BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL F. CAUDILL,
 
         
 
              Claimant,                               File No. 865350
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         UNIVERSITY OF IOWA,                          D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 22 1990
 
         STATE OF IOWA,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Michael F. 
 
         Caudill, claimant, against the University of Iowa, an agency of 
 
         the State of Iowa, employer, defendant, for workers' compensation 
 
         benefits as a result of an alleged injury on January 20, 1988.  
 
         On September 5, 1989, a hearing was held on claimant's petition 
 
         and the matter was considered fully submitted at the close of 
 
         this hearing.
 
              
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
              
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
              
 
              1.  An employee-employer relationship existed between 
 
         claimant and the University of Iowa at the time of the alleged 
 
         injury.
 
              
 
              2.  If the University is found liable for the alleged 
 
         injury, the extent of claimant's entitlement to temporary total 
 
         disability or healing period benefits consists of the time period 
 
         from January 22, 1988 through May 16, 1988.
 
              
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              4.  If permanent partial disability benefits are awarded, 
 
         they shall begin as of May 17, 1988.
 
              
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $191.41.
 
              
 
              6.  With reference to the medical bills submitted by 
 
         claimant at hearing, the charges were fair and reasonable and the 
 
         provider would testify that the treatment was reasonable and 
 
         necessary treatment.  The causal connection of these expenses to 
 
         the back condition, which is the subject of this litigation, is 
 
         stipulated but the causal connection of his condition to a work 
 
         injury remained at issue.
 
              
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
              
 
                I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
              
 
               II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
              
 
              III.  The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
              
 
               IV.  The extent of claimant's entitlement to medical 
 
         benefits.
 
              
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
              
 
              Claimant testified that he worked for the University from 
 
         1977 until January 22, 1988, as a nursing assistant and 
 
         transportation aide.  For the last seven years before his 
 
         termination from employment, claimant worked in the psychiatric 
 
         department.  When not transporting patients within the hospital 
 
         complex, claimant assisted in the control of unruly patients in 
 
         the psychiatric department and at other times was generally 
 
         involved in assisting in the nursing care of patients.
 
              
 
              Claimant asserts that he injured his low back after lifting 
 
         a wheelchair containing a patient onto an elevator which had 
 
         stopped six to eight inches above the floor level.  Claimant 
 
         described that something "gave in his low back" and severe 
 
         burning pain ensued.  Claimant said he waited until the next 
 
         morning to report the incident to his supervisor and sought 
 
         treatment on January 22, 1988, from the University Hospital 
 
         Family Practice Clinic.  Upon a diagnosis of back strain, his 
 
         physicians prescribed bed rest, moist heat and medication.  
 
         Claimant's treatment remained conservative for a period of time 
 
         and claimant felt dissatisfied with this care.  He then began 
 
         treating with William Pontarelli, M.D., an orthopedic surgeon at 
 
         the Steindler Orthopedic Clinic. Dr. Pontarelli had treated 
 
         claimant previously for a low back injury.  Physicians at the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         University were aware of this change in care.  After one week of 
 
         bed rest, Dr. Pontarelli diagnosed that claimant had suffered a 
 
         recurrent herniated disc at the L4-5 level of his spine.  
 
         Claimant received surgery called a laminectomy and diskectomy on 
 
         February 15, 1988.  Claimant was not released from Dr. 
 
         Pontarelli's care until May 17, 1988.  According to Dr. 
 
         Pontarelli, claimant has suffered a 20 percent permanent partial 
 
         impairment to the body as a whole from the January 20, 1988 
 
         injury and has permanently restricted claimant from lifting over 
 
         20 pounds.  With this restriction, claimant has not been allowed 
 
         by the University to return to his job or any other job at the 
 
         University Hospital complex.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant is a college graduate with a BA in sociology. 
 
         Claimant was a part-time graduate student in the business school 
 
         at the time of the injury.  Claimant testified that his graduate 
 
         work in a business was only an "experimental" course of study. 
 
         After the injury, claimant began graduate work in August 1988 in 
 
         the field of social work and hopes to receive a master's degree 
 
         in social work in 1991.  Claimant stated that he applied for 
 
         several jobs, even clerical, at the University, and has not been 
 
         offered reemployment.  Claimant stated that he is presently 
 
         prohibited from any sort of nursing job due to his lifting 
 
         restrictions. Claimant worked for a period of time with Goodwill 
 
         Industries for approximately six hours a day for a few weeks but 
 
         had to quit due to schedule conflicts.  Claimant now works 32 
 
         hours a week for "The Threshhold Program" as a job coach.  
 
         Claimant stated that he is able to continue his education with 
 
         the financial help of his employed spouse.
 
         
 
              Claimant admits to a long history of back problems beginning 
 
         in September 1983 when he injured his back while playing golf.  
 
         At that time., Dr. Pontarelli performed back surgery at the same 
 
         L4-5 spinal level.  Claimant had told Dr. Pontarelli in September 
 
         1983, that he had suffered back problems for five or six years 
 
         before that time.  Claimant states that he did have intermittent 
 
         problems since 1983 but was always able to return to work after a 
 
         brief period of bed rest.  Only a few days before the alleged 
 
         work injury, claimant testified that while he was on vacation he 
 
         tripped after exiting an airplane injuring his low back.  
 
         Claimant sought treatment for this injury.  Medical records state 
 
         that he complained of buttocks pain radiating into his leg.  
 
         Claimant said that following a two day period of bed rest, he was 
 
         able to fully return to work.  He said that this incident was 
 
         similar to the prior injuries in that it only took a few days of 
 
         bed rest to recover.  Claimant worked for only three days before 
 
         the January 20, 1988 injury.  Claimant emphasized that unlike 
 
         before, after this work injury, he was not able to recover after 
 
         bed rest. Claimant admits to a use of a lot of sick leave over 
 
         the years prior to January 20, 1988, some of which he attributed 
 
         to back problems.  Claimant's supervisor testified that claimant 
 
         is still on medical leave of absence from the University and 
 
         could be returned to work if there is a lifting of the 20 pound 
 
         restriction.
 
         
 
              Claimant was evaluated by the University's Spinal Diagnostic 
 
         and Treatment Center in December 1988.  Physicians at the Center 
 
         agreed with Dr. Pontarelli's disability rating but stated that 
 
         they were unable to apportion this rating between the 1983 and 
 
         1988 injuries.  They note, however, claimant's history that he 
 
         had few complaints prior to the 1988 work injury.  Vocational 
 
         counselors at the Center made no recommendations and apparently 
 
         agreed with claimant's educational plans.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the injury and 
 
         disability.  From his demeanor while testifying, claimant was 
 
         found credible.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979) ; Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              The question of whether or not the injury occurred is 
 
         largely a matter of claimant's credibility.  Given the finding of 
 
         credibility, a work injury will be found to have occurred whether 
 
         or not this was an original injury or only an aggravation of a 
 
         preexisting condition.
 
              
 
               II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, 
 
         Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal 
 
         Co., 288 N.W.2d 181 (Iowa 1980).
 
              
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
              
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              In the case sub judice, claimant contends that he has 
 
         suffered disability as a result of the work injury due to 
 
         permanent impairment to the body as a whole.  First, the greater 
 
         weight of credible evidence establishes that claimant suffers a 
 
         permanent impairment as a result of the injury given the treating 
 
         physicians' opinions.  However, it is quite clear that claimant's 
 
         condition was very vulnerable prior to the injury when only 
 
         stumbling caused a two day absence from work.  However, the work 
 
         injury on January 20, 1988, is an injury which precipitated the 
 
         second laminectomy surgery and claimant had no work restrictions 
 
         prior to the work injury herein.  Claimant does not have to show 
 
         that his disability was the sole cause of the work injury, only 
 
         that the work injury was a substantial factor among others in 
 
         precipitating the surgery and subsequent disability.  Varied 
 
         Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
              
 
              Apportionment of a disability between a preexisting 
 
         condition and an injury is proper only when there is some 
 
         ascertainable disability which existed independently before the 
 
         injury occurred. Varied Enterprises, 353 N.W.2d 407.  After 
 
         claimant establishes a causal connection between the claimed 
 
         disability and the work injury does the claimant have the burden 
 
         to establish a lack of a preexisting disability or does the 
 
         burden of persuasion shift to the defendant to establish such a 
 
         preexisting disability for purposes of apportionment?  There is 
 
         no agency precedent on this precise point of law.  Joined from 
 
         the general law of torts, the undersigned believes that the 
 
         correct law is that claimant has no such additional burden after 
 
         establishing a prima facie case for disability.  The plaintiff in 
 
         a personal injury case is not normally charged with the burden of 
 
         proof as to the actual apportionment of damages.  Any burden of 
 
         that nature must be assumed by the defendant, since the defendant 
 
         is the party standing to gain by litigating the apportionment 
 
         issue.  Two damages in tort actions section 15.34(1)(a); Wonder 
 
         Life Company v. Liddy, 207 N.W.2d 27 (Iowa 1973).  If no 
 
         apportionment can be made, the defendant is responsible for the 
 
         entire damage.  Becker v. D & E Distributing Co., 247 N.W.2d 727, 
 
         731 (1976).  In the case sub judice, the state has not offered 
 
         sufficient evidence to establish an apportionment between 
 
         claimant's injury on January 22, 1988 and his prior condition.
 
              
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant's treating physician has restricted claimant's work 
 
         activities by prohibiting lifting over 20 pounds.  This 
 
         restriction prevents him from returning to his former work as a 
 
         nursing assistant or any other work requiring heavy lifting.  
 
         Also, the loss of his job has caused claimant a loss of earnings 
 
         apart from his healing period as a result of his disability.  
 
         However, he has become reemployed in work which allows for the 
 
         completion of his graduate work.  Completion of such work will 
 
         probably greatly increase his earning capacity.  However, again 
 
         we are not in a position to assess the impact of the completion 
 
         of such graduate studies until they are actually completed.
 
              
 
              Although claimant is not able to return as a nurse's aide, 
 
         such work is not the type of work for which he was best suited at 
 
         the time of injury given his age and education.  Claimant, after 
 
         all, was a college graduate at the time of injury and was 
 
         essentially underemployed.  Little retraining is necessary for 
 
         him in order to find replacement employment at or near the wages 
 
         of a nurse's aide.  Steward v. Crouse Cartage Co., Appeal 
 
         Decision filed February 20, 1987.
 
              
 
              Claimant is relatively young.  His loss of future earnings 
 
         from employment due to disability is not as severe as would be 
 
         the case for an older individual.
 
              
 
              It is also noted that defendants have not attempted to place 
 
         claimant into suitable replacement work as a result of his 
 
         disability.
 
              
 
              After examination of all factors, it is found as a matter of 
 
         fact that claimant has suffered a mild loss of earning capacity 
 
         in the amount of 10 percent.  Based upon such a finding, claimant 
 
         is entitled as a matter of law to 50 weeks of permanent partial 
 
         disability benefits under Iowa Code section 85.34(2)(u) which is 
 
         10 percent of 500 weeks, the maximum allowable number of weeks 
 
         for an injury to the body as a whole in that subsection.
 
              
 
              The parties have stipulated as to the extent of claimant's 
 
         entitlement to healing period benefits.
 
              
 
               IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid those expenses. 
 
         Otherwise, claimant is entitled to only an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. 
 
         State, 402 N.W.2d 463 (Iowa 1988).  Given the finding that the 
 
         injury is work related, the expenses requested will be awarded.
 
              
 
              Defendants claim that the treatment by Dr. Pontarelli was 
 
         not authorized and claimant was not entitled to reimbursement for 
 
         the expense of such treatment under Iowa Code section 86.27 which 
 
         provides employers with the right to choose the care.  However, 
 
         section 85.27 applies only to injuries compensable under Chapters 
 
         85 and 85A of the Iowa Code and obligates the employers to 
 
         furnish reasonable medical care.  This agency has held that it is 
 
         inconsistent to deny liability and the obligation to furnish care 
 
         on one hand and at the same time claim a right to choose the 
 
         care. Kindhart v. Fort Des Moines Hotel, I Iowa Industrial 
 
         Commissioner Decisions 3, 611 (Appeal Decision 1985); Barnhart v. 
 
         MAQ Incorporated, I Iowa Industrial Commissioner Report 16 
 
         (Appeal Decision 1981).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Defendant, in this case, has throughout these proceedings 
 
         denied that claimant suffered a work injury.  For that reason and 
 
         absent a future change in defendant's legal position on the issue 
 
         of liability, defendant will not have the right to choose the 
 
         medical care for claimant's injuries until a decision of this 
 
         agency establishing the compensability of such injury becomes 
 
         final.  Therefore, the expenses of Dr. Pontarelli are 
 
         reimbursable.
 
              
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully.
 
              
 
              2.  On January 20, 1988, claimant suffered an injury to the 
 
         low back which arose out of and in the course of his employment 
 
         with the University of Iowa.  This injury was diagnosed as a 
 
         reoccurrence of a herniated disc at L4-5.
 
              
 
              3.  The work injury of January 20, 1988, is a cause of a 20 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no lifting over 20 pounds.  Claimant had a history 
 
         of low back pain for several years.  In 1983, claimant herniated 
 
         the same disc and received surgery.  Claimant has had 
 
         intermittent back pain since that time.  Claimant had no work 
 
         restrictions before January 20, 1988, however, claimant injured 
 
         himself by stumbling and was bedridden for two days in an injury 
 
         only a few days before the January 20, 1988 injury.  Claimant had 
 
         returned to work only three days before the work injury.  
 
         Defendant failed to carry its burden to apportion the industrial 
 
         disability between the work injury and claimant's prior condition 
 
         with appropriate medical opinion.
 
              
 
              4.  The work injury of January 20, 1988 and the resulting 
 
         work restrictions are a cause of a 10 percent loss of earning 
 
         capacity.  Claimant is 35 years of age and holds a BA degree in 
 
         sociology. Claimant has been working as a nurse's aide since 
 
         1977.  Claimant can no longer work as a nurse's aide due to work 
 
         restrictions.  Claimant was working well below his earning 
 
         potential as a nurse's aide at the time of injury.  Claimant is 
 
         currently seeking a graduate degree in psychiatric social work.  
 
         Completion of this educational program may increase his earning 
 
         capacity if it is successfully completed.  The success of this 
 
         program is unknown at this time.  Unfortunately, the State of 
 
         Iowa has offered no replacement work to claimant during the 
 
         completion of his educational program.
 
              
 
              5.  The medical expenses requested in exhibit 1 are fair and 
 
         reasonable and were incurred by claimant for reasonable and 
 
         necessary treatment of the low back condition as a result of the 
 
         work injury of January 20, 1988.  Defendant has denied liability 
 
         for the injury.  Defendant is allowed to take a credit under Iowa 
 
         Code section 85.38(2) for the payment of the medical expenses by 
 
         the group carrier.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Claimant has established under law entitlement to 50 weeks 
 
         of permanent partial disability benefits and to payment of the 
 
         medical expenses requested.
 
              
 
                                      ORDER
 
                                        
 
              1.  Defendant shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         ninety-one and 41/100 ($191.41) per week from May 17, 1988.
 
              
 
              2.  Defendant shall pay to claimant healing period benefits 
 
         as stipulated in the prehearing report.
 
              
 
              3.  Defendant shall pay the medical expenses listed in 
 
         exhibit 1.  Claimant shall be reimbursed for any of these 
 
         expenses paid by him.  Otherwise, defendant shall pay the 
 
         provider directly along with any lawful late payment penalties 
 
         imposed upon the account by the provider.  Defendants shall 
 
         receive credit for previous payment of these benefits under a 
 
         nonconventional group insurance plan pursuant to Iowa Code 
 
         section 85.38(2).
 
              
 
              4.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
              
 
              5.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
              
 
              6.  Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              7.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              
 
              Signed and filed this 22nd day of February, 1990.
 
              
 
              
 
              
 
              
 
              
 
              
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James H. Martinek
 
         Attorney at Law
 
         510 Iowa State Bank Bldg
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         102 S Clinton St
 
         Iowa City, IA  52240
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, IA  50319
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1806
 
                                            Filed February 22, 1990
 
                                            LARRY P. WALSHIRE
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL F. CAUDILL,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 865350
 
         UNIVERSITY OF IOWA,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1806
 
         
 
              Held claimant has no burden to establish the lack of a 
 
         preexisting disability in apportionment issues after establishing 
 
         a prima facie case that the work injury was one of the 
 
         precipitating causative factors in the disability among others.  
 
         It was reasoned that the burden of persuasion shifts to the 
 
         defendant to establish such a preexisting disability for the 
 
         purposes of apportionment since the defendant is the party 
 
         standing to gain by litigating the apportionment issue.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES E. HARVEY,            :
 
                                          :
 
                 Claimant,                :      File No. 865355
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            CITY OF DES MOINES, IOWA,     :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUE
 
            
 
                 The issue on appeal is:  Whether claimant has proved 
 
            that claimant sustained an injury (heart attack) on June 16, 
 
            1986 that arose out of and in the course of his employment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant, 61 years of age at hearing, began employment 
 
            with the City of Des Moines in March 1972.  When he retired 
 
            on April 1, 1989, he was coordinator for Southeast 
 
            Pioneer-Columbus Community and Housing Services.  He had 
 
            previously had different job titles, but roughly similar 
 
            duties.
 
            
 
                 Claimant's duties at first included acting as advisor 
 
            to a neighborhood board, writing critiques for projects and 
 
            working directly for the neighborhood board.  He worked some 
 
            50 or 60 hours per week.  Thereafter, claimant added 
 
            substantial job duties, particularly after 1975.  Those 
 
            duties included starting a garden project in 1978, starting 
 
            a fan distribution project, starting a Christmas basket 
 
            distribution project, setting up flu clinics for the 
 
            elderly, work on distribution of surplus foods, ordering 
 
            materials for city-wide weatherization projects, initiating 
 
            neighborhood watch programs, arranging political forums and 
 
            speakers, acting as a substitute coordinator for other site 
 
            offices, and similar duties.
 
            
 
                 During the year before claimant's first heart attack on 
 
            June 16, 1986, his job duties increased substantially.  He 
 
            took on the garden project, an energy assistance program, 
 
            continued working "double duty" on the surplus commodities 
 
            program for other areas, and had taken over a second area 
 
            office.  Claimant indicated that he did not believe that he 
 
            suffered from stress or personal problems unrelated to work 
 
            prior to 1986.
 
            
 
                 However, he was awarded a 10 percent service-connected 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability following a tour of duty in the United States 
 
            Navy in 1946 and 1947.  He was told at the time that the 
 
            disability related to an ulcer problem, but later found that 
 
            the award was based on his history of anxiety.
 
            
 
                 Claimant had no prior symptoms before his coronary 
 
            event on June 16, 1986.  This occurred after he had been 
 
            vacationing for approximately six days.  Claimant first 
 
            stumbled and felt pain in the left shoulder.  About one day 
 
            later, he woke up at night suffering from indigestion.  
 
            Claimant later had something of a hallucinatory experience 
 
            at a swimming pool.  Afterwards, he drove back home with his 
 
            wife, but is unable to recall that trip.  Upon returning to 
 
            Iowa, claimant discovered that his home had been burglarized 
 
            while he was on vacation.  He contacted the police and his 
 
            physician, only then learning that he had suffered a heart 
 
            attack approximately three days before.
 
            
 
                 Claimant described a second incident in October 1986.  
 
            Claimant suffered a cardiac arrest while (on his own time) 
 
            teaching or instructing an acquaintance in how to hang a 
 
            door.  Claimant had walked over four miles prior to this 
 
            incident.  Claimant gave dramatic testimony of an "out of 
 
            body" experience at the time of his cardiac arrest.  He was 
 
            promptly taken to the hospital by an emergency vehicle and 
 
            was fortunately able to survive the experience.
 
            
 
                 Claimant also testified to numerous problems and 
 
            incapacity resulting from these coronary incidents.  He has 
 
            very little recollection of the years 1986 and 1987, even 
 
            including the death of his mother in March 1986.  He finds 
 
            himself "muddle-headed," has sustained a memory loss, is 
 
            emotional, staggers and stumbles, and has lost strength.  He 
 
            suffers shaking, mild angina, spells of nervousness, does 
 
            not sleep well and suffers from tachycardia.  The presiding 
 
            deputy observed at hearing that claimant gave the impression 
 
            of feebleness, shook, was emotional, and appeared to be 
 
            rather slow moving.
 
            
 
                 Claimant stressed that he believes himself to now be 
 
            totally disabled and believes that this situation has come 
 
            about because overwork and stress caused his heart problems.
 
            
 
                 Richard Wright testified to being director of the 
 
            Department of Housing and Community Services for the City of 
 
            Des Moines.  He has known claimant for 15-20 years and was 
 
            claimant's supervisor after 1975.
 
            
 
                 Mr. Wright agreed that it was fair to say that 
 
            claimant's job duties increased substantially after 1975 and 
 
            agreed that public service work involves stress.  He has no 
 
            doubt that claimant put in extra hours and that claimant was 
 
            a good and hard worker, both before and after June 1986.  
 
            Claimant continued to carry out his assignments until his 
 
            retirement in 1989.
 
            
 
                 Wright agreed that some duties have increased and that 
 
            the number of people served by claimant's office has 
 
            increased, but did not believe that the hours claimant 
 
            devoted to the job increased.  He was aware that claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            received late telephone calls from citizens and believed 
 
            that claimant truly loved his job.  He noted that other 
 
            coordinators also worked on various projects and reports and 
 
            stated that there is a lack of uniformity in the job 
 
            requirements of coordinators in different service areas.
 
            
 
                 Rosanna Harvey testified to being claimant's spouse for 
 
            some 17 years.  She agreed that claimant did not suffer 
 
            known heart problems prior to the infarction of June 1986.  
 
            She believed that incident caused the most physical damage, 
 
            while the cardiac arrest in October caused more damage to 
 
            claimant's memory.
 
            
 
                 Ms. Harvey indicated that she had helped work with 
 
            claimant in the summer and gradually saw an increase in his 
 
            duties.  She noted that claimant began to complain of his 
 
            increased duties some 6-12 months prior to the first 
 
            coronary incident.  She was of the view that claimant had no 
 
            unusual nonwork-related stress in his life prior to June 
 
            1986.
 
            
 
                 Liberato A. Iannone, M.D., testified by deposition on 
 
            June 7, 1989.  Dr. Iannone is a board-certified specialist 
 
            in cardiology and has been treating claimant since the 
 
            initial myocardial infarction.  Claimant was admitted to 
 
            Mercy Hospital Medical Center with a prior history of high 
 
            blood pressure, family history of heart disease, and 
 
            presenting with a heart attack diagnosed by family physician 
 
            Joan Mahn, M.D., following an EKG.  Dr. Iannone indicated 
 
            that an angiogram was done and showed multiple vessel 
 
            coronary artery disease with an inferior wall myocardial 
 
            infarction, total blockage of the right coronary artery, 
 
            total occlusion of a smaller branch called the circumflex 
 
            and a 50 percent blockage of the left anterior descending 
 
            artery.  Claimant had major blockages in all the major heart 
 
            arteries.  Dr. Iannone indicated that the heart attack came 
 
            about by reason of arthrosclerosis, a term which Dr. Iannone 
 
            likened to a rusty pipe:
 
            
 
                 [A.]  ... The areas plug up.  Then the area of the 
 
                 body supplied by those arteries dies or doesn't 
 
                 get enough blood.  In this case he had a 
 
                 combination of both, part of the heart dying and 
 
                 part of the heart not getting enough blood.
 
            
 
                 And some of the etiological factors in 
 
                 arthrosclerosis are genetic in the family history 
 
                 which he appears to have had.  They are 
 
                 hypertensive, past history of high blood pressure, 
 
                 smoking, high cholesterol, high fats, possibly 
 
                 stress.  All this but diabetes are all factors 
 
                 that appear to play a role in bringing this state 
 
                 of arthrosclerosis on in the patient.
 
            
 
                 Q.  Doctor, before you continue, which of those 
 
                 factors were present with Chuck?
 
            
 
                 A.  Okay.  We mentioned that he had a history of 
 
                 high blood pressure and we mentioned that it was a 
 
                 family history.  Off the top of my head in looking 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 at this I don't know of any others right at this 
 
                 time.
 
            
 
                 His cholesterol at that time was normal.  His 
 
                 triglycerides at that time were normal, so he did 
 
                 not have a lipid abnormality.  That's basically 
 
                 all I can give you at this time.
 
            
 
            (Dr. Iannone deposition, pages 8-9)
 
            
 
                 Claimant was treated with an angiogram and percutaneous 
 
            transluminal angioplasty plus the use of clot reducing 
 
            agents.  In September 1986, claimant again had problems with 
 
            recurrent chest pains and with rhythm disturbances of the 
 
            heart, ventricular tachycardia.  Tachycardia was treated 
 
            with multiple drugs and catheter lab procedures in an 
 
            attempt to destroy abnormal electrical connections within 
 
            the heart.  Unfortunately, this did not prevent claimant's 
 
            subsequent cardiac arrest.
 
            
 
                 Dr. Iannone testified to his impression that claimant 
 
            suffered hypertensive cardiovascular disease.  That is, that 
 
            claimant's long-standing hypertension (diagnosed in 1974) 
 
            played a role in bringing on the arthrosclerosis.  Asked 
 
            what caused hypertension, Dr. Iannone indicated that 
 
            approximately 85-90 percent of patients are of unknown 
 
            etiology, including claimant.  He noted that stress can 
 
            cause blood pressure to temporarily rise and that if a 
 
            working or other environment is quite hostile to an 
 
            individual, the blood pressure may be up for longer periods 
 
            of time; further, that arterial blockage is related to the 
 
            duration and extent of high blood pressure.
 
            
 
                 Questioned on the key issue of causation, Dr. Iannone 
 
            testified:
 
            
 
                 Q.  Thank you.  Doctor, is there any way that you 
 
                 can determine whether -- and you may not be able 
 
                 to, so feel free to, you know, answer in that 
 
                 fashion if you feel it's appropriate -- but is 
 
                 there any way for you to determine if the stress, 
 
                 exertion, hypertension from Mr. Harvey's job 
 
                 exceeded personal causes or nonemployment-related 
 
                 causes such as processes of nature in bringing 
 
                 about his heart pathology?
 
            
 
                 ....
 
            
 
                 A.  I don't know if I could state which of the 
 
                 factors played a more significant role.  I think 
 
                 the more better way to say it is they all probably 
 
                 played some role and the weight of each individual 
 
                 thing could be addressed if you wanted to get into 
 
                 that, but it would still be an estimate on my 
 
                 part.
 
            
 
            (Dr. Iannone dep., p. 19)
 
            
 
                 And, on cross-examination:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Q.  Doctor, there was some discussion in direct 
 
                 examination regarding work stress that Mr. Harvey 
 
                 may have and probably did have, but he was on 
 
                 vacation at the time that he had his first heart 
 
                 attack.
 
            
 
                 Does that have any effect on I guess the way that 
 
                 you feel about stress as even being a possibility 
 
                 of any contribution?
 
            
 
                 A.  Since we know that this disease process does 
 
                 not necessarily come on overnight in some cases 
 
                 and that the disease process may preexist for long 
 
                 periods of time, there are various things that can 
 
                 precipitate it from sleeping and dreaming to being 
 
                 at work.
 
            
 
                 And I think one has to look at always the set of 
 
                 circumstances and again I'm not privy to exactly 
 
                 the certain circumstances or I don't have 
 
                 knowledge of the exact circumstances of the heart 
 
                 attack that originally occurred in '86 as to what 
 
                 actually happened then to say well, that is where 
 
                 it all started and the job or a stress factor 
 
                 contributed to it at that time.
 
            
 
                 What I am aware of here is that once the process 
 
                 was here, that the work environment certainly 
 
                 didn't help the matter and may have played a role 
 
                 in possibly worsening the process after the first 
 
                 heart attack occurred.
 
            
 
                 And remember, too, that the process was there 
 
                 prior to the overt event of the heart attack and I 
 
                 think the problem I have here is saying well, when 
 
                 it actually occurs may not be always that 
 
                 significant in that the milieu or the environment 
 
                 which causes the heart attack antedates sometimes 
 
                 the event by weeks, months or years and that the 
 
                 event occurs, it may matter little where it 
 
                 occurred or what the actual circumstances were.
 
            
 
                 They may occur with heavy activity wherein then 
 
                 you can directly correlate, but they may not, and 
 
                 yet that does not mitigate that it did not have a 
 
                 role to play in what actually happened.
 
            
 
                 Q.  Just makes it a bit more speculative, doesn't 
 
                 it?
 
            
 
                 A.  Well, that's a problem with this disease in 
 
                 always trying to say it happened at this time 
 
                 because in him we can have heart attacks that do 
 
                 on -- We call them stutter heart attacks -- that 
 
                 go for a period of several days.
 
            
 
                 We have heart attacks that take hours to evolve so 
 
                 that we have had people come in three or four days 
 
                 after their heart attack and say, "Oh, yeah, I ate 
 
                 something back then.  I thought it was an upset 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 stomach, but today I really had chest pain," and 
 
                 you look at this x-ray and say, "Gee, this guy had 
 
                 a heart attack four days ago."
 
            
 
                 And so in him we knew that the disease state was 
 
                 very, very critical and had preexisted prior to 
 
                 him coming with his heart attack.  It was there.  
 
                 The manifestation occurred that day.
 
            
 
                 Now, you know, again I don't know how long he was 
 
                 on vacation or what he was doing or whether he was 
 
                 carrying the work on vacation with him.  I just 
 
                 don't know.  So I can't comment on that exact 
 
                 event as to its relationship to the heart attack 
 
                 that he had and how it related to work.  I just 
 
                 don't have that information.
 
            
 
            (Dr. Iannone dep., pp. 32-34)
 
            
 
                 Dr. Iannone had previously written claimant's attorney 
 
            on February 29, 1988:
 
            
 
                 In reviewing the records you enclosed on February 
 
                 4th it is quite apparent that Mr. Harvey has done 
 
                 above and beyond what the average person would be 
 
                 expected or would do.  He certainly is a gentleman 
 
                 to be admired in his civic responsibilities as 
 
                 well as responsibilities in his work load.  I 
 
                 think the civic obligations probably do not relate 
 
                 to this particular situation but in reviewing the 
 
                 data sent it certainly appears that the work 
 
                 related responsibilities changed significantly in 
 
                 June of 1986 with the assigment [sic] of a fourth 
 
                 ward district earlier that year.  It would appear 
 
                 Mr. Harvey is quite driven but as well, it would 
 
                 appear that he was under a considerable amount of 
 
                 stress given the work requirements.
 
            
 
                 As before, I cannot make a definitive statement in 
 
                 regard to work environments, work stress and 
 
                 cardiac events.  It has been suggested on many 
 
                 occasions that there is a direct relationship to 
 
                 stress anxiety and premature vascular disease.  
 
                 Accordingly I would feel that your quest for 
 
                 workman's [sic] compensationloThe Law of 
 
                 Workmen's Compensation section 38.64(c), at 7-145 
 
                 (1972):
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                      The most obvious relevance of this 
 
                      element [continuing exertion after 
 
                      symptoms] is in showing causal 
 
                      connection between the obligations of 
 
                      the employment and the final injury; for 
 
                      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 the exertions of 
 
            normal nonemployment life.  The exertion may be physical or 
 
            mental.
 
            
 
                 It is important to note that the level of stress or 
 
            exertion which must be considered as unusual is not the 
 
            stress or exertion normal in the occupation of city 
 
            coordinator, but the comparison must be made to the stress 
 
            or exertion of normal nonemployment life.  Claimant 
 
            testified to working long hours, taking on substantial 
 
            additional responsibilities in a progressive manner and 
 
            being subject to the stress that is naturally attendant to 
 
            fielding calls for assistance from the citizenry of a 
 
            metropolitan area at all hours of the night and day.  This 
 
            seems clearly more stressful than normal nonemployment life 
 
            "of the employee or of any other person."  Claimant has met 
 
            the first standard of the legal test.
 
            
 
                 Claimant need only prove one of the three standards of 
 
            the legal test.  He has proved the first standard.  Although 
 
            it is not necessary to discuss the other two standards, it 
 
            is clear that neither were met.  Claimant's testimony 
 
            indicated that the stress he had been experiencing was 
 
            something that had gradually built.  Thus, the work stress 
 
            for claimant was not greater than his normal work.  Also, 
 
            claimant clearly did not continue working nor did he feel 
 
            impelled to continue working after the onset of symptoms.
 
            
 
                 Claimant's reliance upon Hanson v. Reichelt, 452 N.W.2d 
 
            164 (Iowa 1990) is misplaced.  That case is not applicable 
 
            to heart attack cases.  The court clearly limited its 
 
            holding in that case to heatstroke cases.
 
            
 
                 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.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The only medical evidence as to the causation issue 
 
            comes from Dr. Iannone, a board-certified cardiologist.  A 
 
            fair reading of his testimony is that he finds a possibility 
 
            that employment stress hastened or caused claimant's 
 
            arteriosclerotic condition, but that he is unable to testify 
 
            to the probability of such a relationship.  Claimant has a 
 
            family history of heart disease and suffered high blood 
 
            pressure since 1974.  Dr. Iannone felt that approximately 
 
            85-90 percent of hypertensive patients are of unknown 
 
            etiology, including claimant.  Dr. Iannone testified that 
 
            stress, exertion, hypertension, personal and 
 
            nonemployment-related causes such as processes of nature all 
 
            probably played some role, but it would be an estimate on 
 
            his part to address the weight of each individual factor.  
 
            Dr. Iannone was unable to speculate as to what significance 
 
            it may have had that claimant was vacationing at the time of 
 
            this incident.  As Dr. Iannone wrote claimant's attorney on 
 
            February 29, 1988, he cannot make a definitive statement in 
 
            regard to work environments, work stress and cardiac events.
 
            
 
                 Claimant was vacationing at the time of his coronary.  
 
            Claimant was diagnosed by Dr. Iannone as suffering 
 
            hypertensive cardiovascular disease.  It is held that 
 
            claimant has failed to meet his burden of establishing that 
 
            stress at work caused either the heart attack itself or the 
 
            underlying hypertensive vascular disease and 
 
            arteriosclerosis.  The lack of chronological proximity to 
 
            claimant working and the onset of symptoms reinforces the 
 
            lack of evidence of causal connection.  It is also noted 
 
            that there was a chronological proximity between claimant's 
 
            symptoms and an apparent attempt to purchase property for 
 
            personal purposes while on vacation.
 
            
 
                 In summary, claimant has proved that his work exertions 
 
            were greater than those of normal nonemployment life.  
 
            Claimant has not proved that the work exertions in fact 
 
            caused the heart attack.  Claimant has not met his burden of 
 
            proving that he had an injury (heart attack) on June 16, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            1986 that arose 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 July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      _________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jeffrey G. Flagg
 
            Attorney at Law
 
            2716 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Bruce Bergman
 
            Assistant City Attorney
 
            City Hall
 
            East 1st & Locust
 
            Des Moines, Iowa  50307
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1100; 1108.10; 2202
 
                                                   Filed July 29, 1992
 
                                                   Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            CHARLES E. HARVEY,            :
 
                                          :
 
                 Claimant,                :      File No. 865355
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            CITY OF DES MOINES, IOWA,     :      D E C I S I O N
 
                                          :
 
                 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 proved that his work exertions were greater than 
 
            substantial additional responsibilities in a progressive 
 
            manner.  He was "on call 24 hours" a day for telephone calls 
 
            form the citizenry.
 
            Claimant's heart attack occurred on the sixth day of 
 
            vacation.  The only medical evidence did not prove that the 
 
            work exertion was the probable cause of claimant's heart 
 
            attack.  Claimant failed to satisfy the medical test and 
 
            failed to prove that his heart attack arose out of and in 
 
            the course of his employment.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES E. HARVEY,
 
         
 
              Claimant,                          File No. 865355
 
         
 
         VS.                                  A R B I T R A T I O N
 
         
 
         CITY OF DES MOINES, IOWA,               D E C I S I O N
 
         
 
              Employer,
 
              Defendant.
 
              Self-Insured,
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Charles E. Harvey against defendant self-insured employer City of 
 
         Des Moines, Iowa, to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury sustained on June 16, 
 
         1986.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner in Des Moines, Iowa, on June 23, 
 
         1989.  The matter was considered fully submitted on that date, 
 
         although both parties subsequently filed briefs.
 
         
 
              The record in this proceeding consists of joint exhibits I 
 
         through VII and the testimony of the following witnesses: 
 
         claimant, Richard Wright and Rosanna Harvey.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing, the following issues have been 
 
         stipulated: the existence of an employment relationship between 
 
         claimant and defendant at the time of the alleged injury; that if 
 
         claimant has sustained permanent disability causally related to 
 
         the injury, it is an industrial disability to the body as a whole 
 
         and the commencement date is December 10, 1987; that the 
 
         appropriate rate of weekly compensation is $325.73; that claimant 
 
         does not seek healing period benefits.
 
         
 
              Issues presented for resolution include: whether claimant 
 
         sustained an injury arising  out of and in the course of his 
 
         employment on June 16, 1986; whether the alleged injury caused 
 
         permanent disability and the extent
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         thereof; the extent of claimant's entitlement to medical 
 
         benefits; taxation of costs.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant, 61 years of age at hearing, began employment with 
 
         the City of Des Moines in March, 1972.  When he retired on April 
 
         1, 1989, he was coordinator for Southeast Pioneer-Columbus 
 
         Community and Housing Services.  He had previously had different 
 
         job titles, but roughly similar duties.
 
         
 
              Claimant's duties at first included acting as advisor to a 
 
         neighborhood board, writing critiques for projects and working 
 
         directly for the neighborhood board.  He worked some 50 or 60 
 
         hours per week.  Thereafter, claimant added substantial job 
 
         duties, particularly after 1975.  Those duties included starting 
 
         a garden project in 1978, starting a fan distribution project, 
 
         starting a Christmas basket distribution project, setting up flu 
 
         clinics for the elderly, work on distribution of surplus foods, 
 
         ordering materials for city-wide weatherization projects, 
 
         initiating neighborhood watch programs, arranging political 
 
         forums and speakers, acting as a substitute coordinator for other 
 
         site offices, and similar duties.
 
         
 
              During the year before claimant's first heart attack on June 
 
         16, 1986, his job duties increased substantially.  He took on the 
 
         garden project, an energy assistance program, continued working 
 
         "double duty" on the surplus commodities program for other areas, 
 
         and had taken over a second area office.  Claimant indicated that 
 
         he did not believe that he suffered from stress or personal 
 
         problems unrelated to work prior to 1986.
 
         
 
              However, he was awarded a 10 percent service-connected 
 
         disability following a tour of duty in the United States Navy in 
 
         1946 and 1947.  He was told at the time that the disability 
 
         related to an ulcer problem, but later found that the award was 
 
         based on his history of anxiety.
 
         
 
              Claimant had no prior symptoms before his coronary event on 
 
         June 16, 1986.  This occurred after he had been vacationing for 
 
         approximately six days.  Claimant first stumbled and felt pain in 
 
         the left shoulder.  About one day later, he woke up at night 
 
         suffering from indigestion.  Claimant later had something of a 
 
         hallucinatory experience at a swimming pool.  Afterwards, he 
 
         drove back home with his wife, but is unable to recall that trip.  
 
         Upon returning to Iowa, claimant discovered that his home had 
 
         been burglarized while he was on vacation.  He contacted the 
 
         police and his
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         physician, only then learning that he had suffered a heart attack 
 
         approximately three days before.
 
         
 
              Claimant described a second incident in October, 1986.  
 
         Claimant suffered a cardiac arrest while (on his own time) 
 
         teaching or instructing an acquaintance in how to hang a door.  
 
         Claimant had walked over four miles prior to this incident.  
 
         Claimant gave dramatic testimony of an "out of body" experience 
 
         at the time of his cardiac arrest.  He was promptly taken to the 
 
         hospital by an emergency vehicle and was fortunately able to 
 
         survive the experience.
 
         
 
              Claimant also testified to numerous problems and incapacity 
 
         resulting from these coronary incidents.  He has very little 
 
         recollection of the years 1986 and 1987, even including the death 
 
         of his mother in March, 1986.  He finds himself "muddle-headed," 
 
         has sustained a memory loss, is emotional, staggers and stumbles, 
 
         and has lost strength.  He suffers shaking, mild angina, spells 
 
         of nervousness, does not sleep well and suffers from tachycardia.  
 
         The writer observed at hearing that claimant gave the impression 
 
         of feebleness, shook, was emotional, and appeared to be rather 
 
         slow moving.
 
         
 
              Claimant stressed that he believes himself to now be totally 
 
         disabled and believes that this situation has come about because 
 
         overwork and stress caused his heart problems.
 
         
 
              Richard Wright testified to being director of the Department 
 
         of Housing and Community Services for the City of Des Moines.  He 
 
         has known claimant for 15-20 years and was claimant's supervisor 
 
         after 1975.
 
         
 
              Mr. Wright agreed that it was fair to say that claimant's 
 
         job duties increased substantially after 1975 and agreed that 
 
         public service work involves stress.  He has no doubt that 
 
         claimant put in extra hours and that claimant was a good and hard 
 
         worker, both before and after June, 1986.  Claimant continued to 
 
         carry out his assignments until his retirement in 1989.
 
         
 
              Wright agreed that some duties have increased and that the 
 
         number of people served by claimant's,.office has increased, but 
 
         did not believe that the hours claimant devoted to the job 
 
         increased.  He was:aware that claimant received late telephone 
 
         calls from citizens and believed that claimant truly loved his 
 
         job.  He noted that other coordinators also worked on various 
 
         projects and reports and stated that there is a lack of 
 
         uniformity in the job requirements of coordinators in different 
 
         service areas.
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA
 
         Page 4
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Rosanna Harvey testified to being claimant's spouse for some 
 
         17 years.  She agreed that claimant did not suffer known heart 
 
         problems prior to the infarction of June, 1986.  She believed 
 
         that incident caused the most physical damage, while the cardiac 
 
         arrest in October caused more damage to claimant's memory.
 
         
 
              Ms. Harvey indicated that she had helped work with claimant 
 
         in the summer and gradually saw an increase in his duties.  She 
 
         noted that claimant began to complain of his increased duties 
 
         some 6-12 months prior to the first coronary incident.  She was 
 
         of the view that claimant had no unusual nonwork-related stress 
 
         in his life prior to June, 1986.
 
         
 
              Liberato A. Iannone, M.D., testified by deposition on June 
 
         7, 1989.  Dr. Iannone is a board-certified specialist in 
 
         cardiology and has been treating claimant since the initial 
 
         myocardial infarction.  Claimant was admitted to Mercy Hospital 
 
         Medical Center with a prior history of high blood pressure, 
 
         family history of heart disease, and presenting with a heart 
 
         attack diagnosed by family physician Joan Mahn, M.D., following 
 
         an EKG.  Dr. Iannone indicated that an angiogram was done and 
 
         showed multiple vessel coronary artery disease with an inferior 
 
         wall myocardial infarction, total blockage of the right coronary 
 
         artery, total occlusion of a smaller branch called the circumflex 
 
         and a fifty percent blockage of the left anterior descending 
 
         artery.  Claimant had major blockages in all the major heart 
 
         arteries.  Dr. Iannone indicated that the heart attack came about 
 
         by reason of arthrosclerosis, a term which Dr. Iannone likened to 
 
         a rusty pipe:
 
         
 
              [A.] . . The areas plug up.  Then the area of the body 
 
              supplied by those arteries dies or doesn't get enough blood.  
 
              In this case he had a combination of both, part of the heart 
 
              dying and part of the heart not getting enough blood.
 
              
 
              And some of the etiological factors in are genetic in the 
 
              family history which he appears to have had.  They ate 
 
              hypertensive, past history of high blood pressure, smoking, 
 
              high cholesterol, high fats, possibly stress.  All this but 
 
              diabetes are all factors that appear to play a role in 
 
              bringing this state of arthrosclerosis on in the patient.
 
              
 
              Q.  Doctor, before you continue, which of those factors were 
 
              present with Chuck?
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA 
 
         Page 5
 
         
 
         
 
              A. Okay.  We mentioned that he had a history of high blood 
 
              pressure and we mentioned that it was a family history.  Off 
 
              the top of my head in looking at this I don't know of any 
 
              others right at this time.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              His cholesterol at that time was normal.  His triglycerides 
 
              at that time were normal, so he did not have a lipid 
 
              abnormality.  That's basically all I can give you at this 
 
              time.
 
         
 
         (Dr. Iannone deposition, page 8, line 21 through page 9, line 16)
 
         
 
              Claimant was treated with an angiogram and percutaneous 
 
         transiuminal angioplasty plus the use of clot reducing agents.  
 
         In September, 1986, claimant again had problems with recurrent 
 
         chest pains and with rhythm disturbances of the heart, 
 
         ventricular tachycardia.  Tachycardia was treated with multiple 
 
         drugs and catheter lab procedures in an attempt to destroy 
 
         abnormal electrical connections within the heart.  Unfortunately, 
 
         this did not prevent claimant's subsequent cardiac arrest.
 
         
 
              Dr. Iannone testified to his impression that claimant 
 
         suffered hypertensive cardiovascular disease.  That is, that 
 
         claimant's long-standing hypertension (diagnosed in 1974) played 
 
         a role in bringing on the arthrosclerosis.  Asked what caused 
 
         hypertension, Dr. Iannone indicated that approximately 85-90 
 
         percent of patients are of unknown etiology, including claimant.  
 
         He noted that stress can cause blood pressure to temporarily rise 
 
         and that if a working or other environment is quite hostile to an 
 
         individual, the blood pressure may be up for longer periods of 
 
         time; further, that arterial blockage is related to the duration 
 
         and extent of high blood pressure.
 
         
 
              Questioned on the key issue of causation, Dr. Iannone 
 
         testified:
 
         
 
              Q. Thank you.  Doctor, is there any way that you can 
 
              determine whether -- and you may hot be able to, so feel 
 
              free to, you know, answer in that fashion if you feel it's 
 
              appropriate -- but is there any way for you to determine if 
 
              the stress, exertion, hypertension from Mr. Harvey's job 
 
              exceeded personal causes or nonemployment-related causes 
 
              such as processes of nature in bringing about his heart 
 
              pathology?
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA 
 
         Page 6
 
         
 
         
 
              A. I don't know if I could state which of the factors played 
 
              a more significant role.  I think the more better way to say 
 
              it is they all probably played some role and the weight of 
 
              each individual thing could be addressed if you wanted to 
 
              get into that, but it would still be an estimate on my part.
 
         
 
         (Dr. Iannone deposition, page 19, lines 6 through  23)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              And, on cross-examination:
 
         
 
              Q. Doctor, there was some discussion in direct examination 
 
              regarding work stress that Mr. Harvey may have and probably 
 
              did have, but he was on vacation at the time that he had his 
 
              first heart attack.
 
              
 
              Does that have any effect on I guess the way that you feel 
 
              about stress as even being a possibility of any 
 
              contribution?
 
              
 
              A. Since we know that this disease process does not 
 
              necessarily come on overnight in some cases and that the 
 
              disease process may preexist for long periods of time, there 
 
              are various things that can precipitate it from sleeping and 
 
              dreaming to being at work.
 
              
 
              And I think one has to look at always the set of 
 
              circumstances and again I'm not privy to exactly the certain 
 
              circumstances or I don't have knowledge of the exact 
 
              circumstances of the heart attack that originally occurred 
 
              in 186 as to what actually happened then to say well, that 
 
              is where it all started and the job or a stress factor 
 
              contributed to it at that time.
 
              
 
              What I am aware of here is that once the process was here, 
 
              that the work environment certainly didn't help the matter 
 
              and may have played a role in possibly worsening the process 
 
              after the first heart attack occurred.
 
              
 
              And remember, too, that the process was there prior to the 
 
              overt event of the heart attack and I think the problem I 
 
              have here is saying well, when it actually occurs may not be 
 
              always that
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA 
 
         Page 7
 
         
 
         
 
              significant in that the milieu or the environment which 
 
              causes the heart attack antedates sometimes the event by 
 
              weeks, months or years and that the event occurs, it may 
 
              matter little where it occurred or what the actual 
 
              circumstances were.
 
              
 
              They may occur with heavy activity wherein then you can 
 
              directly correlate, but they may not, and yet that does not 
 
              mitigate that it did not have a role to play in what 
 
              actually happened.
 
              
 
              Q. Just makes it a bit more speculative, doesn't it?
 
              
 
              A. Well, that's a problem with this disease in always trying 
 
              to say it happened at this time because in him we can have 
 
              heart attacks that do on -- We call them stutter heart 
 
              attacks -- that go for a period of several days.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              We have heart attacks that take hours to evolve so that we 
 
              have had people come in three or four days after their heart 
 
              attack and say, "oh, yeah, I ate something back then.  I 
 
              thought it was an upset stomach, but today I really had 
 
              chest pain," and you look at this x-ray and say, "Gee, this 
 
              guy had a heart attack four days ago."
 
              
 
              And so in him we knew that the disease state was very, very 
 
              critical and had preexisted prior to him coming with his 
 
              heart attack.  It was there.  The manifestation occurred 
 
              that day.
 
              
 
              Now, you know, again I don't know how long he was on 
 
              vacation or what he was doing or whether he was carrying the 
 
              work on vacation with him.  I just don't know.  So I can't 
 
              comment on that exact event as to its relationship to the 
 
              heart attack that he had and how it related to work.  I just 
 
              don't have that information.
 
         
 
         (Dr. Iannone deposition, page 32, line 2 through page 34, line 7)
 
         
 
              Dr. Iannone had previously written claimant's attorney on 
 
         February 29, 1988:
 
         
 
              In reviewing the records you enclosed on February 4th it is 
 
              quite apparent that Mr. Harvey has done above and beyond 
 
              what the average person would be
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA 
 
         Page 8
 
         
 
         
 
              expected or would do.  He certainly is a gentleman to be 
 
              admired in his civic responsibilities as well as 
 
              responsibilities in his work load.  I think the civic 
 
              obligations probably do not relate to this particular 
 
              situation but in reviewing the data sent it certainly 
 
              appears that the work related responsibilities changed 
 
              significantly in June of 1986 with the assignment [sic] of a 
 
              fourth ward district earlier that year.  It would appear Mr. 
 
              Harvey is quite driven but as well, it would appear that he 
 
              was under a considerable amount of stress given the work 
 
              requirements.
 
              
 
              As before, I cannot make a definitive statement in regard to 
 
              work environments, work stress and cardiac events.  It has 
 
              been suggested on many occasions that there is a direct 
 
              relationship to stress anxiety and premature vascular 
 
              disease.  Accordingly I would feel that your quest for 
 
              workmen's [sic] compensation could be pursued.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on June 16, 1986 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The 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 "arising out of" refer to the cause or source of 
 
         the injury.  McClure v. Union, et al., Counties, 188 N.W.2d 283 
 
         (Iowa 1971).  This requirement is satisfied by showing a causal 
 
         relationship between the employment and the injury.  Sheerin v. 
 
         Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment:at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. 
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA
 
         Page 9
 
         
 
         
 
              The.supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers, compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury.... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
              
 
                 ....
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 16, 1986 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc.,257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.. 0. 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).
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA
 
         Page 10
 
         
 
         
 
              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).
 
         
 
              Although asymptomatic before June 16, 1986, it is clear that 
 
         claimant suffered preexisting heart disease.  At the time of his 
 
         admission, claimant had major blockages in all the major.heart 
 
         arteries, a gradual process.  Dr. Iannone diagnosed claimant as 
 
         suffering hypertensive cardiovascular disease and claimant had 
 
         been diagnosed as suffering hypertension in 1974.  The crucial 
 
         issue in this case is whether claimant's employment and the 
 
         stress occasioned thereby was a substantial proximate cause in 
 
         producing his coronary event of June 16, 1986.  For a cause to be 
 
         proximate, it must be a substantial factor in producing the 
 
         result, but need not be the only such factor.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Quoting 1A [sic] Larson Workmen's Compensation Law, section 
 
         38.83, the Iowa court in Briarcliff College v. Campolo, 360 
 
         N.W.2d 91 (Iowa 1984) noted that a compensable injury may result 
 
         when heavy exertions ordinarily required by work are superimposed 
 
         upon a defective heart, aggravating or accelerating the 
 
         preexisting condition or "when the medical testimony shows an 
 
         instance of unusually strenuous employment exertion, imposed upon 
 
         a preexisting diseased condition."  As Professor Larson put it:
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA 
 
         Page 11
 
         
 
         
 
              If there is some personal causal contribution in the form of 
 
              a previously weakened or diseased heart, the employment 
 
              contribution must take the form of an exertion greater than 
 
              that of nonemployment life * * * . Note that the comparison 
 
              is not with this employee's usual exertion in his 
 
              employment, but with the exertions of normal nonemployment 
 
              life of this or any other person.
 
         
 
              Claimant must prove by a probability, not a possibility that 
 
         some employment incident or activity caused his coronary event.  
 
         Because he had a preexisting heart condition, he must prove that 
 
         he suffered an aggravation to his already impaired physical 
 
         condition (or show that the employment actually caused the 
 
         preexisting heart condition). Briarcliff College, supra.
 
         
 
              The legal standard for compensability of a heart attack 
 
         where the heart is previously weakened or diseased was 
 
         established in Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
         1974).  Compensability follows when medical testimony shows an 
 
         instance of unusually strenuous employment exertion or when the 
 
         employment contributes exertion that is greater than that of 
 
         nonemployment life.  The comparison is not with the particular 
 
         employee's usual exertion in employment, but with the exertions 
 
         of normal nonemployment life of the employee or any other person.
 
         
 
              Of course, in this case, claimant was not exerting himself 
 
         at his work at the time his coronary began, but was vacationing.  
 
         It is his theory that work-related stress brought on or 
 
         aggravated his disease.  Iowa has long interpreted injury broadly 
 
         to allow psychological as well as physical impairments to be 
 
         compensable.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 
 
         (Iowa 1969).
 
         
 
              However, the proper test in heart attack/stress cases is now 
 
         in doubt.  The Iowa Supreme Court recently adopted an "actual 
 
         risk" test in favor of the former "general public-increased risk" 
 
         test in cases of injury (here, heat stroke) brought on by 
 
         exposure to the elements.  Hanson v. Reichelt, 452 N.W.2d 164 
 
         (Iowa 1990).  Although the court's adoption of the actual risk 
 
         test was specifically limited to cases involving exposure to the 
 
         elements, there certainly exists the potential that the court, 
 
         given a suitable vehicle, might extend the actual risk test to 
 
         heart cases brought on by exertion or stress.  Nonetheless, it 
 
         seems premature to anticipate such a future holding of the court 
 
         and it is therefore held that the Sondag/Briarcliff College 
 
         teachings
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA 
 
         Page 12
 
         
 
         
 
         
 
         
 
         remain effective.  Yet, the result in this case would be the same 
 
         under either test.  It is important to note that the level of 
 
         stress or exertion which must be considered as unusual is not the 
 
         stress or exertion normal in the occupation of city coordinator, 
 
         but the comparison must be made to the stress or exertion of 
 
         normal nonemployment life.  Claimant testified to working long 
 
         hours, taking on substantial additional responsibilities in a 
 
         progressive manner and being subject to the stress that is 
 
         naturally attendant to fielding calls for assistance from the 
 
         citizenry of a metropolitan area at all hours of the night and 
 
         day.  This seems clearly more stressful than normal nonemployment 
 
         life "of the employee or of any other person."
 
         
 
              The meaning of that phrase is unclear to this observer.  The 
 
         exertions of normal nonemployment life of the employee may vary 
 
         widely with different claimants, and the exertions of normal 
 
         nonemployment life of "any other person" obviously vary to an 
 
         extreme degree.  It would be ridiculous to compare claimant's 
 
         exertions or stress to the exertions of any other person, using 
 
         the extremes as a test, since obviously only the most extremely 
 
         active claimants engage in exertion (or stress) beyond the 
 
         normal, everyday exertion of at least some physical fitness 
 
         devotees.  This is no test at all.  In Neil v. John Deere 
 
         Component Works, file number 756209 (Arb. decn. May 10, 1989), 
 
         another deputy explored at some length the concept that the 
 
         exertions of normal nonemployment life vary tremendously among 
 
         individuals.  It was noted that some individuals are extremely 
 
         sedentary, while others engage in hard physical labor on the 
 
         hottest days of summer and in sub-freezing temperatures in 
 
         winter.  The decision held that normal nonemployment covers a 
 
         wide range of activities and exertions, but that the pace or rate 
 
         at which an activity is performed is an important consideration.  
 
         This reasoning is adopted here, but the nature of the actual test 
 
         to be employed deserves further consideration.
 
         
 
              Is this a two-pronged test?  Is it appropriate that claimant 
 
         recover if his work exertion (stress) is greater than his own 
 
         normal nonemployment level of exertion?  It seems unreasonable to 
 
         peg compensability for a heart attack suffered at work to the 
 
         same.individual's normal level of exertion in nonemployment life.  
 
         That is to say, if this alone is the test, a sedentary claimant 
 
         would be allowed benefits that might be denied to a mote active 
 
         individual if both suffered coronaries performing the same job in 
 
         otherwise indistinguishable circumstances.  This appears far too 
 
         arbitrary to constitute an appropriate test for compensability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA
 
         Page 13
 
         
 
         
 
              Based on the foregoing, it appears that the only workable 
 
         test for determining the exertions of normal nonemployment life 
 
         of the employee or of any other person is a common-sense "normal 
 
         range" analysis.  As noted, Neil v. John Deere Component Works, 
 
         points out that the normal range of nonemployment exertion is 
 
         wide indeed.  Accord, 1B Larson Workmen's Compensation Law, 
 
         section 38.83(b).
 
         
 
              But, even given that claimant was subject to an unusual 
 
         level of job-related stress, he must still establish that this 
 
         stress was a substantial causative factor with respect to his 
 
         arteriosclerotic condition or coronary.  This is, as has been 
 
         seen, essentially in the domain of expert testimony.
 
         
 
              As has been seen, a possibility that the injury is causally 
 
         related to the work is insufficient; a probability is necessary.  
 
         Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
         N.W.2d 732 (1955); Mabrier v. A.M. Servicing Corp. of Raytown, 
 
         161 N.W.2d 180 (Iowa 1968).
 
         
 
              The only medical evidence as to the causation issue comes 
 
         from Dr. Iannone, a board-certified cardiologist.  A fair reading 
 
         of his testimony is that he finds a possibility that employment 
 
         stress hastened or caused claimant's arteriosclerotic condition, 
 
         but that he is unable to testify to the probability of such a 
 
         relationship.  Claimant has a family history of heart disease and 
 
         suffered high blood pressure since 1974.  Dr. Iannone felt that 
 
         approximately 85-90 percent of hypertensive patients are of 
 
         unknown etiology, including claimant.  Dr. Iannone testified that 
 
         stress, exertion, hypertension, personal and 
 
         nonemployment-related causes such as processes of nature all 
 
         probably played some role, but it would be an estimate on his 
 
         part to address the weight of each individual factor.  Dr. 
 
         Iannone was unable to speculate as to what significance it may 
 
         have had that claimant was vacationing at the time of this 
 
         incident.  As Dr. Iannone wrote claimant's attorney on February 
 
         29, 1988, he cannot make a definitive statement in regard to work 
 
         environments, work stress and cardiac events.
 
         
 
              Claimant was vacationing at the time of his coronary.  
 
         Claimant was diagnosed by Dr. Iannone as suffering hypertensive 
 
         cardiovascular disease.  It is held that claimant has failed to 
 
         meet his burden.of establishing that stress at work caused either 
 
         the heart attack itself or the underlying hypertensive vascular 
 
         disease and arteriosclerosis.  Therefore, claimant shall take 
 
         nothing from this proceeding.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HARVEY v. CITY OF DES MOINES, IOWA
 
         Page 14
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. Claimant was subjected to stresses in his employment with 
 
         City of Des Moines which were greater than the stresses of normal 
 
         nonemployment life and were greater than the stresses normally 
 
         endured by all employees on a daily basis by virtue of merely 
 
         being employed.
 
         
 
              2. Claimant has failed to show the probability that the 
 
         stresses he faced in his employment were a substantial factor in 
 
         bringing about either his arteriosclerotic condition, his 
 
         hypertensive cardiovascular disease or his heart attack of June 
 
         16, 1986.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusion of law is made:
 
         
 
              1. Claimant has failed to prove by a preponderance of the 
 
         evidence that the heart attack he suffered on June 16, 1986, and 
 
         the subsequent disability resulting therefrom, arose out of or 
 
         was proximately caused by his employment with City of Des Moines, 
 
         Iowa.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 14th day of May, 1990.
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         HARVEY v. CITY OF DES MOINES, IOWA
 
         Page 15
 
         
 
         
 
         Copies To:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Jeffrey G. Flagg
 
         Attorney at Law
 
         2716 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Bruce Bergman
 
         Assistant City Attorney
 
         City Hall
 
         East lst & Locust
 
         Des Moines, Iowa  50307
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1108-10
 
                                         Filed May 14, 1990
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHARLES E. HARVEY,
 
         
 
              Claimant,                  File No. 865355
 
          
 
          VS.                            A R B I T R A T I 0 N
 
          
 
          CITY                           OF DES MOINES, IOWA,   D E C I S I 0 N
 
          
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         5-1108.10
 
         
 
              Claimant, with preexisting hypertensive vascular disease, 
 
         suffered heart attack on vacation.  Claimant failed to prove that 
 
         employment stress caused heart attack.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MICHAEL D. DURHAM,
 
        
 
            Claimant,
 
                                                File No. 865358
 
        vs.
 
                                             A R B I T R A T I O N
 
        ADM MILLING CO., a/k/a ADM
 
        FLOUR CO.,                              D E C I S I O N
 
        
 
             Employer,                              F I L E D
 
             Defendant.
 
                                                   APR 28 1989
 
             
 
                                               INDUSTRIAL SERVICES
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             The above captioned matter was assigned for hearing to be 
 
             conducted at the industrial commissioner's office in Des Moines, 
 
             Iowa, on April 26, 1989 at 1:00 p.m. Claimant failed to appear 
 
             either in person or through his attorney at the time and place 
 
             scheduled for the hearing. No evidence of any nature was offered 
 
             or received.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on March 3, 1988 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).
 
        
 
            It has come to the undersigned's attention that proposed 
 
        settlement documents were received by the agency on April 25, 
 
        1989. At the time the case was scheduled for hearing, the 
 
        settlement documents had not yet been assigned for evaluation or 
 
        for determination as to whether or not the settlement was in 
 
        compliance with the controlling statutes and could be approved. 
 
        It is noted that prior settlement documents had been submitted in 
 
        this case which were not in compliance with the controlling 
 
        statutes and which were therefore not approved. Since the 
 
        settlement documents previously submitted were not approved, they 
 
        did not constitute a settlement of the case.
 
        
 
            The settlement documents which were filed April 25, 1989 are 
 
        deficient for the same reason as the prior settlement documents. 
 
        Compensation for permanent partial disability is payable in 
 
        weekly payments convening at the end of the healing period. Teel 
 
        v. McCord, 394 N.W.2d 405 (Iowa 1986); Iowa Code section 
 
        85.34(2).
 
        
 
            The proposed settlement documents stipulate that the healing 
 
        period ended April 3, 1988 and that 22.6 weeks of permanent 
 
        partial disability compensation is claimant's entitlement. 
 
        Accordingly, all permanent partial disability compensation should 
 
        have been paid 22.6 weeks after April 3, 1988 (September 8, 
 

 
        
 
 
 
 
 
        1988).
 
        
 
             Only those weekly payments which become payable in the 
 
             future can be commuted. Past due weekly benefits cannot be 
 
             commuted. Iowa Code section 85.45. Therefore, the settlement 
 
             documents submitted April 25, 1989 cannot be approved as they are 
 
             not in compliance with the controlling law.
 
        
 
            Division of Industrial Services Rule 343-4.23 states in 
 
        part:
 
        
 
             A settlement reached after assignment of a contested case 
 
             for hearing shall not automatically entitle the parties to 
 
             have the case removed from the assignment unless settlement 
 
             documents are submitted and approved prior to the time set 
 
             for hearing, but the industrial commissioner or the 
 
             commissioner's designee may remove a contested case from the 
 
             hearing assignment if satisfied that a firm settlement of 
 
             all issues in the contested case has been reached and if 
 
             satisfied that there is a probability that the settlement 
 
             when submitted will be approved.
 
             
 
             Upon examining the agency records of cases removed from the 
 
             hearing assignment, this case is not one which was so removed. 
 
             Upon checking with the Industrial Commissioner and the Industrial 
 
             Commissioner's designee, the records were confirmed as being 
 
             correct.
 
        
 
            It is therefore determined that claimant has failed to prove 
 
        that he sustained an injury which arose out of and in the course 
 
        of employment on or about March 3, 1988.
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that claimant take nothing from this 
 
             proceeding.
 
        
 
            IT IS FURTHER ORDERED that the costs of this proceeding are 
 
        assessed against claimant pursuant to Division of Industrial 
 
        Services Rule 343-4.33.
 
        
 
            Signed and filed this 28th day of April, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Jeffrey G. Flagg
 
        Attorney at Law
 
        415 Midland Financial Building
 
        Des Moines, Iowa 50309
 
        
 
        ADM Flour Plant
 
        Box 1357
 
        1925 East Grand
 
        Des Moines, Iowa 50305
 
        
 
        Crawford & Company
 
        P.O. Box 65781
 
        W. Des Moines, Iowa 50265
 

 
        
 
 
 
 
 
        
 
        CERTIFIED AND REGULAR MAIL
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                            52901, 53300
 
                                            Filed April 28, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        MICHAEL D. DURHAM,
 
        
 
            Claimant,
 
                                                          File No. 
 
        865358
 
        vs.
 
                                                          A R B I T R A 
 
        T I O N
 
        ADM MILLING CO., a/k/a ADM
 
        FLOUR CO.,                                        D E C I S I O 
 
        N
 
        
 
             Employer,
 
             Defendant.
 
             
 
             
 
        52901, 53300
 
        
 
             The case was assigned for hearing. At the appointed time, 
 
             claimant failed to appear or to present any evidence. Settlement 
 
             documents have been received in the office the day prior to the 
 
             date scheduled for hearing, but the case had not been taken off 
 
             the hearing assignment schedule. It was determined that claimant 
 
             failed to carry the burden of proving an injury which arose out 
 
             of and in the course of employment. All benefits were denied.