in general maintenance for the 
 
            employer.  He testified that he had done set-up work.  He 
 
            described this job as assembling 35-40 wizard knives in a 70 
 
            degree room, assembling scribe saws, sharpening blades, 
 
            walking from one area of the plant to another, sliding 
 
            skinning machines weighing 250-300 pounds, sliding an auger 
 
            weighing 100 pounds used in lard grinding into place, and 
 
            using screwdrivers and wrenches on the equipment.  He 
 
            described the work in the cellar department set-up as very 
 
            strenuous.  He also stated that not all the tasks would be 
 
            performed each day and did not see decedent actually do all 
 
            of his work.  He testified in his deposition (ex. 8, p. 71, 
 
            ll. 21-23) that set-up was not a hard strenuous job.]
 
            
 
                 He frequently worked side-by-side with decedent, and 
 
            worked the same shift (not decedent's usual shift) on 
 
            November 12 and November 13.  This shift began at 11:00 p.m. 
 
            and ended 7:30 a.m.  Boyer indicated that, as early as 
 
            November 11, decedent complained of feeling bad in the arms, 
 
            shoulder and neck and looked ill.  This was particularly 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            true on decedent's last shift from November 12 through the 
 
            morning of November 13.  Decedent complained of being sick 
 
            and suffering pain in the arms and shoulder and announced 
 
            that he was leaving early because "I've had all I can take."  
 
            However, decedent had finished his work before leaving and 
 
            Boyer agreed that he commonly complained of physical 
 
            ailments and had, on a number of occasions, left work early.
 
            
 
                 In fact, decedent left work at 6:12 a.m. on November 
 
            13, more than an hour early.  He returned home at 
 
            approximately 6:30 to 7:00 a.m., continuing to complain of 
 
            pain.  According to Mabel Riley, he did not leave the house 
 
            until going to a drug store to purchase a pain medication 
 
            after dinner and then, approximately 7:00 p.m., mumbled 
 
            something unintelligible (perhaps "Help me!") and fell from 
 
            the sofa where he had been watching television, striking his 
 
            head on the edge of a coffee table.
 
            
 
                 However, records of Dallas County Ambulance Service 
 
            appear to show that the first call was made at 20:21, or 
 
            8:21 p.m.  At 20:49, decedent showed zero respiratory rate, 
 
            zero pulse and blood pressure of 0/0.  Lung sounds were 
 
            present and described as moist.  Cardiopulmonary 
 
            resuscitation was unsuccessfully attempted.  Decedent was 
 
            received at the Dallas County Hospital emergency room at 
 
            9:00 p.m. without pulse or respirations.  Ventricular 
 
            defibrillation was repeatedly attempted without success and 
 
            CPR was discontinued at 9:24 p.m.  Based on this sequence of 
 
            events, it appears likely that decedent's collapse occurred 
 
            somewhat later than Mabel Riley recalls, probably by about 
 
            an hour.
 
            
 
                 An autopsy was performed on the following day by 
 
            William B. Rohr, M.D.  Dr. Rohr was, at the time, the State 
 
            Medical Examiner for this state and is a highly-qualified 
 
            pathologist indeed, triple board certified in anatomic, 
 
            clinical and forensic pathology.  Dr. Rohr testified by 
 
            deposition on March 1, 1990.
 
            
 
                 Dr. Rohr's autopsy report found evidence of 
 
            arteriosclerotic cardiovascular disease (with multiple 
 
            occlusions by plaque and thrombus of the left anterior 
 
            descending coronary artery and its diagonal branch and 
 
            patchy paleness of the posterior and lateral left 
 
            ventricular walls), hypertensive cardiovascular disease, 
 
            selective hypoplasia of the right coronary artery, mild 
 
            interstitial pneumonitis, visceral congestion and evidence 
 
            of an old thyroidectomy.  He concluded:
 
            
 
                 I am of the opinion that Larry Riley, a 47 year 
 
                 old white male, died as the result of severe 
 
                 hardening and narrowing of the arteries supplying 
 
                 the heart with blood, the sustained effects of 
 
                 high blood pressure and an unusually small artery 
 
                 supplying the heart with blood which was a defect 
 
                 present from birth.  The combined effects of these 
 
                 diseases made maintenance of a normal regular 
 
                 heartbeat difficult and resulted in the death of 
 
                 Mr. Riley.  Additionally, there is evidence of 
 
                 destroyed heart muscle (myocardial infarct).  This 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 heart muscle had been destroyed for a period of 
 
                 less than 3 days.  Also present was a mild 
 
                 inflammation of the lungs which also would have 
 
                 made breathing difficult and could have also 
 
                 contributed to the fatal irregular heartbeat.
 
            
 
            (Ex. 17)
 
            
 
                 In a letter dated April 16, 1989, Dr. Rohr stated his 
 
            belief that decedent's myocardial infarction began one to 
 
            three days before his death.  However, in his deposition 
 
            testimony, Dr. Rohr was less definite:
 
            
 
                 Q.  Is that your last word or opinion on when the 
 
                 myocardial infarction began in Mr. Riley?
 
            
 
                 A.  Yeah.  What I'm saying is I can't tell when it 
 
                 occurred.  There are features here of necrosis of 
 
                 heart muscle, but, you know, I can't narrow it 
 
                 down to six to eight hours or within a two- or 
 
                 three-hour time frame.  There aren't enough 
 
                 sections there.
 
            
 
                 If you want to do that, you need to take many, 
 
                 many sections firstly, which we don't have.  The 
 
                 reason I took sections of the heart was not so 
 
                 much to age the infarct but to see if, in fact, 
 
                 there is an infarct there.  When I see paleness in 
 
                 the myocardium, it could be due to many factors, 
 
                 including that it was left on the cutting table 
 
                 for 20 or 30 minutes.  I am taking the section to 
 
                 see if, in fact, I have an infarct, that there is 
 
                 not a myocardiopathy or myocarditis.  If you want 
 
                 to age it, you have to take many, many sections.  
 
                 Not only that, because of the general features of 
 
                 the heart, the general condition of the heart, and 
 
                 what I'm seeing through the microscope, I can't do 
 
                 any better than less than three days of age.
 
            
 
            (Ex. 2, p. 16, ll. 22 - p. 17, l. 22) 
 
            
 
                 Dr. Rohr also testified that the infarction could have 
 
            occurred only a few hours before death (which he defined as 
 
            9:42 p.m. when CPR was discontinued) or up to three days.  
 
            In his autopsy, Dr. Rohr took representative sections for 
 
            microscopic study so as to establish that a myocardial 
 
            infarction had occurred, but was not at that time attempting 
 
            to pin down the infarction as to time.  It is possible that 
 
            if more sections had been taken for microscopic study, 
 
            timing of the infarction might be timed with more precision.  
 
            For example, if decedent had suffered a "stutter" heart 
 
            attack over a period of days (thrombi forming and causing 
 
            the death of muscle tissue, then dissolving in a cyclical 
 
            pattern), further representative sections of muscle might 
 
            have shown infarcts of different age.  In the final 
 
            analysis:
 
            
 
                 Q.  So it is still your opinion, is it, Doctor, 
 
                 that the infarct could have occurred at any time 
 
                 within one to three days before his death?
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 A.  I think a better way of putting it is it 
 
                 occurred less than three days, somewhere between a 
 
                 few hours and three days.
 
            
 
            (Ex. 2, p. 42, ll. 12-18)
 
            
 
                 [He wrote that continuation of working without rest 
 
            aggravated the decedent's infarct and did not improve the 
 
            chances of surviving the infarct once its formation began.  
 
            (Ex. 21, p. 005)  He stated that it was possible that the 
 
            normal work caused an excess oxygen demand on decedent's 
 
            heart.  (Ex. 2, p. 47, l. 24 - p. 48, l. 2)]
 
            
 
                 Both Dr. Rohr, the former Iowa State Medical Examiner, 
 
            and Thomas L. Bennett, M.D., the current Iowa State Medical 
 
            Examiner, agreed that decedent's symptoms of angina prior to 
 
            his death did not necessarily infer that a myocardial 
 
            infarction was in process.  The infarction itself was no 
 
            doubt due to decedent's numerous risk factors:  high blood 
 
            pressure, family history, overweight, history of cigarette 
 
            smoking and the like.
 
            
 
                 Dr. Bennett, who testified by deposition on October 3, 
 
            1990, is also a highly-qualified forensic pathologist.  He 
 
            also is triple board certified in anatomic, clinical and 
 
            forensic pathology.  Dr. Bennett did not personally 
 
            participate in the autopsy, but based his opinions on the 
 
            results of Dr. Rohr's report.  He believes that the "recent 
 
            acute myocardial infarction" reported by Dr. Rohr could not 
 
            have been one to three days old, but only several hours old.  
 
            He notes that the autopsy report showed necrosis of tissue, 
 
            which is standard for an infarction of six to eight hours in 
 
            age (one in which there has been an interruption in the 
 
            blood flow for a period of at least four hours to allow the 
 
            heart muscle cells to die, or to become necrotic), but 
 
            particularly emphasizes the absence of cells known as 
 
            neutrophils:
 
            
 
                 [A.]  So you have a period of four to six hours 
 
                 after the infarct that the heart muscle will still 
 
                 be salvageable, but after that time it becomes 
 
                 necrotic; and then within a few hours afterwards, 
 
                 two hours or four hours, somewhere in that range, 
 
                 you then have the body come in to get rid of the 
 
                 dead, necrotic cells and replace it with scar 
 
                 tissue, the traditional body response to death of 
 
                 a part of the body.
 
            
 
                 In my opinion, this is a classic description of an 
 
                 infarct that is six to eight hours of age.  He 
 
                 describes no neutrophilic infiltration, so we know 
 
                 it is less than eight hours of age or so.  He 
 
                 describes the eosinophilic shrinkage (sic) of the 
 
                 myocardial fibers plus the -- or, I'm sorry, the 
 
                 smudging of the fibers plus the shrinking of the 
 
                 nuclei.  Those are signs of an infarct that is 
 
                 four hours or so, so you're narrowing it down to 
 
                 four to eight hours or so.  That's very good based 
 
                 on his description here.  That's again using his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 gross and microscopic description.
 
            
 
                 Q.  In your report of November 3, 1989, you 
 
                 express the opinion that the histologic changes 
 
                 were at most six to eight hours of age.  Would you 
 
                 tell us whether or not that is still your opinion.
 
            
 
                 A.  That is, and that's aging from the time of the 
 
                 infarct.  So yes, that is still my opinion.
 
            
 
            (Ex. 5, p. 24, l. 23 - p. 26, l. 2)
 
            
 
                 According to Dr. Bennett, if the infarction had 
 
            occurred more than six to eight hours before Mr. Riley's 
 
            death, neutrophilic cell invasion of the heart muscle would 
 
            have commenced and would have been reported by Dr. Rohr.  
 
            The infarction could be perhaps nine hours of age, but not 
 
            twelve to fourteen or more.
 
            
 
                 On the other hand, Dr. Rohr explained the absence of 
 
            neutrophilic cell invasion by pointing out that decedent's 
 
            infarction was massive in nature, and that the loss of 
 
            circulation could have held up the neutrophilic cells and 
 
            prevented timely infiltration.
 
            
 
                 Thus, Dr. Bennett believes that the infarction which, 
 
            along with fibrillation which was associated with decedent's 
 
            demise, was six to eight, and no more than nine or so, hours 
 
            before death, while Dr. Rohr believes the infarction cannot 
 
            be so accurately timed, having occurred somewhere from 
 
            several hours to several days before death.  The pain 
 
            decedent reported in the at least one day before his death 
 
            could be attributed either to an ongoing myocardial process 
 
            or "stutter" heart attack, or to angina in the absence of 
 
            infarction.  [Dr. Bennett opined that the stress of the work 
 
            did not precipitate the infarction.  (Ex. 31, p. 002)]
 
            
 
                 *****
 
            
 
                 [Rahim Bassiri, M.D., an endrocrinologist, treated the 
 
            decedent for a thyroid condition beginning in 1980.  He 
 
            stated he didn't know what the decedent's work activities 
 
            were.  (Ex. 9, p. 10, l. 17)  He didn't know when decedent's 
 
            clot in the heart occurred and relied upon Dr. Rohr's 
 
            determination when the clot occurred.  He stated that 
 
            decedent's work could have caused decedent's coronary 
 
            insufficiency.  (Ex. 9, pp. 11-12)  He felt that working 
 
            while decedent had coronary insufficiency could have 
 
            increased and aggravated the myocardial ischemia.  (Ex. 22, 
 
            p. 002)
 
            
 
                 Joel From, M.D., a cardiologist, testified that some 
 
            degree of thrombus formed as early as two days prior to 
 
            decedent's demise, (ex. 1, p. 21) and that a thrombus 
 
            precedes a myocardial infarction.  He also stated that 
 
            performing any activities after a myocardial infarction is 
 
            underway worsens the condition.  (Ex. 1, p. 38)  He thought 
 
            the shortest period of time before decedent's death that the 
 
            myocardial infarction developed was 10 - 12 hours and the 
 
            longest two to three days.  It was his opinion that the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            decedent's work activity aggravated his coronary 
 
            insufficiency.  (Ex. 1, p. 43)  He did not know whether 
 
            decedent's work activities in the last three days of his 
 
            life were any more strenuous than his normal work.  Dr. Joel 
 
            From's written report stated that decedent had a syndrome of 
 
            unstable angina and probable acute myocardial infarction 
 
            during the time which he was at work on November 13, 1985.  
 
            (Ex. 15, p. 004)
 
            
 
                 Paul From, M.D., a board certified specialist in 
 
            internal medicine, testified that he didn't know when the 
 
            myocardial infarction occurred but he thought it occurred 
 
            one to three days before decedent died.  (Ex. 4, pp. 7-8)  
 
            Dr. Paul From testified:
 
            
 
                    If any event that he had at the job set up his 
 
                 heart so that there was electrical instability 
 
                 that came about at some later time, I think, in 
 
                 all fairness, that has to be taken into accounted 
 
                 [sic].  But I think--  And I would defy anyone to 
 
                 try and explain why he died when he did die, if it 
 
                 was related to his job.
 
            
 
                    What I'm trying to say is he could have died at 
 
                 that point in time if he had not even worked that 
 
                 day.
 
            
 
                    ....
 
            
 
                    Why he fibrillated and died, I don't know. ...
 
            
 
                    It did, and simplistically I would say, and 
 
                 almost holistically I would say that if his job 
 
                 caused his death, why didn't he die on the job, 
 
                 why did he go home and go to sleep and rest all 
 
                 night, or through the day, or whatever it 
 
                 was--went home at six in the morning, I think, and 
 
                 didn't go to the hospital until 9 o'clock that 
 
                 night and was pronounced dead at 9:24.  What 
 
                 happened during the day to him when he wasn't at 
 
                 work?  I mean, you know, something is in there, 
 
                 maybe an extra cup of coffee he took when he was 
 
                 at home and it sped up his heart and it caused his 
 
                 demise.  I don't know honestly.  But I don't think 
 
                 anybody else does either, and all I can say is he 
 
                 didn't die on the job, and I think that's an 
 
                 extremely important factor.
 
            
 
            (Ex. 4, pp. 71-72)
 
            
 
            He observed that the decedent had tobacco abuse and coffee 
 
            abuse.  (Ex. 25, p. 007)  He did not believe that decedent's 
 
            work caused, aggravated, or lighted up his coronary disease.  
 
            (Ex. 25, pp. 008 and 011)
 
            
 
                 L.A. Iannone, M.D., a cardiologist, testified that a 
 
            patient may form blood clots for several days and dissolve 
 
            his own clots.  He stated:
 
            
 
                    It is fairly likely, judging from the autopsy, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 that he probably had a blood clot form in a small 
 
                 branch, that it caused a small heart attack, not 
 
                 enough to cause him to seek help, and that's why 
 
                 we have some damage in the heart muscle as 
 
                 described by the pathologist that occurred 
 
                 probably three days ago and then further clot 
 
                 formed and not be dissolved, which led to the 
 
                 entire artery being closed.
 
            
 
                    ...It would appear to me from the autopsy 
 
                 report that he may have been forming blood clots.  
 
                 They may have broken off, dislodged in a smaller 
 
                 vessel, caused damage to that part of the heart.  
 
                 Another blood clot formed, dislodged or formed in 
 
                 the artery and just stayed there in a smaller 
 
                 branch, damaged the heart; and this process 
 
                 continues until a large blood clot forms in the 
 
                 more proximal or the beginning of the vessel, at 
 
                 which point it's just too much for the heart and 
 
                 the heart stops.
 
            
 
                    ....
 
            
 
                    So that what the pathologist saw was areas of 
 
                 infarction, probably areas less than dead but what 
 
                 we call ischemic.  So you can tell by looking at 
 
                 the heart about how long the process has been 
 
                 going on.
 
            
 
                    ....
 
            
 
                    Based on what the pathologist tells me, in a 
 
                 truly staged heart attack, where we call it a 
 
                 stutter type of heart attack, there is some 
 
                 damage, then everything quiets down, then more 
 
                 damage, then it quiets down and the patient thinks 
 
                 I'm going to get better and doesn't seek medical 
 
                 attention.
 
            
 
            (Ex. 3, pp. 23-26)
 
            
 
            In his written report Dr. Iannone opined that physical 
 
            exertion of working days preceding decedent's death may have 
 
            precipitated his heart attack.  He also opined that working 
 
            during the period of November 11th to 13th, 1985 aggravated 
 
            and contributed to the myocardial infarction and eventual 
 
            death.
 
            
 
                 Robert Kreamer, D.O., reviewed records and depositions 
 
            in this matter.  Dr. Kreamer relied upon medical literature 
 
            which indicated that ventricular fibrillation is rare in 
 
            patients with established myocardial infarctions six hours 
 
            or more after the onset of the acute heart attack.  He wrote 
 
            that there is no clear relationship between the decedent's 
 
            infarction and his work.  (Ex. 28, p. 002)
 
            
 
                 Mark Ravreby, M.D., testified that the decedent's work 
 
            exertion accelerated the process of the heart attack and 
 
            that the process started two to three days before his death.  
 
            He also stated that any activity above complete rest is 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            damaging activity.  (Tr., p. 66, ll. 4-5)  He testified that 
 
            the decedent's work aggravated his condition and accelerated 
 
            the cardiac process (Tr., p. 67, ll. 9-13)  He stated:
 
            
 
                 Q.  So one really cannot say with medical 
 
                 certainty that the clot itself developed from the 
 
                 employment activities of the gentleman?
 
            
 
                 A.  No.  I do not think the clot necessarily 
 
                 developed at a point in time that he was working.  
 
                 It might have.  It might have been when he was 
 
                 resting, but certainly he was working while that 
 
                 clot was developing, and that's the important 
 
                 process.
 
             
 
            (Tr., p. 73, ll. 10-18)
 
            
 
            It was Dr. Ravreby's opinion that the decedent was 
 
            undergoing progressive myocardial death on November 11 and 
 
            12, 1985 and finally resulted in death on November 13, 1985.  
 
            (Ex. 19, p. 002)
 
            
 
                 Elliot L. Sagall, M.D., reviewed records, depositions, 
 
            and a videotape illustrating the set-up operations similar 
 
            to which decedent was said to have performed on November 13, 
 
            1985.  It was his opinion that it could not be concluded the 
 
            decedent's work activities during the several days prior to 
 
            his death caused further coronary insufficiency and 
 
            myocardial ischemia.  He also opined that decedent's death 
 
            was not causally related to his employment with defendant 
 
            employer.  (Ex. 26, p. 007)
 
            
 
                 E.O. Theilen, M.D., Professor of Medicine 
 
            Cardiovascular Division at the University of Iowa, reviewed 
 
            records and depositions in this matter.  He indicated that 
 
            the infarct may have begun on November 10 when decedent 
 
            remained home because he was not feeling well.  He wrote 
 
            that occlusion of the vessel may be abrupt or over a longer 
 
            period of time as a consequence of spontaneous lysis or 
 
            dissolving of the clot and reformation.  It was his opinion 
 
            that the activities of the decedent engaged in prior to his 
 
            myocardial infarction neither precipitated nor were a factor 
 
            in his death.  (Ex. 27, p. 002)]
 
 
 
                               CONCLUSIONS OF LAW
 
 
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the alleged injury actually occurred and 
 
            that it arose out of and in the course of employment.  
 
            12
 
            
 
            
 
            
 
            
 
                      if the workman, for some reason, feels 
 
                      impelled to continue with his duties 
 
                      when, but for these duties, he could and 
 
                      would have gone somewhere to lie down at 
 
                      once, the causal contribution of the 
 
                      employ-ment to the aggravation of the 
 
                      condition is clear.
 
            
 
                 The first issue to be determined in deciding the 
 
            instant case is whether claimant has proved that one of the 
 
            standards of the legal test has been satisfied.
 
            
 
                 The first standard of the legal test is whether 
 
            claimant's work exertions were greater than exertions of 
 
            normal nonemployment life.  Claimant has the burden of 
 
            proving this.  It appears that decedent did set-up work on 
 
            November 12 and 13, 1985.  This work involved assembling 
 
            30-40 wizard knives, pulling plastic off equipment, using 
 
            wrenches and screwdrivers, and could have involved sliding 
 
            or moving some machinery or equipment that weighed up to 300 
 
            pounds.  The distance the machinery and equipment had to be 
 
            slid is not known.  Decedent worked in temperatures varying 
 
            from approximately 34 to 70 degrees.  Witnesses Krueger, 
 
            Culbertson, and Wilson indicated that this work was not 
 
            heavy.  While witness Boyer indicated that the cellar 
 
            department set-up was very strenuous it is unclear what he 
 
            based that opinion on and it is unclear how much of the work 
 
            the decedent did in that department's set-up.  Boyer's 
 
            opinion can be given little weight.  The reliable evidence 
 
            in this case was that the set-up work was not heavy work.  
 
            Work done prior to November 12 is too far chronologically 
 
            removed to be considered as a factor in this case.  Even if 
 
            the work performed on November 11 was to be considered and 
 
            even if it was routine maintenance it is unclear what 
 
            decedent's exertion was.
 
            
 
                 Normal nonemployment life has some exertion.  Life is 
 
            not normally devoid of physical activity.  It cannot be said 
 
            from this record that the decedent's work activities, 
 
            November 11, 12, or 13, 1985, exceeded exertions of normal 
 
            nonemployment life.  Claimant has not proved that decedent's 
 
            work exertions were greater than the exertions of normal 
 
            nonemployment life.  Thus, claimant has not satisfied the 
 
            first standard of the legal test.
 
            
 
                 The second standard of the legal test is whether the 
 
            decedent's work exertions were greater than normal work.  
 
            Claimant clearly has not proved this standard.  It was the 
 
            universal opinion of the witnesses (for example Krueger and 
 
            Culbertson) that the set-up work done November 12 and 13 was 
 
            less strenuous than decedent's usual assignment of 
 
            maintenance work.  There is no showing that the maintenance 
 
            work decedent did on November 11 was more strenuous than the 
 
            usual maintenance work.
 
            
 
                 The third standard of the legal test is whether 
 
            decedent felt impelled to continue working after the onset 
 
            of a possible heart attack.  Claimant has clearly not met 
 
            this standard.  There is no evidence that decedent felt 
 
            compelled to continue working.  A general feeling of needing 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            to go to work which was apparently motivated in part to 
 
            avoid possible discipline for absenteeism is not a feeling 
 
            of being impelled to work.  In addition, given the medical 
 
            evidence in this case (as will be discussed more thoroughly 
 
            below) decedent did not continue work after the onset of the 
 
            fatal infarct.  Furthermore, it is impossible to tell 
 
            whether decedent's complaints of pain and sickness were for 
 
            the onset of a heart attack or for his other conditions.
 
            
 
                 Claimant has not proved any of the standards of the 
 
            legal test.  Claimant has not met the legal test.  
 
            Decedent's heart attack did not arise out of and in the 
 
            course of his employment.
 
            
 
                 The second issue to be determined in deciding the 
 
            instant case is whether claimant has proved by medical 
 
            evidence that medical test has been satisfied.  The claimant 
 
            must prove that the work exertions in fact caused the heart 
 
            attack.
 
            
 
                 Claimant must satisfy both the legal and the medical 
 
            tests.  Because claimant has not satisfied the legal test 
 
            consideration of the medical test will be for discussion 
 
            purposes only.
 
            
 
                 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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 There are three possible scenarios as to when 
 
            decedent's fatal myocardial infarction occurred.  None of 
 
            the possible scenarios met the medical test.
 
            
 
                 The first possible scenario is that based on Dr. 
 
            Bennett's opinion the fatal infarction was sudden.  Based on 
 
            the opinions of Dr. Bennett and Dr. Rohr and in large part 
 
            on the significant absence of neutrophilic cell invasion of 
 
            the heart muscle, it cannot be said that claimant has 
 
            established an ongoing myocardial infarction older than 
 
            perhaps noon on November 13, 1985.  It has not been shown 
 
            that there was any ongoing process beyond angina while 
 
            decedent worked in the several days prior to his death.
 
            
 
                 The opinions of numerous other highly-qualified 
 
            physicians appear of record, expressed both in this 
 
            contested case and in the early medical malpractice action.  
 
            There is much support for the view that, if decedent was 
 
            undergoing an ongoing myocardial infarction for several days 
 
            before his death, any activity whatsoever more strenuous 
 
            than bed rest would aggravate and accelerate the process, 
 
            certainly including decedent's work activities.  However, 
 
            since it has not been proven that the myocardial process 
 
            itself commenced before or contemporaneously with any work 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            activity, these opinions do not assist claimant.  The 
 
            forensic pathologists are best qualified to determine the 
 
            time of decedent's infarct.
 
            
 
                 There is no medical opinion that if the infarction 
 
            actually occurred no earlier than noon on November 13 (six 
 
            hours after decedent left work) that it was caused by the 
 
            work exertion.  Dr. Bennett opined that the work did not 
 
            precipitate the infarct.
 
            
 
                 The second possible scenario is based upon the opinions 
 
            of Dr. Iannone and Dr. Theilen.  This scenario is that there 
 
            was a series of nonfatal blood clots that resolved 
 
            themselves.  These developed over a period of time in the 
 
            last three days of decedent's life.  These blood clots may 
 
            or may not have caused permanent disability to the 
 
            decedent's heart.  The cause of decedent's death was the 
 
            infarction that was sufficient to cause cardiac death.  Dr. 
 
            Iannone thought that work exertion may have precipitated the 
 
            heart attack.  This is an opinion of possibility and does 
 
            not rise to the level of necessary probability.  It was Dr. 
 
            Theilen's opinion that the decedent's work activities 
 
            neither precipitated nor were a factor in his death.
 
            
 
                 The third possible scenario is based upon the opinion 
 
            of Dr. Joel From.  That scenario is that over the last three 
 
            days of decedent's life the fatal heart attack was a process 
 
            that culminated in death.  (This has been characterized as a 
 
            "stutter" heart attack).  It was his opinion that any 
 
            activity other than bed rest or medical treatment aggravated 
 
            the coronary insufficiency.
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  
 
            
 
                 The decedent's heart attack came about because of the 
 
            natural process.  Decedent's work was not a trauma that 
 
            caused his coronary deficiency.  Any activity short of 
 
            complete bed rest or medical treatment aggravated the 
 
            coronary insufficiency.  The medical evidence of Dr. Joel 
 
            From does not prove that decedent had a personal injury 
 
            caused by his employment.
 
            
 
                 In addition, even under the stutter heart attack theory 
 
            it is not clear when the stutter heart attack began.  It is 
 
            also unclear whether it was caused by decedent's work 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            activities or something else.  Dr. Theilen even thought it 
 
            may have begun on November 10 when decedent remained home 
 
            because he was not feeling well.
 
            
 
                 Drs. Bennett, Paul From, Kreamer, Sagall and Theilen 
 
            found no causal relationship between decedent's employment 
 
            and his myocardial infarction.  Drs. Bassiri, Joel From and 
 
            Iannone were of the opinion that decedent's coronary 
 
            deficiency was aggravated by his work activity.  Drs. 
 
            Bassiri, Joel From and Iannone did not, however, say that 
 
            the work activity was the probable cause or a substantial 
 
            factor in bringing about the fatal myocardial infarction or 
 
            the coronary deficiency.  Drs. Ravreby and Rohr said the 
 
            work could have caused the myocardial infarction.  A 
 
            probability is required.  The possible opinions of Drs. 
 
            Ravreby and Rohr do not meet the required probability.  All 
 
            these medical opinions do not give evidence that decedent's 
 
            work activity was the probable cause of his fatal myocardial 
 
            infarction.
 
            
 
                 The summary of the medical evidence is as follows:  The 
 
            fatal myocardial infarction occurred within six to eight 
 
            hours before death and was not work related.  The myocardial 
 
            infarction may have developed over a period of time and in 
 
            its initial stages resolved itself.  The self-resolving 
 
            myocardial infarction did not cause decedent's death and the 
 
            final fatal myocardial infarction was not work related.  The 
 
            myocardial infarction process may have developed over time.  
 
            That stutter heart attack was not caused by decedent's work.  
 
            Claimant has not met the medical test.
 
            
 
                 In summary, claimant has met neither the legal test nor 
 
            the medical test for proving that claimant's decedent's 
 
            myocardial infarction arose out of and in the course of his 
 
            employment.  Claimant's decedent's myocardial infarction did 
 
            not arise out of and in the course of his employment.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
                 That claimant shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            Mr. Paul E. Huscher
 
            Attorney at Law
 
            8450 Hickman Road, Suite 10
 
            Urbandale, Iowa  50322
 
            
 
            Mr. Fred D. Huebner
 
            Mr. Marvin E. Duckworth
 
            Mr. Jeff M. Margolin
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
                 
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                                             1100; 1108.10; 2202
 
                                             Filed September 29, 1992
 
                                             Byron K. Orton
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         MABEL C. RILEY, Surviving,      :
 
         Spouse and Administrator of     :
 
         the Estate of LARRY D. RILEY,   :       File No. 855427
 
         Deceased,                       :
 
                                         :          A P P E A L
 
              Claimant,                  :
 
                                         :        D E C I S I O N
 
         vs.                             :
 
                                         :
 
         OSCAR MAYER FOODS CORPORATION,  :
 
                                         :
 
              Employer,                  :
 
              Self-Insured,              :
 
              Defendant.                 :
 
         _________________________________________________________________
 
         
 
         1100; 1108.10; 2202
 
         Claimant must satisfy both a legal test and a medical test in 
 
         order to prove that a heart attack superimposed upon a 
 
         preexisting condition arose out of and in the course of 
 
         employment.  The legal test can be satisfied by meeting one of 
 
         three legal standards:  work exertion greater than nonemployment 
 
         life; work exertion greater than normal work exertion; or 
 
         employee impelled to continue exertion after onset of symptoms.  
 
         The medical test is satisfied if medical evidence shows that the 
 
         exertion in fact caused the heart attack.
 
         Claimant did not prove that the decedent's work exertions of 
 
         setting up at a packing plant involving assembling equipment, 
 
         using screwdrivers and wrenches, and possibly sliding equipment 
 
         was greater exertion than normal nonemployment life.  Decedent's 
 
         work the last two days of his life was lighter than his usual 
 
         job.  There was no evidence of a compulsion to continue work 
 
         after the onset of symptoms.  It was unclear when the onset of 
 
         the heart attack symptoms occurred and whether decedent was aware 
 
         of the onset.
 
         There was medical evidence that the fatal heart attack occurred 
 
         when decedent was not at work and was not caused by work.  
 
         Stutter heart attack theory of claimant was rejected.  Work may 
 
         have aggravated but did not cause the myocardial infarction.  If 
 
         the myocardial infarction was a stutter heart attack it was the 
 
         result of ordinary wear and tear on decedent's heart.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MABEL C. RILEY, Surviving     :
 
            Spouse and Administrator of   :
 
            the Estate of LARRY D. RILEY, :
 
            Deceased,                     :         File No. 855427
 
                                          :
 
                 Claimant,                :      A R B I T R A T I O N
 
                                          :
 
            vs.                           :         D E C I S I O N
 
                                          :
 
            OSCAR MAYER FOODS CORPORATION,:
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the August 29, 
 
            1987 petition of claimant Mabel C. Riley, surviving spouse 
 
            of decedent Larry D. Riley, who died as the result of 
 
            cardiac arrhythmia or myocardial infarction allegedly caused 
 
            or aggravated by his employment with self-insured defendant 
 
            Oscar Mayer Foods Corporation.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            November 20, 1990.  Mabel Riley testified personally, as did 
 
            Ronald Boyer and Mark D. Ravreby, M.D.  Numerous other 
 
            witnesses, including many highly qualified physicians, 
 
            testified by deposition.  Joint exhibits 2 through 35 were 
 
            received into evidence, as were defendant's exhibits A 
 
            through U.  Objections were interposed as to subexhibits 2, 
 
            3 and 4 of joint exhibit 1, and were taken under advisement.  
 
            The objections are now overruled and joint exhibit 1 is 
 
            received.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between Larry D. Riley (hereafter 
 
            "decedent") and defendant at the time of his death, and that 
 
            the appropriate rate of weekly benefits is $261.15.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether decedent's death resulted from injury 
 
            arising out of and in the course of his employment with 
 
            Oscar Mayer Foods Corporation; and,
 
            
 
                 2.  Whether claimant is entitled to medical and burial 
 
            benefits.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Decedent was employed since 1974 as a maintenance 
 
            department mechanic by Oscar Mayer Foods Corporation, a meat 
 
            processing enterprise.  His duties were wide ranging and 
 
            took him throughout the plant, which involved exposure to 
 
            temperature extremes.
 
            
 
                 Some years before his death, decedent suffered two 
 
            falls with resultant damage to his left shoulder.  Since 
 
            then, he suffered from and complained of pain on a daily 
 
            basis.  His attendance was irregular and on many occasions 
 
            he left work early due to complaints of pain.
 
            
 
                 Decedent died of a heart attack on November 13, 1985.  
 
            His surviving spouse, Mabel Riley, testified that as early 
 
            as November 9, decedent complained of fatigue, pain in the 
 
            center of his chest, neck, back and both arms, and looked 
 
            tired, pale, glassy-eyed and generally sick.  She gave 
 
            dramatic testimony as to decedent's continued course of 
 
            illness, specifying that he had the same complaints and 
 
            looked worse every day.  Although decedent continued to 
 
            work, Ms. Riley indicated that he engaged in almost no 
 
            activity at home, resting or lying on the floor for most of 
 
            the day while she massaged his neck for hours at a time.
 
            
 
                 However, Mabel Riley has not been shown to be a 
 
            reliable reporter of these events.  Testifying in a medical 
 
            malpractice action earlier litigated against decedent's 
 
            family physician and seeking damages for his untimely death, 
 
            Ms. Riley gave no indication that decedent suffered these 
 
            alarming problems in the several days immediately prior to 
 
            his death:
 
            
 
                 Q.  All right.  Do you remember Larry's activities 
 
                 on the 12th of November 1985, the day before his 
 
                 death?
 
            
 
                 A.  Yes.  He went to work as usual.  But at the 
 
                 time he had a cold and he wasn't feeling too well.  
 
                 But he went to work.  See, he used to get up at 
 
                 two in the morning and work from 3 to 11:30 in the 
 
                 morning and then he was taking up in the afternoon 
 
                 and sleep.  And he just wasn't feeling as well.
 
            
 
                 Q.  Did he then work the full shift that time?
 
            
 
                 A.  He worked the full shift that day.
 
            
 
                 Q.  All right.  Still complaining of the same kind 
 
                 of pain that he had before?
 
            
 
                 A.  Yes.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Q.  How about November 13, 1984 [sic]?
 
            
 
                 A.  November the 13th, he came home early that 
 
                 morning.  I believe it was before David left for 
 
                 school.  And then he come and took a hot bath.  
 
                 And he didn't -- he had a very light lunch that 
 
                 day.  And then about -- then he went back to sleep 
 
                 about one, couldn't sleep, and I believe he talked 
 
                 to Donnie and Patsy, my daughter-in-law that day, 
 
                 for a while.
 
            
 
                 Then he decided to go down to the drug store and 
 
                 buy some Advils, I think he bought.  He thought 
 
                 maybe these would help the pain, you know.  He 
 
                 thought maybe -- arthritis, they say it's a good 
 
                 pill to take.
 
            
 
                 So then around -- that must have been around 5:45 
 
                 when he went to the drug store.
 
            
 
                 Then he came home and he was sitting on the couch, 
 
                 and then that's when he had his heart attack.  The 
 
                 only ones that were there was me and David.  It 
 
                 happened around 7, 7:45, I believe.
 
            
 
            (Mabel Riley deposition, defendant's exhibit B, page 39, 
 
            line 16 through page 40, line 21)
 
            
 
                 Ms. Riley also testified that there was no change in 
 
            decedent's complaints during, at least, 1984, but that his 
 
            condition continued becoming worse.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            In the medical malpractice action based on tort, Mabel Riley 
 
            had an incentive to minimize decedent's complaints in the 
 
            days prior to his death, so as to reduce his comparative 
 
            negligence in the event of a favorable verdict.  In this 
 
            litigation, her theory of the case is that decedent suffered 
 
            a "stutter" type of infarction over a period of several days 
 
            before his death, and that work activities during this 
 
            process aggravated his condition and hastened his death.
 
            
 
                 As described by fellow workers and management, it seems 
 
            fair to characterize decedent's usual work as moderately 
 
            heavy, but requiring periods of strenuous exertion.  During 
 
            the several days prior to his death, decedent did not work 
 
            entirely at his usual job.  He worked in part on a fairly 
 
            major construction project (more strenuous than usual) and, 
 
            on his last day and part of the day before, substituted for 
 
            a suspended worker in a "set up" job which, although also 
 
            requiring periods of exertion, was less strenuous than his 
 
            customary work.
 
            
 
                 Ron Boyer was also employed in the maintenance 
 
            department at the time of decedent's death.  He testified at 
 
            hearing and by deposition on February 10, 1989.  He 
 
            frequently worked side-by-side with decedent, and worked the 
 
            same shift (not decedent's usual shift) on November 12 and 
 
            November 13.  This shift began at 11:00 p.m. and ended 7:30 
 
            a.m.  Mr. Boyer indicated that, as early as November 11, 
 
            decedent complained of feeling bad in the arms, shoulder and 
 
            neck and looked ill.  This was particularly true on 
 
            decedent's last shift from November 12 through the morning 
 
            of November 13.  Decedent complained of being sick and 
 
            suffering pain in the arms and shoulder and announced that 
 
            he was leaving early because "I've had all I can take."  
 
            However, decedent had finished his work before leaving and 
 
            Mr. Boyer agreed that he commonly complained of physical 
 
            ailments and had on a number of occasions left work early.
 
            
 
                 In fact, decedent left work at 6:12 a.m. on November 
 
            13, more than an hour early.  He returned home at 
 
            approximately 6:30 to 7:00 a.m., continuing to complain of 
 
            pain.  According to Mabel Riley, he did not leave the house 
 
            until going to a drug store to purchase a pain medication 
 
            after dinner and then, approximately 7:00 p.m., mumbled 
 
            something unintelligible (perhaps "Help me!") and fell from 
 
            the sofa where he had been watching television, striking his 
 
            head on the edge of a coffee table.
 
            
 
                 However, records of Dallas County Ambulance Service 
 
            appear to show that the first call was made at 20:21, or 
 
            8:21 p.m.  At 20:49, decedent showed zero respiratory rate, 
 
            zero pulse and blood pressure of 0/0.  Lung sounds were 
 
            present and described as moist.  Cardiopulmonary 
 
            resuscitation was unsuccessfully attempted.  Decedent was 
 
            received at the Dallas County Hospital emergency room at 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            9:00 p.m. without pulse or respirations.  Ventricular 
 
            defibrillation was repeatedly attempted without success and 
 
            CPR was discontinued at 9:24 p.m.  Based on this sequence of 
 
            events, it appears likely that decedent's collapse occurred 
 
            somewhat later than Mabel Riley recalls, probably by about 
 
            an hour.
 
            
 
                 An autopsy was performed on the following day by 
 
            William B. Rohr, M.D.  Dr. Rohr was at the time the State 
 
            Medical Examiner for this state and is a highly-qualified 
 
            pathologist indeed, triple board certified in anatomic, 
 
            clinical and forensic pathology.  Dr. Rohr testified by 
 
            deposition on March 1, 1990.
 
            
 
                 Dr. Rohr's autopsy report found evidence of 
 
            arteriosclerotic cardiovascular disease (with multiple 
 
            occlusions by plaque and thrombus of the left anterior 
 
            descending coronary artery and its diagonal branch and 
 
            patchy paleness of the posterior and lateral left 
 
            ventricular walls), hypertensive cardiovascular disease, 
 
            selective hypoplasia of the right coronary artery, mild 
 
            interstitial pneumonitis, visceral congestion and evidence 
 
            of an old thyroidectomy.  He concluded:
 
            
 
                 I am of the opinion that Larry Riley, a 47 year 
 
                 old white male, died as the result of severe 
 
                 hardening and narrowing of the arteries supplying 
 
                 the heart with blood, the sustained effects of 
 
                 high blood pressure and an unusually small artery 
 
                 supplying the heart with blood which was a defect 
 
                 present from birth.  The combined effects of these 
 
                 diseases made maintenance of a normal regular 
 
                 heartbeat difficult and resulted in the death of 
 
                 Mr. Riley.  Additionally, there is evidence of 
 
                 destroyed heart muscle (myocardial infarct).  This 
 
                 heart muscle had been destroyed for a period of 
 
                 less than 3 days.  Also present was a mild 
 
                 inflammation of the lungs which also would have 
 
                 made breathing difficult and could have also 
 
                 contributed to the fatal irregular heartbeat.
 
            
 
                 In a letter dated April 16, 1989, Dr. Rohr stated his 
 
            belief that decedent's myocardial infarction began one to 
 
            three days before his death.  However, in his deposition 
 
            testimony, Dr. Rohr was less definite:
 
            
 
                 Q.  Is that your last word or opinion on when the 
 
                 myocardial infarction began in Mr. Riley?
 
            
 
                 A.  Yeah.  What I'm saying is I can't tell when it 
 
                 occurred.  There are features here of necrosis of 
 
                 heart muscle, but, you know, I can't narrow it 
 
                 down to six to eight hours or within a two- or 
 
                 three-hour time frame.  There aren't enough 
 
                 sections there.
 
            
 
                 If you want to do that, you need to take many, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 many sections firstly, which we don't have.  The 
 
                 reason I took sections of the heart was not so 
 
                 much to age the infarct but to see if, in fact, 
 
                 there is an infarct there.  When I see paleness in 
 
                 the myocardium, it could be due to many factors, 
 
                 including that it was left on the cutting table 
 
                 for 20 or 30 minutes.  I am taking the section to 
 
                 see if, in fact, I have an infarct, that there is 
 
                 not a myocardiopathy or myocarditis.  If you want 
 
                 to age it, you have to take many, many sections.  
 
                 Not only that, because of the general features of 
 
                 the heart, the general condition of the heart, and 
 
                 what I'm seeing through the microscope, I can't do 
 
                 any better than less than three days of age.
 
            
 
            (Dr. Rohr deposition, page 16, line 22 through page 17, line 
 
            20)
 
            
 
                 Dr. Rohr also testified that the infarction could have 
 
            occurred only a few hours before death (which he defined as 
 
            9:42 p.m. when CPR was discontinued) or up to three days.  
 
            In his autopsy, Dr. Rohr took representative sections for 
 
            microscopic study so as to establish that a myocardial 
 
            infarction had occurred, but was not at that time attempting 
 
            to pin down the infarction as to time.  It is possible that 
 
            if more sections had been taken for microscopic study, 
 
            timing of the infarction might be timed with more precision.  
 
            For example, if decedent had suffered a "stutter" heart 
 
            attack over a period of days (thrombi forming and causing 
 
            the death of muscle tissue, then dissolving in a cyclical 
 
            pattern), further representative sections of muscle might 
 
            have shown infarcts of different age.  In the final 
 
            analysis:
 
            
 
                 Q.  So it is still your opinion, is it, Doctor, 
 
                 that the infarct could have occurred at any time 
 
                 within one to three days before his death?
 
            
 
                 A.  I think a better way of putting it is it 
 
                 occurred less than three days, somewhere between a 
 
                 few hours and three days.
 
            
 
            (Dr. Rohr deposition, page 42, lines 12 through 18)
 
            
 
                 Both Dr. Rohr, the former Iowa State Medical Examiner, 
 
            and Thomas L. Bennett, M.D., the current Iowa State Medical 
 
            Examiner, agreed that decedent's symptoms of angina prior to 
 
            his death did not necessarily infer that a myocardial 
 
            infarction was in process.  The infarction itself was no 
 
            doubt due to decedent's numerous risk factors:  high blood 
 
            pressure, family history, overweight, history of cigarette 
 
            smoking and the like.
 
            
 
                 Thomas L. Bennett, M.D., who testified by deposition on 
 
            October 3, 1990, is also a highly-qualified forensic 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            pathologist.  He also is triple board certified in anatomic, 
 
            clinical and forensic pathology.  Dr. Bennett did not 
 
            personally participate in the autopsy, but based his 
 
            opinions on the results of Dr. Rohr's report.  He believes 
 
            that the "recent acute myocardial infarction" reported by 
 
            Dr. Rohr could not have been one to three days old, but only 
 
            several hours old.  He notes that the autopsy report showed 
 
            necrosis of tissue, which is standard for an infarction of 
 
            six to eight hours in age (one in which there has been an 
 
            interruption in the blood flow for a period of at least four 
 
            hours to allow the heart muscle cells to die, or to become 
 
            necrotic), but particularly emphasizes the absence of cells 
 
            known as neutrophils:
 
            
 
                 [A.]  So you have a period of four to six hours 
 
                 after the infarct that the heart muscle will still 
 
                 be salvageable, but after that time it becomes 
 
                 necrotic; and then within a few hours afterwards, 
 
                 two hours or four hours, somewhere in that range, 
 
                 you then have the body come in to get rid of the 
 
                 dead, necrotic cells and replace it with scar 
 
                 tissue, the traditional body response to death of 
 
                 a part of the body.
 
            
 
                 In my opinion, this is a classic description of an 
 
                 infarct that is six to eight hours of age.  He 
 
                 describes no neutrophilic infiltration, so we know 
 
                 it is less than eight hours of age or so.  He 
 
                 describes the eosinophilic shrinkage (sic) of the 
 
                 myocardial fibers plus the -- or, I'm sorry, the 
 
                 smudging of the fibers plus the shrinking of the 
 
                 nuclei.  Those are signs of an infarct that is 
 
                 four hours or so, so you're narrowing it down to 
 
                 four to eight hours or so.  That's very good based 
 
                 on his description here.  That's again using his 
 
                 gross and microscopic description.
 
            
 
                 Q.  In your report of November 3, 1989, you 
 
                 express the opinion that the histologic changes 
 
                 were at most six to eight hours of age.  Would you 
 
                 tell us whether or not that is still your opinion.
 
            
 
                 A.  That is, and that's aging from the time of the 
 
                 infarct.  So yes, that is still my opinion.
 
            
 
            (Dr. Bennett deposition, page 24, line 23 through page 26, 
 
            line 2)
 
            
 
                 According to Dr. Bennett, if the infarction had 
 
            occurred more than six to eight hours before Mr. Riley's 
 
            death, neutrophilic cell invasion of the heart muscle would 
 
            have commenced and would have been reported by Dr. Rohr.  
 
            The infarction could be perhaps nine hours of age, but not 
 
            twelve to fourteen or more.
 
            
 
                 On the other hand, Dr. Rohr explained the absence of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            neutrophilic cell invasion by pointing out that decedent's 
 
            infarction was massive in nature, and that the loss of 
 
            circulation could have held up the neutrophilic cells and 
 
            prevented timely infiltration.
 
            
 
                 Thus, Dr. Bennett believes that the infarction which, 
 
            along with fibrillation which was associated with decedent's 
 
            demise, was six to eight, and no more than nine or so, hours 
 
            before death, while Dr. Rohr believes the infarction cannot 
 
            be so accurately timed, having occurred somewhere from 
 
            several hours to several days before death.  The pain 
 
            decedent reported in the at least one day before his death 
 
            could be attributed either to an ongoing myocardial process 
 
            or "stutter" heart attack, or to angina in the absence of 
 
            infarction.
 
            
 
                 Based on these opinions and in large part on the 
 
            significant absence of neutrophilic cell invasion of the 
 
            heart muscle, it cannot be said that claimant has 
 
            established an ongoing myocardial infarction older than 
 
            perhaps noon on November 13, 1985.  It has not been shown 
 
            that there was any ongoing process beyond angina while 
 
            decedent worked in the several days prior to his death.
 
            
 
                 The opinions of numerous other highly-qualified 
 
            physicians appear of record, expressed both in this 
 
            contested case and in the early medical malpractice action.  
 
            There is much support for the view that, if decedent was 
 
            undergoing an ongoing myocardial infarction for several days 
 
            before his death, any activity whatsoever more strenuous 
 
            than bed rest would aggravate and accelerate the process, 
 
            certainly including decedent's work activities.  However, 
 
            since it has not been proven that the myocardial process 
 
            itself commenced before or contemporaneously with any work 
 
            activity, these opinions do not assist claimant.  The 
 
            forensic pathologists are best qualified to determine the 
 
            time of decedent's infarct.
 
            
 
                                conclusions of law
 
            
 
                 Decedent's arteriosclerotic cardiac condition certainly 
 
            preexisted his fatal infarction/fibrillation.  Individuals 
 
            with preexisting heart conditions have been permitted 
 
            recovery in such cases either where the work requires heavy 
 
            exertions which, superimposed on an already-defective heart, 
 
            aggravate or accelerate the condition, or where unusually 
 
            strenuous employment exertion results in a heart injury.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  
 
            There must be a direct causal connection between the 
 
            employment exertion and the resulting injury before 
 
            compensation is appropriate.  Littell v. Lagomarcino Grupe 
 
            Co., 235 Iowa 523, 17 N.W.2d 120 (1945).  It remains, of 
 
            course, claimant's burden to establish that decedent's 
 
            injury arose out of and in the course of his employment, 
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            (1965), and that a mere possibility of such is insufficient; 
 
            rather, a probability is necessary.  Burt v. John Deere 
 
            Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).
 
            
 
                 If it were established that decedent's myocardial 
 
            infarction commenced before or during his work and that he 
 
            continued to work to his detriment and eventual death, there 
 
            is authority for compensability.  Varied Enterprises, Inc. 
 
            v. Sumner, 353 N.W.2d 407 (Iowa 1984).  However, it must be 
 
            concluded that claimant has established only a possibility 
 
            that decedent's infarction occurred during or before his 
 
            last shift at work, and not a probability.  On the contrary, 
 
            this observer feels it more probable that the infarction 
 
            occurred no earlier than perhaps noon on the day of Mr. 
 
            Riley's death, almost six hours after he left work for the 
 
            final time.  There is widespread agreement that Mr. Riley's 
 
            fatal infarction and/or fibrillation was related to his 
 
            arteriosclerotic condition.  It has not been shown that work 
 
            activities contributed to, aggravated or accelerated that 
 
            condition.  Accordingly, defendant must prevail.
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The costs of this action are assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Paul E. Huscher
 
            Attorney at Law
 
            8450 Hickman Road, Suite 10
 
            Urbandale, Iowa  50322
 
            
 
            Mr. Fred D. Huebner
 
            Mr. Marvin E. Duckworth
 
            Mr. Jeff M. Margolin
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.10; 2202
 
                           Filed June 25, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MABEL C. RILEY, Surviving     :
 
            Spouse and Administrator of   :
 
            the Estate of LARRY D. RILEY, :
 
            Deceased, :         File No. 855427
 
                      :
 
                 Claimant, :      A R B I T R A T I O N
 
                      :
 
            vs.       :         D E C I S I O N
 
                      :
 
            OSCAR MAYER FOODS CORPORATION,:
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1108.10; 2202
 
            Decedent collapsed at home, about 14 hours after he left 
 
            work early, complaining of pain.  He died shortly thereafter 
 
            of cardiac arrhythmia and/or myocardial infarction.
 
            Decedent had angina-like symptoms for several days before 
 
            his death.  These were consistent either with simple angina 
 
            or an ongoing "stutter" type of infarction.
 
            Autopsy report failed to show invasion by neutrophilic cells 
 
            which normally infiltrate at about eight hours 
 
            post-infarction (decedent's heart had necrosis, consistent 
 
            with infarct at least four hours old).  This evidence tended 
 
            to show that infarct was recent, and that decedent did not 
 
            continue to work while suffering an infarct.
 
            One pathologist thought infarct was from several hours to 
 
            three days old, but could not be more definite.  Another 
 
            pathologist thought infarct was not more than ten hours old.
 
            Claimant showed only a possibility, not a probability, that 
 
            infarct was aggravated by working during the event.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SCOTT LAUGHLIN,     :
 
                      :
 
                 Claimant, :      File No. 855440
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            WATERLOO CONSTRUCTION    :       D E C I S I O N
 
            COMPANY, INC., :
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed February 4, 1991 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal.
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette Street, Ste. 300
 
            P.O. Box 178
 
            Waterloo, Iowa 50704
 
            
 
            Mr. David R. Mason
 
            Mr. Steven D. Moore
 
            Attorneys at Law
 
            315 Clay Street
 
            P.O. Box 627
 
            Cedar Falls, Iowa 50613
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      9998
 
                      Filed September 20, 1991
 
                      BYRON K. ORTON
 
                      MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SCOTT LAUGHLIN,     :
 
                      :
 
                 Claimant, :      File No. 855440
 
                      :
 
            vs.       :        A P P E A L
 
                      :
 
            WATERLOO CONSTRUCTION    :      D E C I S I O N
 
            COMPANY, INC.  :
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            4, 1991.
 
            
 
 
            
 
 
 
 
 
 
 
          
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DONALD OSBORNE,
 
         
 
              Claimant,                               File No. 855450
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         CITY OF COUNCIL BLUFFS,                      D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        DEC 01 1989
 
         ARGONAUT INSURANCE COMPANIES,
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Donald Osborne against defendant employer City of Council Bluffs 
 
         and defendant insurance carrier Argonaut Insurance Companies to 
 
         recover benefits under.the Iowa Workers' Compensation Act as the 
 
         result of an alleged injury sustained on May 6, 1987.  This 
 
         matter came on for hearing before the undersigned in Council 
 
         Bluffs, Iowa, on August 30, 1989.  The matter was considered 
 
         fully submitted at the close of hearing, although defendants 
 
         subsequently submitted a brief.  The record in the proceeding 
 
         consists of joint exhibit 1, defendants' exhibit A, and the 
 
         testimony of claimant, Delbert Burdick, and Richard Montgomery.
 
         
 
                                  ISSUES
 
         
 
              Claimant specified at hearing that the only relief sought is 
 
         temporary total disability benefits.and medical benefits. 
 
         Otherwise, pursuant to the prehearing report submitted and 
 
         approved at hearing, the parties have stipulated:  That an 
 
         employment relationship existed between claimant and employer at 
 
         the time of the alleged injury; that the time for which claimant 
 
         seeks temporary total disability benefits is from May 30, 1987 
 
         through January 24, 1988; that the appropriate rate of weekly 
 
         compensation is $214.06; that the fees charged for medical 
 
         services and supplies are fair and reasonable and incurred for 
 
         reasonable and necessary medical treatment; that payment of sick 
 
         pay/disability income in the amount of $13,615.35 and 
 
         medical/hospitalization expenses in the amount of $5,171.18 were 
 
         paid to claimant and defendants seek credit under Iowa Code 
 
         section 85.38(2).
 
         
 
              Issues presented for resolution include:  Whether claimant 
 
         sustained an injury on May 6, 1987, arising out of and in the 
 
                                                
 
                                                         
 
         course of his employment; whether the alleged injury caused, and 
 
         the extent of, temporary disability; the extent of claimant's 
 
         entitlement to medical benefits.
 
         
 
              Defendants asserted a notice defense under Iowa Code section 
 
         85.23.  However, defendants waived that defense in the letter 
 
         brief filed September 26, 1989.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is currently employed as an EMT I 
 
         (emergency medical technician), and that he began his work in 
 
         1968.  His employer at that time was Pottawattamie County, but 
 
         the city of Council Bluffs later took over emergency ambulance 
 
         service.  Claimant's work included rescue work and ambulance 
 
         driving.
 
         
 
              At the time of the claimed injury, May 6, 1987, claimant 
 
         testified that he was riding with a unit of the Omaha Fire 
 
         Department pursuant to certain paramedic training he was then 
 
         undertaking at Creighton University.  Claimant accompanied the 
 
         unit on a trip to render assistance following a school bus/car 
 
         collision.  Claimant testified that as he got out of the unit in 
 
         back, some person accidentally closed a side door on his right 
 
         knee. Claimant did not seek immediate medical treatment.
 
         
 
              Claimant further testified to a history of knee surgery in 
 
         approximately 1970.
 
         
 
              Claimant testified that following the subject injury he was 
 
         initially treated with physical therapy, but after a 
 
         recommendation obtained at the Mayo Clinic in Minnesota, he 
 
         underwent arthroscopic surgery.
 
         
 
              Claimant also gave substantial testimony going to the issue 
 
         of whether his training course was connected to his employment. 
 
         Witnesses Burdick and Montgomery testified primarily on that 
 
         issue, although Dick Montgomery further specified that claimant 
 
         did inform him of the injury, but he was unable to recall the 
 
         date.
 
         
 
              Medical records of Bernard Kratochvil, M.D., reflect that 
 
         claimant underwent an arthrotomy of the right knee on June 8, 
 
         1970.  The medial meniscus and lateral meniscus were removed.
 
         
 
              Claimant saw Ronald K. Miller, M.D., of Orthopaedic 
 
         Associates, P.C., on May 13, 1987.  This was the first medical 
 
         treatment claimant sought after the claimed work injury.  Dr. 
 
         Miller made the following notation as to the history claimant 
 
         gave at that time:
 
         
 
              This gentleman is having problems with his right knee. 
 
              Several years ago he injured the knee on the job when 
 
              working and exiting the rear of an ambulance he apparently 
 
              slipped on ice.  He was treated by Dr. Kratochvil with 
 
                                                
 
                                                         
 
                   medial and lateral meniscectomy.  Since that time he has 
 
              noted persistent problems which have slowly gradually 
 
              increased.  He is having pain and swelling and notices a 
 
              lock.  Notices giving out, popping and a mass on the medial 
 
              side of his right knee.
 
         
 
              Dr. Miller eventually performed outpatient surgery on August 
 
         7, 1987.  The surgery is described as arthroscopy, resection of 
 
         lateral meniscus, shaving and a debridement chondroplasty of 
 
         mediofemoral condyle and medial tibial plateau.  His diagnosis 
 
         was of arthritis in the right knee.  Dr. Miller's medical records 
 
         make no mention whatsoever of a traumatic episode such as 
 
         claimant described in his testimony.
 
         
 
              Claimant was also seen at the Mayo Clinic on July 24, 1987. 
 
         The records of Mayo Clinic were summarized in an August 5, 1987 
 
         letter to Dr. Miller over the signature of F. H. Sim, M.D.  Dr. 
 
         Sim described claimant's history as follows:
 
         
 
              He is a 49-year-old gentleman who presented with a difficult 
 
              problem of degenerative joint disease of his right knee.  He 
 
              has been having increasing pain and disability.  He notes 
 
              that the pain is present rather constantly, at rest as well 
 
              as with activity.  He has been off work or at light duty 
 
              because of his duties as an emergency worker and carrying 
 
              heavy people.  In addition to the pain, he notes a sensation 
 
              of catching.  He has difficulty with stairs, which is 
 
              related to the severe degenerative changes in the 
 
              patellofemoral joint.
 
         
 
              Dr. Sim felt that claimant would need a total knee 
 
         arthroplasty.  However, he noted that claimant was too heavy at 
 
         present to proceed with such surgery and advised a weight loss of 
 
         100 pounds.  Dr. Sim makes no mention of the claimed traumatic 
 
         incident that is the subject of this action.
 
         
 
              Claimant was also seen by Samar K. Ray, M.D.  Dr. Ray's 
 
         notes of November 5, 1987 reflect the following history given to 
 
         him:
 
         
 
              Don says he is employed in the rescue squad of the ambulance 
 
              in Council Bluffs.  He said 17 yrs ago he had a twisting 
 
              injury to his knee while coming out of the ambulance and 
 
              following that sustained torn medial and lateral meniscus of 
 
              rt. knee.  Ultimately he had medial and lateral meniscectomy 
 
              of the knee.  He said since then he was doing very well but 
 
              for the last 9 mo. he started having considerable discomfort 
 
              in his rt. knee.  It came to the point where he could hardly 
 
              walk.
 
         
 
              Ultimately he was seen by a doctor in Council Bluffs and was 
 
              told that he had degenerative arthritis of the knee and had 
 
              arthroscopic surgery of the knee.
 
         
 
              Dr. Ray's impression was of marked degenerative arthritis of 
 
                                                
 
                                                         
 
         the right knee.  Dr. Ray's notes and records make no mention of 
 
         the claimed traumatic episode.
 
         
 
              Claimant was seen at the Department of Physical Therapy of 
 
         Jennie Edmundson Memorial Hospital in Council Bluffs.  Notes of 
 
         May 14, 1987 prepared by physical therapist T. Nelson reflect no 
 
         mention of the claimed work injury.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 6, 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).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 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 v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 6, 1987 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).
 
         
 
              Much of the dispute in this case concerns the issue of 
 
         whether claimant's presence while on training in an Omaha 
 
         emergency unit can be considered to be "in the course" of his 
 
         employment with defendant city of Council Bluffs.  However, it is 
 
         unnecessary to reach that question because claimant has failed to 
 
         meet his burden of proof in establishing an injury arising out of 
 
         his employment.
 
         
 
              Claimant's testimony makes reference to a traumatic event as 
 
         causing the injury that eventually required surgery.  However, 
 
         the medical records in this case are absolutely barren of any 
 
         mention of such an incident.  When claimant first sought medical 
 
         treatment from Dr. Miller, he made mention of "persistent 
 
         problems which have slowly gradually increased."  It appears 
 
         obvious to the undersigned that if an individual is seeking 
 
         medical treatment because of a traumatic injury, any individual 
 
         of at least average intelligence would assist the treating 
 
         physician by specifying that such an injury actually occurred.  A 
 
         history of slowly increasing symptoms is not consistent with 
 
         claimant's theory in this case.  However, a history of slowly 
 
         increasing symptoms appears entirely consistent with claimant's 
 
         history of previous surgery to his knee and eventual diagnosis of 
 
         arthritis.  Claimant lacks credibility and has failed to meet his 
 
         burden of proof in establishing that any such traumatic incident 
 
                                                
 
                                                         
 
         as he alleges actually occurred.  Therefore, his claim for 
 
         benefits must fail.
 
         
 
                              FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant was employed by defendant city 
 
         of Council Bluffs on May 6, 1987.
 
         
 
              2.  Claimant has a history of surgery to the right knee for 
 
         which he underwent medial and lateral meniscectomy in 1970.
 
         
 
              3.  Claimant has not shown that he suffered a traumatic 
 
         injury as claimed on May 6, 1987.
 
         
 
                            CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant has.failed to establish by his burden of proof 
 
         that he sustained an injury arising out of his employment on May 
 
         6, 1987.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action shall be assessed to claimant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 1st day.of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Murphy
 
         Attorney at Law
 
         100 - 101 Park Building
 
         Council Bluffs, Iowa  51501
 
         
 
         Mr. Barry Moranville
 
                                                
 
                                                         
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa  50312
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.30
 
                                            Filed December 1, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD OSBORNE,
 
         
 
              Claimant,
 
         
 
         vs.                                            File No. 855450
 
         
 
         CITY OF COUNCIL BLUFFS,                     A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         ARGONAUT INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.30
 
         
 
              Claimant's alleged traumatic work injury was inconsistent 
 
         with all medical records and history.  He failed to meet his 
 
         burden of proving an injury arising out of employment.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HOWARD RUSSELL,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File Nos. 838566
 
            CONSUMER NEWS PUBLICATIONS    :                   855454
 
            INC.,                         :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL         :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision resolves two proceedings in arbitration 
 
            brought by Howard Russell against his former employer, 
 
            Consumer News Publications, Inc., and its insurance carrier, 
 
            Northwestern National Insurance Company.  The cases are 
 
            based upon injuries that are stipulated to have occurred on 
 
            October 20, 1986 (file number 855454) and November 28, 1986 
 
            (file number 838566).  Claimant seeks compensation for 
 
            healing period and permanent disability.  He claims to be 
 
            totally disabled.  Claimant also seeks additional 
 
            compensation under the fourth unnumbered paragraph of Iowa 
 
            Code section 86.13 based upon the interruption of benefits 
 
            which occurred from July 30, 1987 through March 30, 1988.
 
            
 
                 The occurrence of the two injuries was stipulated.  The 
 
            primary issues to be determined are whether either or both 
 
            of the injuries produced any disability for which claimant 
 
            is entitled to recover compensation; whether the 
 
            interruption of benefits or delay of weekly compensation 
 
            payments was unreasonable; determination of claimant's 
 
            entitlement to weekly compensation for temporary or 
 
            permanent disability.
 
            
 
                 The case was heard at Waterloo, Iowa on July 25, 1990. 
 
            The evidence consists of testimony from Howard Russell, 
 
            Pamela Russell and Victor Laughlin.  The record also 
 
            contains claimant's exhibits A through P and defendants' 
 
            exhibits 1 through 53.  Exhibits 1 through 50 are 
 
            photographs.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            following findings of fact are made.
 
            
 
                 Howard Russell is a 39-year-old married man who dropped 
 
            out of school during the eighth grade.  He was a poor 
 
            student, does not read or write well and is not good with 
 
            math.  In approximately 1985, he attempted to obtain a GED, 
 
            but was unsuccessful.
 
            
 
                 The bulk of Howard's work history is in the 
 
            construction trades, work which required bending, lifting, 
 
            hammering and similar activities.  He has also worked as a 
 
            cemetery caretaker and service station attendant.  Howard 
 
            feels that he is presently unable to perform all the duties 
 
            which are required for a person to be employed in any of 
 
            those types of occupations.  He has never held an office job 
 
            or sit-down job.  Prior to working for the employer in this 
 
            case, Howard was self-employed in the home repair business.  
 
            He stated that his home repair abilities have been greatly 
 
            reduced since his injuries.
 
            
 
                 Howard began working for Consumer News Publications, 
 
            Inc., in approximately January, 1986.  The business 
 
            published and distributed "The Hometowner" newspaper.  
 
            Howard's job was to drive a truck, load papers into the 
 
            truck, and then drive the truck to a number of distribution 
 
            centers where he would unload the bundles of papers.  Other 
 
            persons then delivered the individual newspapers.
 
            
 
                 According to Howard, he was able to perform all his 
 
            duties, was unrestricted and in good condition prior to 
 
            October 20, 1986, the date when he jumped out of the back of 
 
            the truck with bundles in his hands and felt the onset of 
 
            pain in his back and neck when he hit the ground.  Howard 
 
            received chiropractic treatment and continued working until 
 
            sustaining the second injury which is the subject of this 
 
            proceeding.
 
            
 
                 On November 28, 1986, Howard's foot slipped while he 
 
            was attempting to leap up into the back of the truck causing 
 
            him to fall.  His face hit the back of the truck and he fell 
 
            to the ground.  He continued working and was subsequently 
 
            found to have fractured some bones in his face.  He was 
 
            observed to have blood in his eye and coming from his mouth.  
 
            Howard stated that he hurt all over and that the incident 
 
            made his shoulders feel as though they were out of place.
 
            
 
                 Howard sought medical treatment which included 
 
            treatment at the University of Iowa Hospitals at Iowa City.  
 
            He complained of a shadow in his vision which has continued 
 
            to the present time.  He related at hearing that the vision 
 
            problem is the only one which he continues to experience as 
 
            a result of the injury to his face.  Howard has not returned 
 
            to work for the defendant employer in this case.  He has not 
 
            been released to return to work, though he did resume work 
 
            in mid- to late-1987 for a period of approximately one 
 
            month.  That job at Performance Carbide is the only one for 
 
            which he has applied since the injury.  Howard quit the 
 
            Performance Carbide job because he felt that he was unable 
 
            to stand long enough to perform the work.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant continued to have symptoms and eventually was 
 
            diagnosed as having a ruptured disc at the sixth cervical 
 
            vertebra.  On March 31, 1988, James E. Crouse, M.D., a 
 
            Waterloo, Iowa orthopaedic surgeon, performed surgery 
 
            consisting of excision of the sixth cervical disc and 
 
            anterior interbody fusion (exhibit O; exhibit A, page 11).  
 
            According to Howard, the surgery relieved some of the pain, 
 
            but he continues to experience pain which is disabling.  
 
            According to Howard, the symptoms in his neck and shoulders 
 
            have worsened.  He related that Dr. Crouse has found another 
 
            disc for which surgery has been recommended.
 
            
 
                 Howard stated that he has tried to work since the 
 
            injury and surgery and that he can perform some activities 
 
            for a while, but then has to quit.  He stated that he can 
 
            "doodle" around for a time and perform things such as 
 
            hammering or painting with a roller, but that his arms then 
 
            go to sleep.  He described a typical day as spending time 
 
            with his 19-year-old son and a nephew.  Howard stated that 
 
            he supervises them and instructs them in how to perform home 
 
            repair work.  Howard stated that, when a customer pays him, 
 
            he give all the money to the boys since they are the ones 
 
            which actually perform the work.
 
            
 
                 Howard does little around his home.  He watches TV and 
 
            performs some housekeeping chores.  He can operate a riding 
 
            lawn mower for 15 or 20 minutes.  He will go fishing if he 
 
            can find a companion to help with the boat.  Howard stated 
 
            that his ability to walk is limited to three or four blocks 
 
            because it jars his head and neck.  He feels that he can sit 
 
            for only approximately 30 minutes before neck pain begins.  
 
            He can drive short distances.
 
            
 
                 Pamela Russell, Howard's wife, currently works as a 
 
            clerk at a Waterloo department store.  Pamela denied having 
 
            knowledge of any problem with Howard's neck prior to the 
 
            incidents which are the subject of this litigation.
 
            
 
                 Pamela related that Howard is in pain.  She feels that 
 
            he is deteriorating.  He has demonstrated no ambition and 
 
            generally does not want to go anywhere or do anything.
 
            
 
                 Victor Laughlin, a private detective, conducted 
 
            surveillance of the claimant during the period of May, 1990 
 
            through July, 1990.  The surveillance photos and Laughlin's 
 
            testimony demonstrate that Howard is capable of performing 
 
            some types of work activities.  According to Laughlin, 
 
            claimant walked without any apparent limp.  He once observed 
 
            Howard run in order to avoid getting wet when it was 
 
            raining.
 
            
 
                 Claimant's treating surgeon has been James E. Crouse, 
 
            M.D.  Dr. Crouse felt that the herniated cervical disc 
 
            condition for which he treated Howard had resulted from the 
 
            November 28, 1986 fall (exhibit A, page 11).  That 
 
            assessment is accepted as being correct.  The October injury 
 
            appears to have been minor in nature.  It did not require 
 
            Howard to miss work.
 
            
 
                 In view of Howard's continuing complaints, further 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            diagnostic tests have been conducted.  All have failed to 
 
            demonstrate any abnormality which would be consistent with 
 
            his stated symptoms, except for a discogram which was 
 
            administered in April, 1990 (exhibit A, pages 15, 16 and 30; 
 
            exhibit G).  Dr. Crouse feels that claimant should have 
 
            further surgery, but it is not currently scheduled.  He 
 
            indicated that he has always expected further significant 
 
            improvement from claimant, but that if claimant does not 
 
            have the recommended surgery, improvement will cease.  He 
 
            feels that the surgery will improve claimant's condition 
 
            (exhibit A, pages 17 and 18).  Dr. Crouse also stated that 
 
            he agreed that in December, 1988, claimant was still 
 
            recovering and that a period of 12-18 months from the date 
 
            of surgery should be allowed in order to complete his 
 
            recovery (exhibit A, pages 14 and 15).
 
            
 
                 Dr. Crouse stated that claimant will have a 15 percent 
 
            permanent impairment of the body as a whole if he does not 
 
            have the second surgery.  He feels that claimant is 
 
            currently totally disabled.  He relates claimant's headaches 
 
            to the neck injury (exhibit A, pages 18 and 19).  Dr. Crouse 
 
            recommended that claimant follow activity restrictions 
 
            consisting of lifting no more than 10 or 15 pounds, and 
 
            avoidance of pushing and pulling with his arms.  Dr. Crouse 
 
            recommended that claimant change positions every 15-30 
 
            minutes.  He felt claimant could use hand tools and drive, 
 
            but that he would be limited.  He felt that claimant would 
 
            be unable to work a full eight-hour day (exhibit A, pages 
 
            22, 23, 34 and 39).  Dr. Crouse feels that claimant is 
 
            probably somewhat depressed and will also need ongoing 
 
            prescription medications (exhibit A, pages 24, 25 and 37).
 
            
 
                 Claimant was evaluated by Cedar Rapids orthopaedic 
 
            surgeon W. John Robb, M.D.  Dr. Robb found slight 
 
            restriction of claimant's range of motion of his neck when 
 
            turning to the left and looking up.  He found minor 
 
            tenderness, but no muscle spasm.  He found claimant's 
 
            reflexes to be present and equal bilaterally.  No atrophy or 
 
            loss of sensation was identified.  Claimant's intrinsic 
 
            muscles were found to be strong and intact and his grip 
 
            strength was equal bilaterally (exhibit 53, pages 9-14).  
 
            Dr. Robb diagnosed claimant as having chronic pain syndrome, 
 
            myofascial strain of the neck and psychosomatic disease 
 
            (exhibit 53, page 16).
 
            
 
                 Dr. Robb rated claimant as having a five percent 
 
            permanent partial impairment of the body as a whole (exhibit 
 
            53, page 24).  He felt there was a discrepancy between the 
 
            results of his examination and claimant's stated complaints.  
 
            He found no objective findings to substantiate the 
 
            complaints (exhibit 53, pages 19-23).  He recommended 
 
            against further surgery or chiropractic treatments (exhibit 
 
            53, pages 21-24).
 
            
 
                 Dr. Robb agreed that claimant is presently unable to 
 
            perform any of the types of work which he had performed 
 
            prior to the injury, but he felt that the status is due to 
 
            deconditioning.  He felt that, if claimant would participate 
 
            in a physical fitness program, he would regain the ability 
 
            to perform much of his customary work.  A pain clinic 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            evaluation was recommended (exhibit 53, pages 26-29).
 
            
 
                 Dr. Robb indicated that claimant has a psychological 
 
            condition caused by the injury which has prevented him from 
 
            returning to work and that claimant's psychiatric care is 
 
            due to the injury (exhibit 53, pages 30, 44 and 45).
 
            
 
                 Claimant was evaluated at the University of Iowa 
 
            Hospitals on December 22, 1988 by Dr. Clark.  At that time, 
 
            Dr. Clark indicated that Howard had not reached maximum 
 
            healing and that a period of from 12-18 months should be 
 
            allowed following the date of surgery in order to complete 
 
            recuperation.  His report indicates that it is difficult to 
 
            determine if the symptoms claimant described were related to 
 
            the original injury.  Dr. Clark also recommended evaluation 
 
            for pain clinic treatment (exhibit N).  Claimant was  
 
            evaluated by M. Eyad Dughly, M.D., and treated during a 
 
            period running from October, 1988 through September, 1989.  
 
            A mild chronic radiculopathy of C6-8 was diagnosed.  Dr. 
 
            Dughly reported that when claimant was last seen on 
 
            September 13, 1989, his stated complaints had worsened, but 
 
            that the objective examination which was conducted revealed 
 
            significant improvement in claimant's condition (exhibit J; 
 
            exhibit 51).
 
            
 
                 Howard has received physical therapy for his 
 
            deconditioned state (exhibit H).
 
            
 
                 This case presents with stated complaints which greatly 
 
            outweigh the objective physical findings which have been 
 
            made by any of the physicians.  The assessment of the case 
 
            made by Dr. Robb is found to be more correct than that of 
 
            Dr. Crouse.  It is particularly noted that both Dr. Robb and 
 
            Dr. Dughly indicated discrepancy between the level of 
 
            Howard's complaints and the objective physical findings.  
 
            The objective physical findings as shown in the record of 
 
            this case by diagnostic tests and the assessments of the 
 
            physicians do not substantiate a high level of physical 
 
            impairment or physical disability.  Even if the assessment 
 
            from Dr. Clark is accepted, the period of 18 months 
 
            following surgery which was allowed for recuperation would 
 
            have ended on September 30, 1989.  Even Dr. Crouse has 
 
            agreed that claimant has not seemed to achieve much 
 
            improvement.  The records from Dr. Dughly indicate some 
 
            improvement as of the September 13, 1989 office visit.  Dr. 
 
            Robb has provided an impairment rating indicating that he 
 
            feels further improvement is not forthcoming.  It is 
 
            specifically found that significant improvement from the 
 
            injury was not anticipated subsequent to September 30, 1989.
 
            
 
                 Weekly benefits were terminated from July 30, 1987 
 
            through March 30, 1988.  A close review of the medical 
 
            evidence indicates that no particular diagnosis of any 
 
            abnormality had been made at that time.  It was a time when 
 
            Howard's complaints could not be corroborated by medical 
 
            findings.  Under these circumstances, it was not 
 
            unreasonable for weekly benefits to be terminated, even 
 
            though that termination was incorrect.  The long delay that 
 
            occurred between the diagnosis of the disc problem and the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            injury is sufficient to raise a reasonable question or doubt 
 
            as to causation.  Again, the failure to reinstate weekly 
 
            benefits at an earlier date was incorrect, but not 
 
            unreasonable.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The disability which has and continues to afflict 
 
            Howard Russell was proximately caused by the November 28, 
 
            1986 injury.  He has no entitlement to any recovery from the 
 
            October 20, 1986 injury, file number 855454.
 
            
 
                 Howard Russell is entitled to recover healing period 
 
            compensation, pursuant to Iowa Code section 85.34(1), until 
 
            September 30, 1989 consistent with the opinion from Dr. 
 
            Clark.  The record actually reflects that Dr. Crouse had 
 
            hoped for further improvement, but it was not forthcoming.  
 
            The record shows no reason why any hope or expectation for 
 
            further improvement after September 30, 1989 was reasonable.  
 
            Interestingly, when deposed, Dr. Crouse indicated that the 
 
            period of recuperation from the second surgery which he has 
 
            recommended would require only approximately four months 
 
            (exhibit A, pages 21 and 22).  The record contains no 
 
            explanation as to why a person could recover from one 
 
            surgery in approximately four months, but require 
 
            approximately 18 months to recover from a similar surgery.
 
            
 
                 Both Drs. Crouse and Robb have assigned permanent 
 
            impairment ratings.  The range is from 5-15 percent.  Howard 
 
            Russell has not resumed work since his surgery.  The scope 
 
            of his activities as shown on the photographs in evidence 
 
            exceeds what would normally be expected for a person who is 
 
            totally disabled.  The photographs are not, however, highly 
 
            probative as it is quite difficult to accurately evaluate 
 
            the strenuousness or exertional requirements of any activity 
 
            from still photos.  It is specifically determined that 
 
            Howard Russell does have significant permanent impairment 
 
            and physical limitation due to his cervical injury which 
 
            occurred on November 28, 1986.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).  Howard's lack of a 
 
            formal education is a very substantial factor in this case.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Howard's lack of returning to work is determined to not 
 
            be an accurate indicator of his actual earning capacity.  
 
            The record shows that he has applied for one job since the 
 
            1986 injuries and he obtained that job.  The record of this 
 
            case does not contain any doctor's statement or 
 
            recommendation that he quit that job.  It appears as though 
 
            he did so of his own accord.  There seems to be an 
 
            unresolved issue regarding whether or not claimant has a 
 
            second surgical disc problem and whether or not surgery is 
 
            warranted.  There is a recommendation for pain center or 
 
            psychological care.  Those issues are not addressed in this 
 
            decision.  This decision is made based upon the condition of 
 
            the claimant as he appeared at the time of hearing.  It is 
 
            determined that Howard Russell has a 40 percent permanent 
 
            partial disability under Iowa Code section 85.34(2)(u) which 
 
            entitles him to receive 200 weeks of permanent partial 
 
            disability compensation.
 
            
 
                 It has previously been found that the interruption of 
 
            weekly benefits was not unreasonable under the circumstances 
 
            which existed.  No penalty will therefore be awarded.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that under file number 838566 
 
            defendants pay Howard Russell one hundred forty-four and 
 
            two-sevenths (144 2/7) weeks of compensation for healing 
 
            period at the stipulated rate of one hundred sixty-three and 
 
            56/100 dollars ($163.56) per week payable commencing 
 
            November 28, 1986 and running through September 30, 1989, 
 
            except for four (4) weeks running from July 30, 1987 through 
 
            August 26, 1987 when claimant returned to work.
 
            
 
                 IT IS FURTHER ORDERED that under file number 838566 
 
            defendants pay Howard Russell two hundred (200) weeks of 
 
            compensation for permanent partial disability at the 
 
            stipulated rate of one hundred sixty-three and 56/100 
 
            dollars ($163.56) per week payable commencing October 1, 
 
            1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants receive credit 
 
            for all weekly compensation previously paid and shall pay 
 
            all past due amounts in a lump sum together with interest 
 
            computed pursuant to Iowa Code section 85.30 from the date 
 
            each payment came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing in 
 
            file number 855454.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs 
 
            pursuant to Division of Industrial Services Rule 343-4.33 in 
 
            both cases.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert C. Andres
 
            Attorney at Law
 
            East 4th & Sycamore
 
            P.O. Box 2634
 
            Waterloo, Iowa  50704-2634
 
            
 
            Mr. James L. Wagner
 
            Ms. Janet C. Pederson
 
            Attorneys at Law
 
            3604 Kimball Avenue
 
            Waterloo, Iowa  50702
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1802; 5-1803; 5-4000.2
 
                           Filed November 9, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            HOWARD RUSSELL,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File Nos. 838566
 
            CONSUMER NEWS PUBLICATIONS    :                   855454
 
            INC.,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            NORTHWESTERN NATIONAL    :
 
            INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1802; 5-1803; 5-4000.2
 
            Nonprecedential opinion awarding healing period, permanent 
 
            partial disability and denying 86.13 penalty.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA WOTEN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 855466
 
            EVERCO INDUSTRIES,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Linda Woten, against her employer, EVERCO 
 
            Industries, and its insurance carrier, Aetna Insurance, 
 
            defendants.  The case was heard on November 15, 1989, in Des 
 
            Moines, Iowa at the office of the industrial commissioner.  
 
            The record consists of the testimony of claimant, as well as 
 
            the testimonies of Jan Bickley, David Maughler, Dennis 
 
            Sturms and JoAnn Spencer.  Additionally, the record consists 
 
            of joint exhibits 1-15.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the alleged injury and the 
 
            disability; 2) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial 
 
            disability benefits; and, 3) whether claimant is entitled to 
 
            medical benefits under section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was 32 years old at the time of the hearing.  
 
            She graduated from high school in 1975.  She obtained a 
 
            liberal studies degree from the University of Iowa in August 
 
            of 1985.  However, claimant had never secured a position 
 
            which required a college degree.
 
            
 
                 She commenced her employment with defendant-employer in 
 
            June of 1987.  She was hired as an assembly-line worker 
 
            where her duties included assembling fin and channels.  The 
 
            parts made up heater cores.  She was required to place the 
 
            parts into a three foot box and send the box on rollers down 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the assembly line.  The position required bending, twisting 
 
            and lifting  up to 50 pounds.  Claimant worked through 
 
            October 6, 1987.
 
            
 
                 On September 12, 1987, claimant was working the 11:00 
 
            p.m. to 7:00 a.m. shift.  At approximately 7:05 a.m., 
 
            claimant's vehicle was hit by a 1971 Ford truck which was 
 
            owned by defendant-employer and which was driven by a 
 
            co-employee.  Claimant reported the incident to the third 
 
            shift supervisor and the county sheriff's office was 
 
            notified.
 
            
 
                 Following the incident, claimant testified she was 
 
            stiff and sore especially in the neck and back area.  
 
            However, she continued to work until October 6, 1987, when 
 
            claimant was laid off for lack of work.  Several co-workers 
 
            heard claimant voice complaints concerning her neck.
 
            
 
                 Claimant did not contact a medical practitioner until 
 
            October 1, 1987.  She was referred to Donald D. Berg, M.D., 
 
            by her family physician, D. Dale Emerson, M.D.
 
            
 
                 Dr. Berg saw claimant on October 8, 1987 and on 
 
            November 9, 1987.  He found no objective findings of any 
 
            permanent impairment; he noted claimant had a full range of 
 
            motion of her neck and back and that her chief complaints 
 
            were persistent headaches.
 
            
 
                 Dr. Berg referred claimant to Marc E. Hines, M.D., a 
 
            board certified neurologist.  Dr. Hines first examined 
 
            claimant on November 5, 1987.  He diagnosed claimant as 
 
            having "posttraumatic headaches that were of a muscle 
 
            contraction-tension-type and also of a migrainous-type,..."
 
            
 
                 Dr. Hines continued to treat claimant for neck pain, 
 
            headaches, back and left leg problems, as well as problems 
 
            with her upper extremities.  Dr. Hines opined claimant had 
 
            the following problems:
 
            
 
                 [T]rigger point muscle spasm, tenderness, she did 
 
                 have disk bulges in her neck, whether we want to 
 
                 use the MRI as the evidence or use the myelogram 
 
                 as the evidence, it's present in both tests.
 
            
 
                 In addition to that, on the plain x-rays she does 
 
                 have some C5, 6 foraminal disk space narrowing 
 
                 that is often the culprit, so to speak, in an 
 
                 injury of whiplash in a car, that is an area where 
 
                 the nerve can be entrapped and stretched across 
 
                 the narrowing.  So there is a good deal of 
 
                 evidence of that type, and then on the EMG 
 
                 examination there are some findings which are 
 
                 largely interpreted as being related to median and 
 
                 ulnar neuropathies.
 
            
 
            (Exhibit 11, p. 20, line 15 - page 21, line 4)
 
            
 
                 Dr. Hines opined to a reasonable degree of medical 
 
            certainty that claimant's condition was causally connected 
 
            to her injury of September 12, 1987.  Specifically, Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Hines stated in his deposition:
 
            
 
                 [T]hat she suffered a cervical strain with 
 
                 cervical stretch injury to the nerves and 
 
                 subsequent development of posttraumatic headaches 
 
                 and posttraumatic neck pain with cervical muscle 
 
                 spasm and trigger point dysfunction....
 
            
 
            (Ex. 11, p. 21, ll. 17-21)
 
            
 
                 Dr. Hines opined claimant had a 10 percent functional 
 
            impairment due to her headaches.
 
            
 
                 Because claimant did not demonstrate a vast 
 
            improvement, the physician referred her to the University of 
 
            Iowa for a second opinion.  There claimant was examined by 
 
            the Department of Orthopaedic Surgery.  The spine team made 
 
            the following recommendations:
 
            
 
                 X-rays findings:  Your CT scan and MRI were 
 
                 reviewed and showed a very small C5-6 disc with no 
 
                 nerve compression.  Plain films taken a number of 
 
                 months ago did not demonstrate any marked 
 
                 instability or fracture.
 
            
 
                 Assessment:  1) Headaches; 2) neck muscle 
 
                 tightness; 3) possible tennis elbow on the left.
 
            
 
                 Plan:  Dr. Glaser discussed at length your 
 
                 examination.  He felt that your headaches were not 
 
                 likely related to the small C5-6 disc and reported 
 
                 that there was no specific muscle or reflex 
 
                 findings consistent with nerve compromise at the 
 
                 present time.  You were referred to the Pain 
 
                 Clinic for evaluation of your headaches, neck 
 
                 stiffness and pain.  NCVs/EMGs obtained on the 
 
                 date of your clinic visit were normal studies in 
 
                 both upper extremities.
 
            
 
                 Having reviewed your medical records, x-rays and 
 
                 after thorough discussion of your findings with 
 
                 the spine team, we have the following 
 
                 recommendations.
 
            
 
                 1)  Your functional assessment today shows that 
 
                 your            maximum lifting limits at this 
 
                 time would be squat       lift - 61 lbs., partial 
 
                 squat lift - 60 lbs. and            arm lift - 41 
 
                 lbs.  Repetitive lifting, meaning        more than 
 
                 four times per hour should be limited to      half 
 
                 of the above amounts.  Our therapist felt that     
 
                 you put forth a full effort in this evaluation and      
 
                 were not self-limiting.
 
            
 
                 2)  Your cardiovascular exercise test showed that 
 
                 you        reached your peak work load at 8.3 
 
                 METS.  You had a     normal cardiovascular 
 
                 response to exercise.  Your         functional 
 
                 aerobic impairment was 5.8% or within         
 
                 normal limits.  Based on today's testing, your          
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 average energy cost for employment should be 3.4        
 
                 METS.  This is suitable for sedentary-light to          
 
                 medium-heavy work tasks.  Our therapist felt that            
 
                 you would significantly benefit from a regular          
 
                 conditioning program to improve your functional         
 
                 strength and endurance.  You were instructed in         
 
                 this exercise program.  She also felt that you          
 
                 would improve your overall health if you would          
 
                 discontinue smoking.
 
            
 
                 3)  We feel that you did sustain a work-related 
 
                 injury     on September 12, 1987.  Your healing 
 
                 period has           ended prior to having first 
 
                 seen us and we feel            that you have a 
 
                 permanent partial impairment of 3%       of your 
 
                 body as a whole for your neck injury.         
 
                 Please be advised that we are rating impairment 
 
                 and   not disability.  The amount of industrial              
 
                 disability is affected by many other factors,           
 
                 including age, education, motivation and work           
 
                 experience, etc.
 
            
 
                 4)  We feel that it is important that you limit 
 
                 the        amount of medication intake.  We feel 
 
                 that your            current medication intake is 
 
                 detrimental to your            overall 
 
                 improvement.
 
            
 
                 5)  We recommend that you continue to work with 
 
                 Jan        Bickley, your local rehab specialist, 
 
                 who will be          working with you both to 
 
                 coordinate your medical        care and also to 
 
                 assist you with job placement.           She will 
 
                 be setting up an appointment with you with    Dr. 
 
                 G. Keeto for a further psych evaluation, as we     
 
                 were concerned about both your activity level,          
 
                 which sometimes is quite excessive, as well as the      
 
                 amount of nervous energy and inability to relax         
 
                 that you described.
 
            
 
                 Claimant was also examined by Viney Kumar, M.D., a 
 
            physician with the Pain Clinic at the University of Iowa.  
 
            Dr. Kumar opined claimant suffered from myofascial pain.  He 
 
            reported that myofascial pain was quite common following a 
 
            motor vehicle accident.
 
            
 
                 Robert Hayne, M.D., was retained by defendants to 
 
            perform an examination and evaluation of claimant.  The exam 
 
            was performed on February 22, 1988.  He found only a minimal 
 
            deviation from a normal MRI and a myelogram.  Dr. Hayne did 
 
            not find any physical impairment.  He expressly disagreed 
 
            with Dr. Hines' rating of a 10 percent functional 
 
            impairment.
 
            
 
                 Following her medical treatment, claimant was seen by 
 
            several vocational rehabilitation counselors.  Initially, 
 
            she met with Paul Wayne Halferty, a vocational 
 
            rehabilitation counselor with the state of Iowa.  Claimant 
 
            was in contact with Mr. Halferty from April 24, 1989 through 
 
            November 9, 1989.  Mr. Halferty believed claimant was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            motivated to seek employment.  He determined claimant could 
 
            perform the following positions:  apartment manager, pilot 
 
            car driver, circuit board assembler, semi-skilled light 
 
            assembly, telemarketing, delivery and sales route 
 
            employment, receptionist, some waitress jobs, cashier and 
 
            clerk.
 
            
 
                 Jan Hardcopf-Bickley, medical vocational rehabilitation 
 
            specialist who was hired by defendants, determined claimant 
 
            could perform approximately 50 positions if James Weinstein, 
 
            M.D., evaluated the positions for the restrictions and body 
 
            mechanics involved.
 
            
 
                 At her hearing, claimant testified she had never held a 
 
            permanent full time position, but that she had applied for a 
 
            number of positions.  Most of the positions paid 
 
            considerably less than what the position at EVERCO paid.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            13, 1987, is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden, 
 
            388 N.W.2d 181 (Iowa 1980).
 
            
 
                 In the case at hand, claimant has proven by a 
 
            preponderance that she has sustained an injury which is 
 
            causally connected to her work injury of September 13, 1987.  
 
            Prior to September 13, 1987, claimant had experienced no 
 
            problems with her neck, back or arms.  It was only after her 
 
            work injury that the problems occurred.  Dr. Hines, the 
 
            treating neurologist, causally related claimant's condition 
 
            to her motor vehicle accident on September 13, 1987.  Dr. 
 
            Kumar testified that myofascial pain, such as that found in 
 
            claimant's case, was quite common after an automobile 
 
            accident.  Therefore, it is the determination of the 
 
            undersigned that claimant has proven the requisite causal 
 
            connection.
 
            
 
                 The next issue to address is whether claimant has any 
 
            permanent disability.  Claimant contends she has an 
 
            industrial disability.  Defendants deny claimant has 
 
            sustained any permanency.  Four physicians have provided 
 
            functional impairment ratings.  They vary from 0 percent to 
 
            10 percent, with the treating physician assessing the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            highest impairment rating.  There is a slight bulging of a 
 
            disk in the cervical area.  Additionally, claimant is unable 
 
            to sit with her head bent and she is unable to perform 
 
            repetitive type work involving the neck and arms.  Her 
 
            restrictions are permanent.  The undersigned determines 
 
            claimant has a permanent functional impairment of five 
 
            percent.
 
            
 
                 Claimant has only a minimal loss of earning capacity, 
 
            however.  She has a bachelor's of arts degree in liberal 
 
            studies with areas of concentration in social sciences, 
 
            humanities and business.  Claimant is bright and articulate.  
 
            Many positions available only require a degree of some type.  
 
            Claimant has never held a permanent full time position.  She 
 
            has always been underemployed or unemployed.  Positions 
 
            which she has sought have always been minimal skill type 
 
            jobs.  Claimant has not been motivated to seek positions 
 
            commensurate with her education and intellectual abilities.  
 
            Moreover, claimant does not appear especially motivated to 
 
            seek full time employment of any type.  She desires to 
 
            return to college and to obtain a masters degree.  However, 
 
            employment opportunities in women's studies or Indian 
 
            studies do not appear optimal, given the current economic 
 
            conditions.  Claimant has only held positions on the low end 
 
            of the pay scale.  The highest paying position which 
 
            claimant has ever held has been the EVERCO temporary 
 
            position.  Claimant has not had much in the way of a loss of 
 
            actual earnings since her employment history has been 
 
            sporadic at best.  Since claimant has been restricted from 
 
            engaging in repetitive-type activities, her earning capacity 
 
            has been slightly reduced.  Therefore, in light of the 
 
            foregoing, it is the determination of the undersigned that 
 
            claimant has a 10 percent permanent partial disability.
 
            
 
                 Claimant is also entitled to healing period benefits.  
 
            The time off work for which claimant is entitled to healing 
 
            period benefits is from October 7, 1987 through August 23, 
 
            1988.  This period consists of 46 weeks.
 
            
 
                 Claimant is also entitled to medical benefits pursuant 
 
            to section 85.27.  The exhibits submitted are for charges 
 
            causally connected to claimant's work injury of September 
 
            13, 1987.  Defendants are liable for all of the submitted 
 
            medical charges except for reimbursable travel expenses to 
 
            Wapello County Department of General Assistance.  Claimant 
 
            has not proven by a preponderance of the evidence that the 
 
            travel expenses incurred are allowable under section 85.27, 
 
            given the $.21 per mile rate.  Therefore, defendants are 
 
            liable for:
 
            
 
                    Jefferson County Hospital           $     8.00
 
                 CT Imaging                                 430.00
 
                 Mid-Central Medical, Inc.                  784.00
 
                 Ottumwa Clinic Pharmacy                45.04
 
                 Donald D. Berg, M.D.                       180.00
 
                 Ottumwa Neurological Assoc. P.C.    5,993.50
 
                 Ottumwa Reg Health Center                3,083.46
 
                 University of Iowa Hospitals          530.00
 
                 Iowa City Pt                        1,730.00
 
                                                   $11,216.00
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                    Reimbursable medical expenses to:    $5,803.66
 
                 Wapello County Dept. of Gen. Assistance
 
                 P O Box 554, Ottumwa  IA  52501
 
            
 
                             
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay fifty (50) weeks of permanent 
 
            partial disability benefits at the stipulated rate of two 
 
            hundred twenty-eight and 23/l00 dollars ($228.23) per week 
 
            commencing on August 24, 1988.
 
            
 
                 Defendants are to pay forty-six (46) weeks of healing 
 
            period benefits from October 7, 1987 through August 23, 
 
            1988, at the stipulated rate of two hundred twenty-eight and 
 
            23/l00 dollars ($228.23) per week.
 
            
 
                 Defendants shall pay eleven thousand two hundred 
 
            sixteen and no/l00 dollars ($11,216.00) in medical expenses 
 
            including reimbursing Wapello County General Assistance in 
 
            the sum of five thousand eight hundred three and 66/l00 
 
            dollars ($5,803.66).
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Dennis W. Emanuel
 
            Attorney at Law
 
            112 N Court
 
            P O Box 601
 
            Ottumwa  IA  52501
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor Equitable Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed November 21, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA WOTEN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 855466
 
            EVERCO INDUSTRIES,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1803
 
            Claimant was determined to have a 10 percent permanent 
 
            partial disability after her vehicle was struck in the 
 
            employer's parking lot.  Claimant sustained permanent 
 
            restrictions.  However, she only sustained a minimal loss of 
 
            earning capacity since she had a bachelors' of arts degree 
 
            in liberal studies, and since she had always been 
 
            underemployed or unemployed.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DARLA M. LAMP, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 855487
 
            M.A. FORD MANUFACTURING CO.,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
             The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 13, 1990 is affirmed and is adopted as the final 
 
            agency action in this case except where inconsistent with 
 
            the following language. 
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            When all the relevant factors given above are considered, 
 
            the claimant has met her burden of proving an industrial 
 
            disability of 35 percent.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Defendants shall pay all costs of this case, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Burton H. Fagan
 
            Attorney at Law
 
            2535 Tech Dr., Ste 206
 
            Bettendorf, Iowa 52722
 
            
 
            Mr. Thomas J. Shields
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa 52801