BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            HOWARD P. YOUNG,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 872593
 
            VALLEY SUPPLY COMPANY, INC.,  
 
                                                    A P P E A L
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                ISSUES
 
 
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
            Claimant is entitled to an industrial disability of 
 
            considerably more than the ten percent (10%) assigned by the 
 
            deputy.
 
 
 
                              FINDINGS OF FACT
 
 
 
            The findings of fact contained in the proposed agency 
 
            decision filed October 23, 1990 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            *****
 
            Claimant was employed by Valley Supply for only a couple of 
 
            months prior to the injury performing various duties 
 
            connected with the setting up of road barricades used in 
 
            highway construction such as filling sandbags, minor 
 
            maintenance and repairs and checking and handling the 
 
            warning barricades or signs.  Claimant testified that he 
 
            never discussed with Valley Supply whether the job was 
 
            permanent or not.  The owner of Valley Supply testified that 
 
            claimant was considered a seasonal employee as are most of 
 
            his other employees.
 
            On or about October 26, 1987, claimant [alleges he] injured 
 
            his lower spine when he fell to the ground while attempting 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            to load a heavy road barricade sign.  The issue of whether 
 
            or not claimant fell was a highly contested issue at 
 
            hearing.  Defendants point to the report of the incident in 
 
            hospital records which states that claimant only twisted his 
 
            back while lifting the sign.  Also, the insurance adjuster 
 
            for Aetna Casualty testified that his notes of a telephone 
 
            conversation indicate that claimant did not report an actual 
 
            fall.  Claimant, however, testified that he did in fact fall 
 
            and hit the ground and so told his physicians at the 
 
            hospital.  Claimant's story was verified by a friend who 
 
            testified that claimant reported to him soon after the 
 
            incident that he fell while loading signs.*****
 
            As a result of the injury of October 26, 1987, claimant was 
 
            absent from his job at Valley Supply from the date of injury 
 
            until July 14, 1989, when he reached maximum healing, except 
 
            for a period of time when he worked part-time for a 
 
            different employer between June 5, 1988 and August 29, 1988.  
 
            Following the injury claimant was initially treated by 
 
            Michael Van Natta, D.O., a family physician, for low back 
 
            pain.  Claimant was primarily treated by Dr. Van Natta for 
 
            an inguinal hernia diagnosed when claimant was examined 
 
            after the work injury.  This hernia was not related to the 
 
            injury.
 
            Claimant stated that he had low back pain since the injury 
 
            and after becoming dissatisfied with the care of Dr. Van 
 
            Natta, he sought treatment in January 1988 from R. B. 
 
            Stickler, M.D., a general surgeon.  Dr. Stickler felt that 
 
            claimant's hernia could not be surgically repaired until 
 
            claimant's blood pressure was reduced.  No treatment was 
 
            offered separately for claimant's low back pain.  Claimant 
 
            then received care in February 1988 from another family 
 
            practice physician, James Dolan, M.D., for continued back 
 
            pain and dizziness that had developed.  Dr. Dolan noted a 
 
            prior diagnosis of diabetes and left inguinal hernia.  
 
            Claimant continued to see Dr. Dolan in March 1988.  It is 
 
            unclear from the record what, if any, treatment claimant 
 
            received between March and August 1988.
 
            In August 1988, claimant was specifically diagnosed by Dr. 
 
            Dolan as suffering from a low back strain and back spasms.  
 
            After a series of tests,  claimant was referred to treatment 
 
            to a neurosurgeon, Robert D. Jones, M.D., when claimant 
 
            began to have bladder and bowel movement problems.  All 
 
            physicians at this point in time were aware of claimant's 
 
            long-standing low back problems stemming from a motorcycle 
 
            accident and back surgery in the 1940's.  They were also 
 
            familiar with spinal infections and abscess complications 
 
            occurring after this surgery extending into the 1960's.  Dr. 
 
            Jones confirmed in August 1988, that claimant continued to 
 
            suffer from vertebral osteomyelitis.  He also diagnosed that 
 
            claimant had developed another epidural abscess.  Dr. Jones 
 
            performed immediate surgery called an laminectomy in 
 
            conjunction with decompression and drainage of the abscess.  
 
            Claimant's bowel and bladder problems improved immediately 
 
            and claimant recovered subsequent to this surgery and later 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            surgeries to deal with complications and to close the wound.
 
            *****
 
            *****Claimant has a 20-30 percent permanent partial 
 
            impairment to the body as a whole.  Also, claimant is 
 
            permanently restricted to sedentary activity where he must 
 
            be able to alternate between sitting and standing or 
 
            walking.*****
 
            *****Claimant has suffered only a 10 percent loss of earning 
 
            capacity.  Claimant's medical condition before the work 
 
            injury was not excellent given his preexisting osteomyelitis 
 
            and his susceptibility to injury.  It is true that claimant 
 
            was able to fully perform heavy manual labor prior to the 
 
            work injury and had no difficulty with prolonged sitting or 
 
            standing.  It is also true as a result of the work injury 
 
            and his physical limitations, claimant's medical condition 
 
            prevents him from returning to heavy work.  However, 
 
            claimant's work history indicates that heavy work is not the 
 
            type of work best suited to claimant given his background 
 
            and experience.  In fact, throughout claimant's work life he 
 
            rarely was employed in occupations requiring heavy manual 
 
            labor.  Claimant's work history primarily consists of jobs 
 
            in sales, insurance underwriting and the ownership and 
 
            operation of restaurants.  The job at Valley Supply was his 
 
            first manual labor job since his early adult life.  
 
            Admittedly, claimant had to perform certain heavy tasks in 
 
            conjunction with his restaurant business.  However, it would 
 
            appear that heavy work was a minor aspect of such 
 
            employment.
 
            Furthermore, claimant appeared to be semi-retired when he 
 
            took the summer job at Valley Supply.  Prior to Valley 
 
            Supply, claimant had not been employed since he sold his 
 
            restaurant business in January 1986.  Claimant is 61 years 
 
            of age and apparently is no longer in the labor market.  
 
            Apart from the part-time job at the local hotel since the 
 
            injury, claimant has failed to demonstrate any effort to 
 
            look for suitable work.  Claimant appears to be well quali
 
            fied both physically and mentally for some type of adminis
 
            trative or clerical work given his background.  On the other 
 
            hand, claimant has his access to many part-time physical 
 
            jobs restricted by virtue of the work injury.*****Therefore, 
 
            claimant has suffered a mild loss of earning capacity which 
 
            needs to be compensated.
 
            *****Claimant had requested the [medical] expenses set forth 
 
            in exhibits 15 through 45.  Due to a lack of causal 
 
            connective evidence, exhibits 21, 26, 28, 29 and 30 are not 
 
            found causally connected to the work injury.  The balance of 
 
            the requested expenses are the result of the work injury as 
 
            they conform to the medical evidence.
 
            With reference to claimant's rate, it is found that 
 
            claimant's specific job at Valley Supply was seasonal given 
 
            the nature of the work and it's dependence upon road con
 
            struction which normally does not occur year-around in this 
 
            state.  However, claimant's employment as a barricade/ 
 
            construction worker was not exclusively seasonal.  Also, the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            owner of Valley Supply testified that he had full time 
 
            nonseasonal employees working for him.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed October 23, 1990 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
              I.  Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury which arose 
 
            out of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See Cedar Rapids Community Sch. v. Cady, 278 
 
            N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955).  An employer takes an 
 
            employee subject to any active or dormant health 
 
            impairments, and a work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            *****
 
             II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary 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, pos
 
            itive 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 cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, 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 compensabil
 
            ity, 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 condi
 
            tion, 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 this case, both claimant and defendants acknowledge that 
 
            any permanent back condition claimant presently has is 
 
            compensable as a work injury only if claimant did in fact 
 
            fall to the ground on October 26, 1987, as opposed to merely 
 
            twisting his back on that date.  The medical evidence 
 
            indicates that a mere twisting of the back would not provide 
 
            sufficient trauma to account for the bone alteration that is 
 
            responsible for claimant's present condition.  The medical 
 
            opinions that form the basis for a finding of causal 
 
            connection between his present condition and work activity 
 
            are dependent on an actual fall to the ground.  Claimant has 
 
            a prior back injury from the 1940s as well.
 
            Although claimant asserts that he did in fact fall, the 
 
            record shows that statements he made closer in time to the 
 
            event indicate he did not fall.  When he was presented at 
 
            Mercy Hospital emergency room, only two days after the 
 
            alleged injury, claimant stated he "slipped and twisted" his 
 
            back.  Defendants' exhibit 1.  One week after the incident, 
 
            the notation of claimant's description of the event was 
 
            "pulled muscle in back one week ago, slipped at work, caught 
 
            myself".  Defendants' exhibit B.  Significantly, claimant 
 
            admitted to witness Joanne Belle that he did not fall to the 
 
            ground.  Defendants' exhibit H.  The greater weight of the 
 
            evidence compels the conclusion that claimant did not fall 
 
            to the ground on October 26, 1987, but instead at most 
 
            merely slipped and twisted his back.  Claimant's medical 
 
            evidence does not show that this type of injury is 
 
            sufficient to have caused his present condition.  Claimant 
 
            has failed to carry his burden of proof that his present 
 
            back condition is causally connected to his work injury on 
 
            October 26, 1987.
 
            Claimant's slip and twist injury of October 26, 1987 did 
 
            result in some time off work.  When claimant was examined on 
 
            November 16, 1987, claimant was released to return to work.  
 
            There is no indication of ongoing treatment after that date.  
 
            Claimant is entitled to temporary total disability benefits 
 
            for the period from October 26, 1987 to November 16, 1987.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled only to an 
 
            order directing the responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            In the case at bar, claimant demonstrated by the medical 
 
            evidence a causal connection of most of the bills submitted 
 
            totaling $49,490.45.  Defendants will be ordered to pay 
 
            those bills pursuant to the decision in Krohn.
 
             IV.  Defendants argue that claimant's rate of compensation 
 
            should be computed under Iowa Code section 85.36(9) on an 
 
            annual basis as claimant's employment was seasonal.  
 
            However, this agency has long held that claimant's occupa
 
            tion as a barricade/construction worker, not simply his 
 
            employment, must be exclusively seasonal to qualify under 
 
            that subsection.  Wolfe v. Weigel & Stapf Construction Co., 
 
            Thirty-Third Biennial Report, Iowa Industrial Commissioner 
 
            221 (Arbitration Decision 1977).  Although in Iowa a 
 
            construction worker works seasonal, from a national 
 
            perspective the occupation is not seasonal.  Therefore, the 
 
            higher rate will be used in this case.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
 
 
                                  ORDER
 
 
 
            THEREFORE, it is ordered:
 
            1.  Defendants shall pay to claimant temporary total 
 
            disability benefits from October 26, 1987 through November 
 
            16, 1987, at the rate of one hundred sixty-six and 37/l00 
 
            dollars ($166.37) per week.
 
            2.  Defendants shall pay the medical expenses listed in the 
 
            prehearing report, exhibits 15 through 35 with the exception 
 
            of exhibits 21, 26, 28, 29 and 30.  Claimant shall be 
 
            reimbursed any of these expenses paid by him.
 
            3.  Defendants shall pay the accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            benefits previously paid.
 
            4.  Defendants shall pay the interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            5.  That claimant and defendants shall share equally the 
 
            costs of the appeal including transcription of the hearing.  
 
            Defendants shall pay all other costs.
 
            6.  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 ____ day of November, 1992.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                      ______________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Max Burkey
 
            Attorney at Law
 
            100 Court Ave  STE 121
 
            Des Moines  IA  50309
 
            
 
            Ms. Lorraine J. May
 
            Mr. Thomas G. Fisher, Jr.
 
            Attorneys at Law
 
            4th Floor  Equitable Bldg
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                              2906
 
                                              Filed November 30, 1992
 
                                              Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            HOWARD P. YOUNG,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 872593
 
            VALLEY SUPPLY COMPANY, INC.,  
 
                                                    A P P E A L
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2906  
 
            Compensability of claimant's back condition as a permanent 
 
            condition hinged on whether he fell to the ground on the 
 
            date in question, or merely twisted his back.  Although 
 
            claimant asserted he fell, he gave statements to the 
 
            emergency room personnel, his physician, and defendants' 
 
            investigator that he merely twisted his back.  Deputy's 
 
            determination of credibility reversed based on numerous 
 
            inconsistent statements in the record.  Claimant was awarded 
 
            temporary total disability benefits and medical expenses 
 
            related to the twisting incident.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TED SCHEUERMANN,
 
                                              File Nos. 872707, 872708
 
              Claimant,                                 773553
 
         
 
         vs.                                    A R B I T R A T I 0 N
 
         
 
         OSCAR MAYER FOODS                              A N D
 
         CORPORATION,
 
                                                  R E V I E W -
 
              Employer,
 
                                                  R E O P E N I N G
 
              Self-Insured,
 
              Defendant.                           D E C I S I O N
 
                                                      
 
         
 
                                                      F I L E D
 
         
 
                                                     AUG 16 1989
 
         
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening and arbitration 
 
         filed by Ted Scheuermann, claimant, against Oscar Mayer Foods 
 
         Corporation, self-insured employer, to recover additional 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury which arose out of and in the course of his employment 
 
         on May 18, 1984, and to recover benefits based on alleged 
 
         injuries of January 1, 1985 and May 28, 1986.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner May 4, 1989 and was considered fully submitted at 
 
         the close of the hearing.  The record in this case consists of 
 
         the testimony of claimant, claimant's exhibits 1 and 2, and 
 
         defendants' exhibits 1 through 7, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved May 4, 1989, with regard to file No. 773553, the only 
 
         issue presented for resolution is whether claimant is entitled to 
 
         additional permanent partial disability benefits as a result of 
 
         the injury of May 18, 1984.
 
         
 
              Claimant had also presented an issue, the matter of penalty 
 
         benefits pursuant to Iowa Code section 86.13.  This issue, 
 
         however, was not listed as an issue on the hearing assignment 
 
         order and, accordingly, the undersigned is without jurisdiction 
 
         to consider it.  See Joseph Presswood v. Iowa Beef Processors, 
 
         (Appeal Decision filed November 14, 1986) holding an issue not 
 
         noted on the hearing assignment order is an issue that is waived. 
 
         Accordingly, claimant's motion at hearing as well as claimant's 
 
         motion to amend the hearing assignment order must be and is 
 
         hereby denied.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              With regard to the alleged injuries of January 1, 1985 and 
 
         May 28, 1986, the following issues are presented for resolution:
 
         
 
              1.  Whether on the dates alleged claimant sustained an 
 
         injury which arose out of and in the course of his employment;
 
         
 
              2.  Whether the alleged injury is the cause of any temporary 
 
         or permanent disability;
 
         
 
              3.  Claimant's entitlement to weekly disability benefits 
 
         including temporary total disability/healing period and permanent 
 
         partial disability benefits;
 
         
 
              4.  The nature and extent of any entitlement to permanent 
 
         partial disability benefits;
 
              
 
              5.  Whether claimant is entitled to medical benefits as 
 
         provided by Iowa Code section 85.27; and
 
         
 
              6.  Whether claimant gave notice to the employer pursuant to 
 
         Iowa Code section 85.23.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on May 18, 1984 and entered into an 
 
         agreement for settlement with the employer which was approved by 
 
         the industrial commissioner's office January 16, 1987.  That 
 
         agreement provided, in part:
 
         
 
                   OSCAR MAYER FOODS CORPORATION and the undersigned 
 
              EMPLOYEE acknowledges that the EMPLOYEE has been paid in 
 
              full for all healing period payments.  That all past medical 
 
              bills have been paid, all additional medical expenses 
 
              connected with this injury will be borne by the employer, 
 
              and that the EMPLOYEE'S permanent partial disability arising 
 
              out of an injury at the PLANT on 5/18/84 amounts to 5% of 
 
              the right hand and 5% of the left hand which translates to 
 
              19 weeks at $173.47 per week, or a total of $3,295.93.
 
         
 
                   That with payment of the above, all amounts due are 
 
              satisfied, and that the injury referred to above was 
 
              bilateral carpal tunnel syndrome.
 
         
 
                   That this disability rating is supported by the medical 
 
              opinion of Dr. A. B. Grundberg, a copy of which is attached 
 
              to this Agreement.
 
         
 
         (Defendant's Exhibit 3)
 
         
 
              Claimant now argues he was entitled to 30 weeks of permanent 
 
         partial disability benefits on the basis that claimant's 
 
         disability should have been evaluated under Iowa Code section 
 
         85.34(2)(s) rather than Iowa Code section 85.34(2)(1), and that 
 
         after converting the 5 percent impairment ratings to the body as 
 
         a whole, claimant has a combined impairment of 6 percent of the 
 
         body as a whole (500 x .06 = 30).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified he began working for defendant on October 
 
         3, 1983, first as a ham boner for approximately two months and 
 
         then running a Wizard knife for approximately one year in July of 
 
         1984, on referral from defendant and after claimant had 
 
         complaints of pain, claimant came under the care of Arnis B. 
 
         Grundberg, M.D., who diagnosed bilateral carpal tunnel syndrome 
 
         and performed surgery in August 1984.  Claimant recalled he was 
 
         off work until approximately October 14, 1984 and that when he 
 
         returned to work his "problems got worse" in that the pain "went 
 
         up farther [his] arms."  Claimant stated that when he returned to 
 
         work he was assigned to the offal room hanging hog livers which 
 
         involved taking the livers off a table from his right and turning 
 
         around to his left to hang them on hooks.  Claimant estimated 
 
         each liver weighed between eight and ten pounds and that the 
 
         liver rack was about six feet tall with hooks extending from 
 
         approximately chin level to just below the knee.  (See claimant's 
 
         exhibit 2) Claimant stated that once full, he would push the rack 
 
         approximately 50 yards into a blast freezer, that he hung 3,000 
 
         to 4,000 livers per day, and that he did this job for 
 
         approximately three months. Claimant contends he sustained his 
 
         occupational injury in the form of thoracic outlet syndrome on or 
 
         about January 1, 1985 "as the result of hanging hog livers."  
 
         Claimant recalled that at this time he had symptoms of pain in 
 
         the wrist, a tingling/numbness in his fingers, particularly when 
 
         his arms were shoulder high, pain in his shoulder and pain in the 
 
         biceps.  Claimant maintained he had no such symptoms when he 
 
         began working in the offal room and that the symptoms came on 
 
         gradually after about two or three weeks.
 
         
 
              Claimant recalled that after leaving the offal room, which 
 
         was a light duty job, he became a deboner where he boned out 
 
         approximately 82 hams per eight hour day.  Claimant stated that 
 
         although he did no lifting above chest level and did not lift his 
 
         hands above chest level, his symptoms of arm, bicep and shoulder 
 
         pain did not go away but rather stayed about the same.  Claimant 
 
         stated he saw Dr. Grundberg in December of 1984 and about two 
 
         times in 1985 and reported his symptoms during those visits. 
 
         Claimant denied any mention of thoracic outlet syndrome by Dr. 
 
         Grundberg.  Claimant testified that he continued to do this job 
 
         until March of 1986 when he left work due to a nonoccupational 
 
         illness; that the plant closed on April 4, 1986 only to reopen 
 
         May 21, 1986; that he worked for a few days after May 21, 1986; 
 
         and that he was discharged from his employment on May 28, 1986 
 
         after he did not call in to report his absence.  Claimant stated 
 
         that when he last worked he was still experiencing the same 
 
         symptoms.
 
         
 
              Claimant testified that after his employment with defendant 
 
         ceased, he worked as a farmhand for three or four months doing 
 
         field work, driving a tractor and hauling grain, and that this 
 
         work did not involve raising his hands above chest level.  
 
         Claimant denied having any other employment in 1986 although he 
 
         sought work at about "100 places."  Claimant stated he worked for 
 
         Max Naylor for six to eight weeks, again as a farmhand and then 
 
         worked for about ten hours at Metro Mail sorting "junk mail," but 
 
         that he had to quit Metro Mail employment because his hands could 
 
         not do the work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant offered that in approximately June of 1987, at the 
 
         direction of his attorney, he saw Scott B. Neff, D.O., who 
 
         diagnosed thoracic outlet syndrome and that Dr. Neff referred him 
 
         to Alexander Matthews, M.D., for evaluation which was done in 
 
         1987.  Claimant maintained his symptoms remained "the same even 
 
         after" he left employment with defendant.  Claimant acknowledged 
 
         further employment with Rapistan Construction as a "fire watcher" 
 
         for about six weeks where he kept a wet tarp weighing 
 
         approximately 30 to 40 pounds under welders, and with Carl Rictes 
 
         from February 1988 until about July 1988 where he drove a tractor 
 
         and worked with cattle.  Claimant stated he was unemployed then 
 
         until August of 1988 when he secured his current employment with 
 
         Hydraulic Fabricators where he installs hydraulic systems on 
 
         trucks.  Claimant explained he works with hand tools and 
 
         mechanical wrenches, no power tools, that he works at waist 
 
         level, and that there are times when his hands "just quit" 
 
         requiring him to stop what he is doing and drop them for a period 
 
         of time.
 
         
 
              Medical records reveal that when claimant first came under 
 
         the care of Dr. Grundberg he had complaints of pain from the 
 
         wrist to the elbow with minimum neck symptoms and left shoulder 
 
         pain "with use in morning especially."  Dr. Grundberg reported 
 
         doing surgery on August 22, 1984 for decompression of the right 
 
         carpal tunnel, decompression of the right index, long and ring 
 
         trigger fingers, decompression of the left carpal tunnel, and 
 
         decompression of the left index and long trigger fingers, and 
 
         that claimant was released to return to work, working at his "own 
 
         pace" on October 15, 1984.  Dr. Grundberg's notes reveal claimant 
 
         was seen December 19, 1986 with complaints of numbness and 
 
         tingling and that "it is no better than it was before the 
 
         operation."  Dr. Grundberg wrote, "He was wondering about whether 
 
         he has more disability than I indicated and I told him that he 
 
         did not."  No further mention is made in any of Dr. Grundberg's 
 
         notes of shoulder pain; one entry on February 25, 1986 refers to 
 
         claimant being "tender just lateral to the biceps," that have 
 
         been so for approximately two weeks and that it started on the 
 
         job.  In October 1987, Dr. Grundberg declined to comment on any 
 
         diagnosis of thoracic outlet syndrome on the basis that he did 
 
         not operate or usually treat thoracic outlet syndrome and 
 
         recommended claimant be referred to a thoracic surgeon.
 
         
 
              On June 22, 1987, Scott B. Neff, D.O., advised claimant's 
 
         counsel:
 
         
 
                   Ted still has difficulty in both of his hands, but the 
 
              right side is worse than the left.  He has really [sic] 
 
              difficulty with the entire right shoulder and arm.  It is 
 
              interesting to note that actively that shoulder range of 
 
              motion is physiologic, and the Roos maneuver for thoracic 
 
              outlet syndrome is markedly abnormal on the right....
 
         
 
                   Mr. Scheuermann's carpal tunnel and trigger finger 
 
              incisions are well healed, and I believe repeat EMG studies 
 
              are warranted to see if he has any permanent residual in 
 
              order to give him a definite answer about permanent 
 
              impairment.  His hands are callous from doing some work at 
 
              home, but he is no longer working for the packing company.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   In my opinion this patient has a residual of bilateral 
 
              carpal tunnel syndrome and surgery, and his significant 
 
              problem at this time is the thoracic outlet obstruction 
 
              which is present on the right side.
 
         
 
         (Def. Ex. 4, p. 16)
 
         
 
              Claimant was seen by Thomas W. Bower, L.P.T., on June 24, 
 
         1987 at the request of Dr. Neff on EMG studies as well as an 
 
         impairment rating.  Mr. Bower, in conjunction with Dr. Neff, 
 
         included:
 
         
 
                   This patient began having problems while working for 
 
              Oscar Meyer [sic] in July of 1984.  He was complaining of 
 
              numbness and tingling in both hands which were waking him up 
 
              at night.  This was attributed to the type of job he was 
 
              doing at Oscar Meyer [sic] which consisted of using the 
 
              Wizard knife.  These studies revealed conduction studies 
 
              interpreted in the upper limits of normal.  This patient 
 
              underwent surgery for decompression of the right and left 
 
              carpal tunnel as well as decompression of the right index, 
 
              long, and ring trigger fingers and the left index, long 
 
              trigger fingers.  He had a relatively uneventful 
 
              post-operative course, but continues to complain of some 
 
              numbness and tingling particularly noticed when he is lying 
 
              on his back with his arms overhead.  He states in that 
 
              position he cannot bend his fingertips.
 
         
 
                   Discussion:  Based on our findings on this date, with 
 
              normal range of motion and an EMG study that is essentially 
 
              within normal limits, this patient essentially has not 
 
              incurred any impairment to either hand based on this 
 
              examination.  However, there is still some question whether 
 
              or not thoracic outlet is a possibility in terms of a future 
 
              diagnosis.  We have no way of ruling this out today with the 
 
              EMG study.  Therefore, we feel it imperative to rule this 
 
              diagnosis out.  Again, based on the carpal tunnel problem, 
 
              there would be no percentage of impairment incurred.
 
         
 
         (Def. Ex. 4, pp. 14-15)
 
         
 
              Dr. Neff referred claimant to Alexander Matthews, M.D., who 
 
         initially saw claimant October 16, 1987.  Dr. Matthews' 
 
         impression was that claimant "probably has thoracic outlet 
 
         compression syndrome, more pronounced on the left than on the 
 
         right."  Dr. Matthews testified that:
 
         
 
              Q.  You were then apparently able to formulate a definitive 
 
              diagnosis concerning this patient and that was what, sir?
 
         
 
              A.  With all these tests negative, chest x-ray being 
 
              negative, his CT spine being normal, his EMG being within 
 
              normal, then one would have to reenforce the initial 
 
              impression of a thoracic outlet compression.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Alexander Matthews, M.D., Deposition, Claimant's Ex. 1, page 16)
 
         
 
              Dr. Matthews opined that:
 
         
 
              Q.  Based upon the history that was related to you by Mr. 
 
              Scheuermann and the results of your examination and your 
 
              experience, were you able to formulate an opinion as to 
 
              whether there was a relationship between the thoracic outlet 
 
              compression and his occupation duties as described with 
 
              Oscar Mayer?
 
         
 
              A.  We see thoracic outlet compression primarily in people 
 
              who are engaged in manual type of work that entails 
 
              repetitive motions of the upper extremities, especially at 
 
              levels between the waist, shoulder, and above the head.  We 
 
              see this in people who work in production lines.  We see 
 
              this in people who use their arms excessively.  We see it in 
 
              athletes, for example.  We see it in people who go for body 
 
              building, and we see it in truck drivers.  We see it in 
 
              people who spend an excessive amount of time now with 
 
              computers where they are constantly using their arms at 
 
              shoulder level or immediately below.  So this is an entity 
 
              that is seen in people that use their arms quite a bit.
 
         
 
              Q.  Based on the history as he reported to you, would the 
 
              history be consistent with what you've described in the 
 
              development of the thoracic outlet compression?
 
         
 
              A.  It would be consistent.
 
         
 
         (Matthews Dep., Cl. Ex. 1, pp. 17-18)
 
         
 
              On December 10, 1987, claimant was evaluated by Douglas B. 
 
         Dorner, M.D., F.A.C.S., vascular and general surgeon.  Dr. Dorner 
 
         found claimant to have a "mild thoracic outlet syndrome" and 
 
         opined that:
 
         
 
              I did not have opportunity to examine Mr. Scheuermann after 
 
              the initial onset of his symptoms, and saw him only after 
 
              considerable time had elapsed and other activities had taken 
 
              place.
 
         
 
                   However, it is probable that the patient's occupational 
 
              duties with Oscar Mayer foods [sic] did contribute to the 
 
              initial development of his clinical mild thoracic outlet 
 
              syndrome.  This is based, obviously, upon the history as 
 
              related to me.  With regard to your second question, the 
 
              physical activity of the patient's farm work and brief 
 
              construction work experience undoubtedly did exacerbate his 
 
              underlying mild thoracic outlet syndrome symptoms.  It is 
 
              important to point out that it is felt that usually the 
 
              development of the thoracic outlet syndrome is prompted by 
 
              some degree of physical activity bringing to light a 
 
              previous predisposition to this entity.  Thus, his 
 
              occupational duties at Oscar Mayer foods [sic] and his farm 
 
              and construction work both can be considered to have 
 
              exacerbated at an underlying predisposition to this 
 
              syndrome.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Def. Ex. 4)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              I.  File No. 773553.
 
         
 
              The case law relating to review-reopening proceedings is 
 
         rather extensive.
 
         
 
              The opinion of the Iowa Supreme Court in Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
         (1940) stated "that the modification of...[an] award would depend 
 
         upon a change in the condition of the employee since the award 
 
         was made."  The court cited the law applicable at that time which 
 
         was "if on such review the commissioner finds the condition of 
 
         the employee warrants such action, he may end, diminish, or 
 
         increase the compensation so awarded" and stated at 1038:
 
         
 
              That the decision on review depends upon the condition of 
 
              the employee, which is found to exist subsequent to the date 
 
              of the award being reviewed.  We can find no basis for 
 
              interpreting this language as meaning that the commissioner 
 
              is to re-determine the condition of the employee which was 
 
              adjudicated by the former award.
 
         
 
              The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957) cited prior decisions and added a new facet to 
 
         the review-reopening law by stating at page 69:
 
         
 
              But it is also true that unless there is more than a 
 
              scintilla of evidence of the increase, a mere difference of 
 
              opinion of experts or competent observers as to the 
 
              percentage of disability arising from the original injury 
 
              would not be sufficient to justify a different determination 
 
              by another commissioner on a petition for review-reopening. 
 
              Such is not the case before us, for here there was 
 
              substantial evidence of a worsening of her condition not 
 
              contemplated at the time of the first award.
 
         
 
              In a somewhat analogous vein, the Iowa Court of Appeals held 
 
         in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 
 
         (Iowa App. 1978) that a review-reopening petition may allow a 
 
         change in compensation when a claimant has failed to improve to 
 
         the extent initially anticipated.
 
         
 
              A major pronouncement came in the case of Gosek v. Garmer 
 
         and Stiles Co., 158 N.W.2d 731 (Iowa 1968).  The opinion there, 
 
         at 732, stated that "[o]n a review-reopening hearing claimant has 
 
         the burden of showing by a preponderance of the evidence his 
 
         right to compensation in addition to that accorded by a prior 
 
         agreement or adjudication."  The opinion went on to discuss the 
 
         common understanding that "if a claimant sustained compensable 
 
         injuries of which he was fully aware at time of prior settlement 
 
         or award, but for some unexplainable reason failed to assert it, 
 
         he cannot, for the first time on subsequent review proceedings, 
 
         claim additional benefits."  The opinion continued at 733 "[b]ut 
 
         according to the apparent majority view, if a claimant does not 
 
         know of other employment connected injuries or disability at time 
 
         of any prior agreement or adjudication, he is not ordinarily 
 
         barred from later asserting it as a basis for additional 
 
         benefits."  The court went on to hold at 735 that "cause for 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         allowance of additional compensation exists on proper showing 
 
         that facts relative to an employment connected injury existed but 
 
         were unknown and could not have been discovered by the exercise 
 
         of reasonable diligence, sometimes referred to as a substantive 
 
         omission due to mistake, at time of any prior settlement or 
 
         award."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Each of these cases rest upon some disparity between 
 
         claimant's actual or anticipated physical condition at the time 
 
         of the previous assessment and the physical condition which 
 
         exists at the time of the review-reopening proceeding.  Thus, the 
 
         question initially becomes has claimant established a change in 
 
         his physical condition since the time of the agreement for 
 
         settlement.
 
         
 
              Claimant does not appear to argue that he has had a change 
 
         of condition with regard to the bilateral carpal tunnel syndrome 
 
         since the agreement for settlement was approved on January 16, 
 
         1987 and, based on the medical evidence submitted, such a change 
 
         of condition entitling claimant to additional benefits would not 
 
         be found to exist.  Rather, claimant argues that he is entitled 
 
         to an additional eleven weeks of benefits since benefits should 
 
         have been calculated pursuant to Iowa Code section 85.34(2)(s) 
 
         rather than 85.34(2)(1).  As cited above, the law with regard to 
 
         review-reopening is extensive and unambiguous.  The undersigned 
 
         is clearly prohibited from redetermining the condition of the 
 
         claimant which was determined at the time claimant entered into 
 
         the agreement for settlement.  This deputy cannot look at the 
 
         agreement for settlement as it was submitted and approved in 
 
         January 1987 and redetermine claimant's right to benefits merely 
 
         because this was a scheduled injury any more than she could 
 
         redetermine whether claimant's industrial disability may have 
 
         been in an arbitration proceeding for a body as a whole injury. 
 
         Claimant appears to have entered into the agreement for 
 
         settlement without duress or coercion.  Claimant was not 
 
         prohibited from inquiring of the industrial commissioner's office 
 
         nor from seeking the advice of counsel at the time he entered 
 
         into the agreement for settlement.  Claimant's election not to 
 
         inquire or seek the advice of counsel does not entitle him to a 
 
         redetermination of his impairment that was agreed to in January 
 
         of 1987.  Therefore, it is concluded that claimant shall take 
 
         nothing further as a result of these proceeding on account of his 
 
         injury of May 18, 1984. Claimant has not established a change of 
 
         condition and redetermination of claimant's condition as it 
 
         existed at the time the agreement for settlement was entered into 
 
         is not appropriate at this time.
 
         
 
              II.  File Nos. 872707 and 872708
 
         
 
              Consideration is thus given to claimant's allegations that 
 
         he sustained injuries on January 1, 1985 and May 28, 1986.
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant.must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              Claimant pleads the date of January 1, 1985, because the 
 
         condition was symptomatic at or about this date and because 
 
         January 1, 1985 was approximately the last date that claimant 
 
         worked in the job of hanging hog livers.  Claimant also pleads 
 
         May 28, 1985 because this was the date on which claimant was 
 
         discharged from his employment (although he last worked May 26, 
 
         1985, based on defendant's record) and because this was the last 
 
         date on which claimant could have been exposed to the 
 
         occupational duties giving rise to his condition.  Claimant 
 
         states:  "Regardless of the date chosen, it is the claimant's 
 
         contention that his occupational duties with Defendant led to the 
 
         development of thoracic outlet syndrome."
 
         
 
              There does not appear to be much dispute in the medical 
 
         evidence submitted that claimant suffers from thoracic outlet 
 
         syndrome as both Dr. Dorner and Dr. Matthews find claimant to 
 
         have a clinical case of thoracic outlet syndrome although Dr. 
 
         Dorner limits his opinion to finding a "mild" case thereof.  
 
         However, the finding that claimant suffers from this syndrome 
 
         does not necessitate a conclusion that this injury arose out of 
 
         and in the course of his employment.
 
         
 
              Initially, it must be noted that although claimant 
 
         maintained at hearing that he began experiencing pain in the 
 
         upper arms and shoulders after working for a short period time in 
 
         the offal room, there is no documentation of such complaints in 
 
         the employer's personnel records or in the notes of Dr. Grundberg 
 
         save one reference to pain in the biceps noted by Dr. Grundberg 
 
         in February of 1986.  This visit was long after claimant had left 
 
         the offal room and no other reference is ever made.  The 
 
         employer's personnel records contain numerous references to 
 
         claimant's complaints of pain in his hands and fingers and one 
 
         reference to forearm pain but no reference that the undersigned 
 
         could find to any pain in the shoulder/arm overall.  Clearly, 
 
         claimant's complaints have been recorded.  If claimant had 
 
         complained of more extensive problems, there is no reason to 
 
         believe that they, too, would not have been recorded.  
 
         Consequently, problems with regard to claimant's credibility 
 
         exist.
 
         
 
              The record establishes that there is a substantial gap of 
 
         time in claimant's medical treatment from when he last saw Dr. 
 
         Grundberg until he saw Dr. Neff, who first suggested to him the 
 
         possibility of thoracic outlet syndrome.  Claimant had other 
 
         employment in the interim.  Drs. Dorner and Matthews based their 
 
         opinions on the history claimant provided to them.  Dr. Dorner 
 
         admitted that claimant's subsequent employment, as well as his 
 
         work with defendant employer, exacerbated an underlying 
 
         predisposition to the syndrome.  Dr. Matthews acknowledged that 
 
         "all that a physician can do is go by what the patient tells 
 
         him."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has not alleged that any traumatic event while he 
 
         was employed by defendant caused the thoracic outlet syndrome. 
 
         Indeed, claimant's actions in pleading two dates as potential 
 
         injury dates lends credence to the fact that claimant's thoracic 
 
         outlet syndrome was as a result of cumulative injury or trauma. 
 
         The Iowa Supreme Court discussed cumulative injury in McKeever 
 
         Custom Cabinet v. Smith, 379 N.W.2d 368 (Iowa 1985).  This case 
 
         held that an employee is injured, under the theory of cumulative 
 
         injury, when, because of pain or physical inability, the employee 
 
         can no longer seek work.  Id. at 374.  Applying this rule of law 
 
         to claimant's circumstance, it must be concluded that claimant 
 
         has not sustained an injury arising out of and in the course of 
 
         his employment with defendant as claimant never left his 
 
         employment with defendant due to pain or physical inability to 
 
         continue working.  Claimant did not cease working in the offal 
 
         room because of any inability to do the assigned job.  Rather, 
 
         this job was a light duty job and claimant was capable of 
 
         returning to full-time employment without restrictions.  
 
         Likewise, claimant left his employment as a deboner in March of 
 
         1986 because of a nonoccupational illness and not because of any 
 
         inability to do the job he had been assigned.  Claimant did not 
 
         return to work in April when released because the plant was 
 
         closed, not because he was incapable because of pain or 
 
         disability of returning to the assigned job.  And, when claimant 
 
         was discharged in May of 1986, it was for failing to report when 
 
         absent not because of any pain or inability to do the task 
 
         assigned.  Claimant did not make any claim that his failure to 
 
         return to work was due to pain or any disabling condition in his 
 
         arm and shoulders.  Claimant did not stop working because of,pain 
 
         or disability.  Claimant therefore fails to meet the test found 
 
         in McKeever and considering all the above, has failed to show he 
 
         sustained an injury on January 1, 1985 or May 28, 1986 which 
 
         arose out of and in the course of his employment.  The other 
 
         issues presented for resolution need not be addressed and 
 
         claimant shall take nothing further as a result of these 
 
         proceedings.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on May 18, 1984 in the form of 
 
         bilateral carpal tunnel syndrome.
 
         
 
              2.  Claimant entered into an agreement for settlement which 
 
         was approved by the industrial commissioner's office on January 
 
         16, 1987 whereby claimant agreed he sustained a permanent partial 
 
         disability of 5 percent to each hand.
 
         
 
              3.  Claimant was paid a total of 19 weeks in permanent 
 
         partial disability benefits as a result of the agreement for 
 
         settlement and the injury of May 18, 1984.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  Claimant has not had a change of condition since the 
 
         agreement for settlement was entered into and approved.
 
         
 
              5.  Claimant alleged he sustained injuries arising out of 
 
         and in the course of his employment on January 1, 1985 and May 
 
         28, 1986 in the form of thoracic outlet syndrome.
 
         
 
              6.  Claimant, just prior to January 1, 1985, was working in 
 
         the offal room hanging hog livers.
 
              
 
              7.  Claimant stopped this work to return to ham boning.
 
              
 
              8.  Claimant did not cease work due to pain or any 
 
         disability.
 
              
 
              9.  Claimant worked deboning hams until approximately March 
 
         of 1986 when he left work due to a nonoccupational illness.
 
         
 
              10.  When claimant was released to return to work after this 
 
         illness, the plant was closed and claimant was not recalled to 
 
         work until approximately May 21, 1986.
 
         
 
              11.  Claimant returned to work when recalled, worked a short 
 
         period of time and was discharged from his employment on or about 
 
         May 28, 1986 for failing to report when absent.
 
         
 
              12.  Claimant did not leave work on May 28, 1986 due to pain 
 
         or any disability.
 
         
 
              13.  Claimant maintained he complained of upper extremity 
 
         and shoulder pains since approximately two weeks after he began 
 
         working in the offal room.
 
         
 
              14.  There is little documentation of claimant's alleged 
 
         complaints taken simultaneously at the time the complaints were 
 
         alleged to have begun.
 
         
 
              15.  Claimant suffers from thoracic outlet syndrome which 
 
         was diagnosed in approximately June of 1987, some fourteen months 
 
         after claimant ceased working for defendant employer and after he 
 
         had had employment in the interim.
 
         
 
              16.  Claimant did not sustain injuries arising out of and in 
 
         the course of his employment on January 1, 1985 and/or May 28, 
 
         1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant failed to show a change of condition since the 
 
         agreement for settlement was entered into and approved in January 
 
         of 1987 or entitlement to further benefits as a result of the 
 
         injury of May 18, 1984.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.  Claimant failed to meet his burden of proving that he 
 
         sustained an injury arising out of and in the course of his 
 
         employment on January 1, 1985.
 
         
 
              3.  Claimant failed to meet his burden of proving he 
 
         sustained an injury on May 28, 1985 which arose out of and in the 
 
         course of his employment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant shall take nothing as a result of these 
 
              proceedings.
 
         
 
              Costs are assessed against defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.36.
 
         
 
              Signed and filed this 16th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Ave, Ste 201
 
         Des Moines, IA  50312
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St, Ste 16
 
         Des Moines, IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-2905; 5-1100;
 
                                            1402.30
 
                                            Filed August 16, 1989
 
                                            Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TED SCHEUERMANN,
 
                                               File Nos. 872707, 872708
 
              Claimant,                                  773553
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         OSCAR MAYER FOODS                               A N D
 
         CORPORATION,
 
                                                      R E V I E W
 
              Employer,
 
              Self-Insured,                        R E 0 P E N I N G
 
              Defendants.
 
                                                  D E C I S I 0 N
 
         
 
         
 
         5-2905
 
         
 
              Claimant entered into an agreement for settlement in January 
 
         of 1987.  Claimant filed a petition for review-reopening alleging 
 
         entitlement to additional weekly benefits on the basis that the 
 
         benefits had not been appropriately calculated at the time the 
 
         agreement for settlement was entered into.  As claimant did not 
 
         establish a change of condition, no further benefits were 
 
         awarded.
 
         
 
         5-1100; 1402.30
 
         
 
              Claimant failed to sustain his burden to show that he 
 
         received an injury which arose out of and in the course of his 
 
         employment.  Claimant alleged a cumulative injury in the form of 
 
         thoracic outlet syndrome but never ceased working as a result of 
 
         pain or disability, the condition was diagnosed some fourteen 
 
         months after claimant ceased working for defendant employer 
 
         during which time he had other employment and there were problems 
 
         with claimant's credibility.  No award of benefits was made.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            TED SCHEUERMANN,              :
 
                                          :
 
                 Claimant,                :      File Nos. 773553/872707
 
                                          :                872708
 
            vs.                           :
 
                                          :            A P P E A L
 
            OSCAR MAYER FOODS             :
 
            CORPORATION,                  :          D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed August 16, 1989 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Claimant pled injury dates of January 1, 1985 or May 28, 
 
            1985 for an apparent cumulative injury that he alleges 
 
            resulted in thoracic outlet syndrome.  Claimant has failed 
 
            to carry his burden to prove by a preponderance of the 
 
            evidence that his present thoracic outlet syndrome condition 
 
            is causally related to his work activity.  The thoracic 
 
            outlet syndrome was not diagnosed until some fourteen months 
 
            after claimant quit working for defendant.  In the interim, 
 
            claimant worked as a construction laborer, and with farm 
 
            work.  The medical evidence acknowledges that these jobs 
 
            would constitute possible intervening causes of his present 
 
            condition, that were likely to aggravate a pre-disposition 
 
            to thoracic outlet syndrome.  
 
            In addition, although the employer's records are replete 
 
            with notations of claimant's complaints of hand and finger 
 
            pain, there are no references to upper arm or shoulder pain 
 
            except one reference to biceps pain.  Claimant's testimony 
 
            that he experienced arm and shoulder pain frequently during 
 
            and shortly after working in the offal room is contradicted 
 
            by the employer's records.  It is reasonable to assume that 
 
            since claimant's hand and finger complaints were noted, that 
 
            if claimant had complained of shoulder and upper arm pain, 
 
            those complaints would have been noted as well.  Taken as a 
 
            whole, the medical evidence fails to sustain claimant's 
 
            burden of proof to show that his present thoracic outlet 
 
            syndrome condition is causally connected to his work 
 
            activity with this defendant.
 
                 Under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            (Iowa 1985), the date of injury is when the claimant, due to 
 
            pain or discomfort from the cumulative injury, leaves work.  
 
            McKeever provides a method of determining a date of injury 
 
            for cumulative injury cases.  Leaving work due to the pain 
 
            or discomfort from the cumulative injury is not necessarily 
 
            part of the definition of a cumulative injury, or a 
 
            prerequisite to a cumulative injury.  A claimant may suffer 
 
            a cumulative injury and never leave work due to the pain, 
 
            such as when the plant closes or some other event 
 
            intervenes.  In those cases, claimant has suffered a 
 
            cumulative injury even though another method of determining 
 
            a date of injury must be found.  See Koehler v. Morrison, 
 
            Lloyd and McConnel, Arbitration Decision, February 28, 1990. 
 
            Claimant has not failed to show a cumulative injury because 
 
            he was never compelled to leave work due to pain or 
 
            discomfort.  Claimant has failed to establish entitlement to 
 
            benefits for the alleged January 1, 1985 and May 28, 1985 
 
            injuries because he has not shown his present condition is 
 
            causally connected to his work.  
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Ste 201
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Ste 16
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2209
 
                                          Filed December 20, 1991
 
                                          BYRON K. ORTON
 
                                          DAD
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TED SCHEUERMANN,              :
 
                                          :
 
                 Claimant,                :    File Nos. 773553/872707
 
                                          :              872708
 
            vs.                           :
 
                                          :         A P P E A L
 
            OSCAR MAYER FOODS             :
 
            CORPORATION,                  :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            Affirmed deputy's denial of benefits, but clarified that 
 
            claimant failed to establish entitlement to benefits because 
 
            he had not carried his burden to show that his present 
 
            condition was causally connected to the work injury, not 
 
            because he had not suffered a cumulative injury.  A holding 
 
            by the deputy that claimant had not suffered a cumulative 
 
            injury because he was never compelled to leave work due to 
 
            pain was clarified.  Under McKeever, leaving work due to 
 
            pain is a method of establishing the date of injury for a 
 
            cumulative injury.  Other agency precedents establish that 
 
            where claimant suffers a cumulative injury but does not 
 
            leave work due to the pain, other factors can be used to 
 
            determine the date of injury.  Leaving work due to pain is 
 
            not an element of the definition of a cumulative injury 
 
            (such as a series of micro-traumas occurring over a period 
 
            of time), but rather a device to determine the date of 
 
            injury for a cumulative injury.  Here, claimant did suffer a 
 
            cumulative injury but failed to show causal connection.
 
            
 
            2209
 
            Appeal decision pointed out that leaving work due to pain in 
 
            a cumulative injury case under McKeever is an event that 
 
            determines the injury date.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER  
 
          ____________________________________________________________
 
            DAVID BAILEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 872710
 
            MOORHEAD CONSTRUCTION CO.,    :
 
            INC.,                         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUE
 
            
 
                 The issue on appeal is:  Whether claimant has proved 
 
            that he sustained an injury (heart attack) that arose out of 
 
            and in the course of his employment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 David Bailey is a 31-year-old unmarried carpenter.  
 
            Bailey completed high school, but has not received a diploma 
 
            due to a shortage of credits in English.  He stated that he 
 
            has no problems with reading, writing or arithmetic (exhibit 
 
            B, pages 3-5).
 
            
 
                 Bailey is a journeyman union carpenter who is currently 
 
            earning $13.50 per hour.  He has performed carpentry work 
 
            throughout most of his life (ex. B, pp. 6-14).
 
            
 
                 During the summer of 1987, Bailey was employed by 
 
            Moorhead Construction Company.  On August 6, 1987 he was 
 
            performing construction at the wastewater treatment plant at 
 
            Knoxville, Iowa.  Bailey described the day as part of an 
 
            unusually hot spell.  He stated that the temperature was 
 
            above 100 degrees on that day.  Claimant stated that the 
 
            crew had started work at 6:00 a.m. in order to avoid some of 
 
            the heat.  Claimant stated that during the first part of the 
 
            work day, he finished putting a new wooden roof on the 
 
            digester pit.  He described the work as consisting primarily 
 
            of nailing.  He stated that he did not consider it to be 
 
            heavy work.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Bailey testified that shortly after lunch, he went into 
 
            the digester pit itself, together with his supervisor Al 
 
            Marty.  Claimant stated that he worked sweeping wet sand 
 
            into piles so it could be shoveled into a bucket and lifted 
 
            out of the digester pit by a third person.  Claimant stated 
 
            that it was probably a little hotter in the pit where he was 
 
            working than it was outside (ex. B., pp. 21-22).  When 
 
            deposed, claimant stated that the work was not difficult for 
 
            him and that there were other things on the job which he had 
 
            done which were more difficult and more strenuous than the 
 
            sweeping (ex. B, pp. 22-23).  When testifying at hearing, 
 
            claimant stated that the activities he performed in the pit 
 
            were more strenuous than those which he had performed when 
 
            working outside.
 
            
 
                 Bailey stated that at approximately 2:00 or 2:30, he 
 
            started to experience sharp pains in his chest of a type 
 
            which he had never previously experienced.  He reported it 
 
            to his supervisor, climbed out of the pit and after resting, 
 
            the pain subsided somewhat.  Claimant related that it was 
 
            near the end of the day and that he did not do much during 
 
            the remainder of the work day.
 
            
 
                 Bailey stated that he went home after work and did 
 
            nothing.  He stated that he did not eat and that he felt 
 
            hot.  Bailey stated that he went to bed a little early and 
 
            slept with discomfort.  He stated that during the evening, 
 
            the pain came off and on.  He stated that pain awakened him 
 
            during the night.
 
            
 
                 Bailey stated that by the following morning, his pain 
 
            had worsened.  He reported to his supervisor and then went 
 
            to see a doctor at Mater Clinic in Knoxville.  He was 
 
            admitted to Knoxville Area Community Hospital and then 
 
            transferred by air ambulance to Mercy Hospital in Des Moines 
 
            (ex. F, pp. 14, 25).
 
            
 
                 Claimant was diagnosed as having an acute anterior wall 
 
            myocardial infarction.  Coronary angiography revealed that 
 
            his left anterior descending coronary artery was totally 
 
            occluded at the septal perforator branch.  Balloon 
 
            angioplasty was performed to open the blockage, but by the 
 
            time of discharge, the artery was again totally occluded at 
 
            the diagonal branch.  Claimant's primary treating physicians 
 
            were cardiologists L.A. Iannone, M.D., and William J. 
 
            Wickemeyer, M.D., (ex. 15).
 
            
 
                 Dr. Wickemeyer's deposition is in the record as exhibit 
 
            A.  Dr. Wickemeyer stated that claimant is afflicted with 
 
            coronary artery disease, but that his employment did not 
 
            cause the disease (ex. A., pp. 22-23).  Dr. Wickemeyer 
 
            described the physiological process of a myocardial 
 
            infarction and stated that it results from a series of 
 
            events (ex. A, pp. 24-27).  Dr. Wickemeyer expressed the 
 
            opinion that the entire pathophysiological process that 
 
            finally led to claimant's myocardial infarction had started 
 
            at the point of time when claimant experienced chest pains 
 
            while sweeping sand on August 6, 1987 (ex. A, p. 15).  Dr. 
 
            Wickemeyer expressed the opinion that the work which 
 
            claimant performed on August 6, 1987 was a substantial cause 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of the total occlusion and onset of myocardial infarction 
 
            that occurred during the morning of August 7, 1987 (ex. A, 
 
            p. 29).  When questioned whether the relationship between 
 
            the work was merely possible, rather than probable, Dr. 
 
            Wickemeyer stated that the cause and effect relationship was 
 
            probable (ex. A, p. 15).  Dr. Wickemeyer consistently 
 
            expressed the opinion that the work was a contributing 
 
            factor to the infarction (ex. A, pp. 14-15, 28-29; ex. F, p. 
 
            17).
 
            
 
                 Claimant was examined by Paul From, M.D., a specialist 
 
            in internal medicine.  Dr. From relied upon a history which 
 
            showed claimant's chest pain that began on August 6, 1987 to 
 
            have completely subsided after fifteen minutes of rest and 
 
            to not have returned until when he was sleeping during the 
 
            night.  Dr. From expressed the opinion that the myocardial 
 
            infarction was not directly related to claimant's employment 
 
            (ex. F).
 
            
 
                 Dr. Wickemeyer evaluated claimant's current functional 
 
            capacity as near normal, although he is restricted against 
 
            performing extremely strenuous physical labor and against 
 
            performing extremely heavy lifting or heavy labor under 
 
            extremes of temperature (ex. A, pp. 12, 16-18).  Claimant 
 
            testified that he has been able to resume the duties of a 
 
            union carpenter and perform the work to the satisfaction of 
 
            his employer.  Claimant stated that he does, however, 
 
            experience occasional chest pain when working hard.  He 
 
            stated that the pain goes away if he rests or reduces his 
 
            activity level.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Determining whether a heart attack superimposed upon a 
 
            preexisting circulatory or heart condition arose out of 
 
            employment is divided into two parts:  the legal test and 
 
            the medical test.  Under the legal test the law defines what 
 
            kind of exertion satisfies the test of arising out of the 
 
            employment.  The exertion may be physical   original.)
 
            
 
                 (Citations omitted.)
 
            
 
                    In the second situation compensation is allowed 
 
                 when the medical testimony shows an instance of 
 
                 unusually strenuous employment exertion, imposed 
 
                 upon a pre-existing diseased condition, results in 
 
                 a heart injury.
 
            
 
                 A third possible legal standard comes from language in 
 
            Sondag, 220 N.W.2d 903, and Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407, 409 (Iowa 1984).
 
            
 
                 This challenge appears to be tied to our reference 
 
                 in Sondag, 220 N.W.2d at 905, to the following 
 
                 observations expressed in 1A A. Larson, The Law of 
 
                 Workmen's Compensation section 38.64(c), at 7-145 
 
                 (1972):
 
            
 
                      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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            instant case is whether claimant has proved that one of the 
 
            standards of the legal test has been satisfied.
 
            
 
                 The first standard of the legal test is whether 
 
            claimant's work exertions were greater than exertions of 
 
            normal nonemployment life.  Claimant's uncontradicted but 
 
            uncorroborated testimony was that it was hot on the date of 
 
            alleged injury, August 6, 1987.  Claimant engaged in some 
 
            exertion before noon by nailing on a roof.  Claimant engaged 
 
            in some exertion after noon by sweeping sand and scooping 
 
            the sand into a bucket.  He was assisted by a coworker in 
 
            the task.  It is impossible to tell exactly how much sand he 
 
            swept other than to say the activity took one to two hours.  
 
            He did testify that it was not difficult work for him (ex. 
 
            B, pp. 23-24).  He also testified:
 
            
 
                 Q.  Sometimes when I clean out my garage, I sweep 
 
                 piles of dirt into big piles with a broom, and 
 
                 then I use a shovel to pick that up and put it 
 
                 into the garbage can.  Is that what you were 
 
                 doing, basically?
 
            
 
                 A.  Yes.
 
            
 
            (Transcript, p. 43)
 
            
 
                 The area in which the sweeping was done was about 50 
 
            feet in diameter.  Because claimant and a coworker would 
 
            sweep sand into a pile, scoop the sand into a bucket, and 
 
            another coworker would pull the bucket (5 gallon pail) out 
 
            of the pit, it is reasonable to assume the following:  The 
 
            pace of the activity was not rapid and the amount of sand 
 
            involved was not large.  Sweeping and shoveling material at 
 
            a nonrapid pace and in a nonlarge volume is not more 
 
            strenuous than normal nonemployment life.
 
            
 
                 Claimant's activity of nailing before lunch was not 
 
            heavy.  Claimant had lunch after the nailing activity.  The 
 
            exertions would probably be unrelated to claimant's angina 
 
            in the afternoon.  The exertion of nailing would have 
 
            subsided during claimant's lunch.
 
            
 
                 It is also noted that claimant offered no material 
 
            evidence as to what constitutes exertions of normal 
 
            nonemployment life of this claimant or any other person.  
 
            Normal nonemployment has some exertion.  Life is not 
 
            normally devoid of physical activity.  It cannot be said 
 
            from this record that claimant's work activities on August 
 
            6, 1987 exceeded exertions of normal nonemployment life.
 
            
 
                 Claimant has not proved that his exertions on August 6, 
 
            1987 were greater than the exertions of normal nonemployment 
 
            life.  Thus, claimant has not satisfied the first standard 
 
            of the legal test.
 
            
 
                 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.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 The second standard of the legal test is whether 
 
            claimant's work exertions were greater than normal work.  
 
            Claimant clearly has not proved this standard.  The 
 
            activities of August 6, 1987 that claimant described are 
 
            clearly consistent with normal carpentry type work.  In 
 
            addition, claimant testified that the work was not difficult 
 
            and no different than normal.  See Transcript, pp. 47 and 48 
 
            and joint exhibit B, (claimant's deposition) p. 23.
 
            
 
                 The third standard of the legal test is whether 
 
            claimant felt impelled to continue working after the onset 
 
            of a possible heart attack.  Claimant clearly has also not 
 
            proved this standard.  There was no testimony that claimant 
 
            was impelled to continue work.  Also, claimant testified 
 
            that he stopped work at the onset of pain and did little for 
 
            the rest of the work day.  See transcript, pp. 43 and joint 
 
            exhibit B, pp. 23-24.
 
            
 
                 Claimant has not proved any of the standards of the 
 
            legal test.  Claimant has not met the legal test.  
 
            Claimant's heart attack did not arise out of and in the 
 
            course of claimant's employment.
 
            
 
                 The second issue to be determined in deciding the 
 
            instant case is whether claimant has proved by medical 
 
            evidence that medical test has been satisfied.  The claimant 
 
            must prove that the work exertions in fact caused the heart 
 
            attack.
 
            
 
                 Claimant must satisfy both the legal and the medical 
 
            tests.  Because claimant has not satisfied the legal test 
 
            consideration of the medical test will be for discussion 
 
            purposes only.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. Wickemeyer's opinions will be relied upon.  He was 
 
            better qualified than Dr. From to give opinions in this 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            case.  Dr. From was not a cardiologist, only evaluated 
 
            claimant, and did not treat claimant.  Dr. Wickemeyer was a 
 
            cardiologist who treated claimant.  Also, Dr. Wickemeyer's 
 
            explanation of the possible angina attack and subsequent 
 
            myocardial infarction were consistent with other facts in 
 
            this case.  It was Dr. Wickemeyer's opinion that claimant's 
 
            work was a substantial and probable cause of the infarction.  
 
            Claimant satisfied the medical test in this case.
 
            
 
                 In summary, claimant met the medical test but not the 
 
            legal test for proving that his myocardial infarction arose 
 
            out of and in the course of his employment.  Claimant's 
 
            myocardial infarction did not arise out of and in the course 
 
            of his employment.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
                 That claimant shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Neil A. Barrick
 
            Attorney at Law
 
            7025 Hickman Rd., Ste 7
 
            Des Moines, Iowa 50322
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100; 1108.10; 2202
 
                                                 Filed July 27, 1992
 
                                                 Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            DAVID BAILEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 872710
 
            MOORHEAD CONSTRUCTION CO.,    :
 
            INC.,                         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            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.
 
            In this case, claimant was a carpenter.  On a hot day he did 
 
            some mailing on a roof.  After lunch he swept wet sand and 
 
            scooped it into a bucket for approximately 1-2 hours.  The 
 
            pace of work was not rapid and volume of sand not great.  He 
 
            stopped exertion at onset of symptoms.  Claimant failed to 
 
            prove any of the three standards of the legal test.
 
            Testimony of treating cardiologist who opined that work was 
 
            probable cause of heart attack met the medical test.
 
            Claimant did not prove his heart attack arose out of and in 
 
            the course of his employment.
 
            
 
 
            
 
 
 
      
 
           
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID BAILEY,
 
         
 
              Claimant,                                 File No. 872710
 
         
 
         vs.                                         A R B I T R A T I O 
 
         N
 
         
 
         MOORHEAD CONSTRUCTION CO.,                     D E C I S I O N
 
         INC.,
 
         
 
              Employer,                                    F I L E D
 
         
 
         and                                              JAN 18 1990
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,                INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by David Bailey 
 
         against his former employer, Moorhead Construction Company, Inc., 
 
         and its insurance carrier, Liberty Mutual Insurance Company.  The 
 
         case was heard and fully submitted at Des Moines, Iowa on May 9, 
 
         1989.  The record in the proceeding consists of jointly offered 
 
         exhibits A, B, C, D, E, F (5 subparts) and G.  The record also 
 
         contains claimant's testimony.
 
         
 
                                     ISSUES
 
         
 
              Claimant alleges that his myocardial infarction, which was 
 
         diagnosed on August 7, 1987, is an injury which arose out of and 
 
         in the course of his employment.  He seeks compensation for 
 
         healing period, permanent partial disability, and payment of 
 
         medical expenses.  The issues identified for determination are 
 
         whether the heart attack is an injury which arose out of and in 
 
         the course of employment.  In the event that the finding on that 
 
         initial issue is favorable to claimant, the remaining issues to 
 
         be determined are claimant's entitlement to healing period 
 
         compensation, entitlement to permanent partial disability 
 
         compensation, and payment of expenses incurred in obtaining 
 
         medical treatment under Iowa Code section 85.27.
 
         
 
                          SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
                                                
 
                                                         
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              David Bailey is a 31-year-old unmarried carpenter.  Bailey 
 
         completed high school, but has not received a diploma due to a 
 
         shortage of credits in English.  He stated that he has no 
 
         problems with reading, writing or arithmetic (exhibit B, pages 
 
         3-5).
 
         
 
              Bailey is a journeyman union carpenter who is currently 
 
         earning $13.50 per hour.  He has performed carpentry work 
 
         throughout most of his life (exhibit B, pages 6-14).
 
         
 
              During the summer of 1987, Bailey was employed by Moorhead 
 
         Construction Company.  On August 6, 1987, he was performing 
 
         construction at the wastewater treatment plant at Knoxville, 
 
         Iowa. Bailey described the day as part of an unusually hot spell.  
 
         He stated that the temperature was above 100 degrees on that day. 
 
         Claimant stated that the crew had started work at 6:00 a.m. in 
 
         order to avoid some of the heat.  Claimant stated that during the 
 
         first part of the work day, he finished putting a new wooden roof 
 
         on the digester pit.  He described the work as consisting 
 
         primarily of nailing.  He stated that he did not consider it to 
 
         be heavy work.
 
         
 
              Bailey testified that shortly after lunch, he went into the 
 
         digester pit itself, together with his supervisor Al Marty. 
 
         Claimant stated that he worked sweeping wet sand into piles so it 
 
         could be shoveled into a bucket and lifted out of the digester 
 
         pit by a third person.  Claimant stated that it was probably a 
 
         little hotter in the pit where he was working than it was outside 
 
         (exhibit B, pages 21 and 22).  When deposed, claimant stated that 
 
         the work was not difficult.for him and that there were other 
 
         things on the job which he had done which were more difficult and 
 
         more strenuous than the sweeping (exhibit B, pages 22 and 23). 
 
         When testifying at hearing, claimant stated that the activities 
 
         he performed in the pit were more strenuous than those which he 
 
         had performed when working outside.
 
         
 
              Bailey stated that at approximately 2:00 or 2:30, he started 
 
         to experience sharp pains in his chest of a type which he had 
 
         never previously experienced.  He reported it to his supervisor, 
 
         climbed out of the pit and after resting, the pain subsided 
 
         somewhat.  Claimant related that it was near the end of the day 
 
         and that he did not do much during the remainder of the work 
 
         day.
 
         
 
              Bailey stated that he went home after work and did nothing. 
 
         He stated that he did not eat and that he felt hot.  Bailey 
 
         stated that he went to bed a little early and slept with 
 
         discomfort.  He stated that during the evening, the pain came off 
 
         and on.  He stated that pain awakened him during the night.
 
         
 
              Bailey stated that by the following morning, his pain had 
 
                                                
 
                                                         
 
         worsened.  He reported to his supervisor and then went to see a 
 
         doctor at Mater Clinic in Knoxville.  He was admitted to 
 
         Knoxville Area Community Hospital and then transferred by air 
 
         ambulance to Mercy Hospital in Des Moines (exhibit F, pages 14 
 
         and 25).
 
         
 
              Claimant was diagnosed as having an acute anterior wall 
 
         myocardial infarction.  Coronary angiography revealed that his 
 
         left anterior descending coronary artery was totally occluded at 
 
         the septal perforator branch.  Balloon angioplasty was performed 
 
         to open the blockage, but by the time of discharge, the artery 
 
         was again totally occluded at the diagonal branch.  Claimant's 
 
         primary treating physicians were cardiologists L. A. Iannone, 
 
         M.D., and William J. Wickemeyer, M.D.  (exhibit 15).
 
         
 
              Dr. Wickemeyer's deposition is in the record as exhibit A. 
 
         Dr. Wickemeyer stated that claimant is afflicted with coronary 
 
         artery disease, but that his employment did not cause the disease 
 
         (exhibit A, pages 22 and 23).  Dr. Wickemeyer described the 
 
         physiological process of a myocardial infarction and stated that 
 
         it results from a series of events (exhibit A, pages 24-27).  Dr. 
 
         Wickemeyer expressed the opinion that the entire 
 
         pathophysiological process that finally led to claimant's 
 
         myocardial infarction had started at the point of time when 
 
         claimant experienced chest pains while sweeping sand on August 6, 
 
         1987 (exhibit A, page 15).  Dr. Wickemeyer expressed the opinion 
 
         that the work which claimant performed on August 6, 1987 was a 
 
         substantial cause of the total occlusion and onset of myocardial 
 
         infarction that occurred during the morning of August 7, 1987 
 
         (exhibit A, page 29).  When questioned whether the relationship 
 
         between the work was merely possible, rather than probable, Dr. 
 
         Wickemeyer stated that the cause and effect relationship was 
 
         probable (exhibit A, page 15).  Dr. Wickemeyer consistently 
 
         expressed the opinion that the work was a contributing factor to 
 
         the infarction (exhibit A, pages 14 and 15, 28 and 29; exhibit F, 
 
         page 17).
 
         
 
              Claimant was examined by Paul From, M.D., a specialist in 
 
         internal medicine.  Dr. From relied upon a history which showed 
 
         claimant's chest pain that began on August 6, 1987 to have 
 
         completely subsided after fifteen minutes of rest and to not have 
 
         returned until when he was sleeping during the night.  Dr. From 
 
         expressed the opinion that the myocardial infarction was not 
 
         directly related to claimant's employment (exhibit F).
 
         
 
              Dr. Wickemeyer evaluated claimant's current functional 
 
         capacity as near normal, although he is restricted against 
 
         performing extremely strenuous physical labor and against 
 
         performing extremely heavy lifting or heavy labor under extremes 
 
         of temperature (exhibit A, pages 12 and 16-18).  Claimant 
 
         testified that he has been able to resume the duties of a union 
 
         carpenter and perform the work to the satisfaction of his 
 
         employer.  Claimant stated that he does, however, experience 
 
         occasional chest pain when working hard.  He stated that the pain 
 
         goes away if he rests or reduces his activity level.
 
                                                
 
                                                         
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on August 6, 1987 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "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).
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a causal relationship between the employment and the 
 
         injury.  Sheerin v. Holin Co., 380 N.W.2d 4151 417 (Iowa 1986).
 
         
 
              Claimant's testimony regarding the events which occurred on 
 
         August 6 and 7, 1987 stands largely uncontradicted, except for 
 
         some minor variances between his deposition testimony and the 
 
         testimony given at hearing.  Claimant's appearance and demeanor 
 
         were observed as he testified and he is found to be a credible 
 
         witness.  In particular, it is found that August 6, 1987 was an 
 
         unusually hot day with the temperature in the range of 100 
 
         degrees and that it was no cooler inside the digester where 
 
         claimant was sweeping.  It is further found that claimant's chest 
 
         pains subsided, but did not completely go away, after he rested 
 
         on August 6, 1987, that the pain continued through the night and 
 
         that it worsened during the morning of August 7, 1987.
 
         
 
              All the evidence from Drs. Wickemeyer and From was 
 
         considered.  The opinions and assessment of the case made by Dr. 
 
         Wickemeyer is accepted where his opinions differ from those of 
 
         Dr. From.  Dr. Wickemeyer is a board-certified cardiologist, 
 
         while Dr. From is only a specialist in internal medicine.  Dr. 
 
         Wickemeyer practices exclusively in the field of cardiology.  Dr. 
 
         Wickemeyer is determined to have the greater level of expertise 
 
         in the field of cardiology.  Further, Dr. Wickemeyer was one of 
 
         claimant's treating physicians and is therefore determined to 
 
         have a greater degree of familiarity with this individual case.  
 
         It is therefore determined that Dr. Wickemeyer's opinion 
 
         concerning the causes of the myocardial infarction is correct.  
 
         The work which claimant performed on August 6, 1987 is found to 
 
         be a substantial factor in producing the myocardial infarction.  
 
         The physicians agree, however, in that the underlying cause of 
 
         the infarction was the coronary artery disease which preexisted 
 
         August 6, 1987 and which was not caused by claimant's employment 
 
         as a carpenter.
 
         
 
              When the employee is afflicted with preexisting coronary 
 
         artery disease, or any other heart condition, there are two 
 
         possible methods of establishing compensability.  If the employee 
 
         meets either of the two, he is entitled to recover.
 
         
 
              The first route to compensability is when the employment 
 
         provides a level of exertion that is greater than that of 
 
         nonemployment life.  The comparison is with the exertion of 
 
         normal nonemployment life of the employee or any other person.  
 
         The second situation where compensation can be allowed is when 
 
         the evidence shows an instance of unusually strenuous employment 
 
         exertion.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 
 
                                                
 
                                                         
 
         1974).  When claimant's testimony is considered, including the 
 
         apparent discrepancy between the testimony he gave at hearing and 
 
         the testimony he gave when deposed regarding the level of 
 
         exertion required to sweep the sand, it is determined that 
 
         sweeping sand was not unusually strenuous in comparison to the 
 
         normal duties of his employment as a carpenter.  While the 
 
         activity was not one of his normal daily activities as a 
 
         carpenter, it was not particularly strenuous.  Claimant stated 
 
         that putting the cover on the digester was not particularly 
 
         strenuous and that it consisted primarily of nailing.  Claimant 
 
         stated that the sweeping was more strenuous than the nailing had 
 
         been, but such does not necessarily make it particularly 
 
         strenuous.  Claimant also stated that he had done other things on 
 
         that job which were more difficult than sweeping the sand 
 
         (exhibit B, page 23).  It is therefore determined that claimant 
 
         has failed to prove that there was any instance of unusually 
 
         strenuous employment exertion which precipitated the myocardial 
 
         infarction.
 
         
 
              The more plausible theory of recovery is that the employment 
 
         exertion was greater than that of nonemployment life.  The 
 
         standard is not one which is easily defined.  There are some 
 
         individuals who engage in quite strenuous nonemployment 
 
         activities.  These individuals play tennis, run in marathons, 
 
         remodel their homes, cut firewood, and otherwise lead a quite 
 
         vigorous lifestyle.  At the other extreme, there are individuals 
 
         who are quite sedentary in their nonemployment life.  They live 
 
         in an apartment and basically perform nothing more strenuous than 
 
         walking between the front door of their apartment and the door of 
 
         their car while carrying a bag full of groceries.  It is the 
 
         undersigned's legal opinion that the standard for compensability 
 
         in heart attack cases is neither of the two foregoing examples. 
 
         The correct standard is one which includes activities such as 
 
         mowing one's lawn, shoveling snow, carrying several bags of 
 
         groceries, making minor home repairs, riding a bicycle, 
 
         gardening, lifting young children, going for walks, swimming, 
 
         housekeeping and other activities which provide a mild to 
 
         moderate degree of physical exertion.  An important factor in the 
 
         analysis is the rate or speed at which the activities are 
 
         performed, whether there is any limited time in which to complete 
 
         the activity, and the conditions under which the activity is 
 
         performed.  For example, the level of exertion for mowing one's 
 
         own lawn is quite different if the person pushes the mower at a 
 
         leisurely pace on a 70 degree day as compared to pushing that 
 
         same mower as rapidly as the person is able to move it on a 100 
 
         degree day.  The undersigned considers the first example to be 
 
         within the range of normal nonemployment life exertions while the 
 
         latter exceeds the exertions of normal nonemployment life.  The 
 
         key word is "normal."
 
         
 
              The evidence in this case shows David Bailey to have been 
 
         working in approximately 100 degree heat, sweeping wet sand with 
 
         a push broom.  While Bailey was working in a hot environment, 
 
         there is no evidence in the record which shows him to have been 
 
         pressed to work quickly.  The evidence does show that the work 
 
                                                
 
                                                         
 
         crew started early in the day in order to avoid exposure to the 
 
         most extreme heat.  The evidence also shows that when his 
 
         symptoms began, he was allowed to cease actual normal work.  
 
         Those factors indicate the absence of any particular pressure for 
 
         claimant to work quickly.  The evidence shows that claimant was 
 
         working with his supervisor and that the sand was shoveled into a 
 
         bucket which was then hauled up out of the pit by a laborer.  
 
         Even if there were two or three buckets being used, it would not 
 
         require a substantial degree of physical exertion to sweep up 
 
         enough piles of sand in order to keep up with the rate at which 
 
         empty buckets could be provided for filling.  Sweeping sand, in 
 
         and of itself, is not considered by the undersigned to be an 
 
         inherently strenuous activity.  It is therefore determined that 
 
         the stress or exertion which precipitated David Bailey's heart 
 
         attack was exertion which was within the range of the exertions 
 
         of normal nonemployment life.  It is therefore determined that 
 
         David Bailey has failed to prove, by a preponderance of the 
 
         evidence, that his heart attack is an injury which arose out his 
 
         employment with Moorhead Construction Company, Inc.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  On August 6, 1987, David Bailey was a resident of the 
 
         state of Iowa employed by Moorhead Construction Company, Inc., at 
 
         Knoxville, Iowa.
 
         
 
              2.  On August 6, 1987, David Bailey performed the duties of 
 
         a carpenter for the employer.  The duties he performed on that 
 
         day were not unusually strenuous when considered in relation to 
 
         the normal duties of his employment and occupation.
 
         
 
              3.  The duties which David Bailey performed on August 6, 
 
         1987 did not provide a greater level of exertion than the 
 
         exertions of normal nonemployment life.
 
         
 
              4.  The exertions of the work activities which David Bailey 
 
         performed on August 6, 1987 did precipitate angina and the 
 
         myocardial infarction which was diagnosed on August 7, 1987 when 
 
         claimant sought medical treatment.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  David Bailey has failed to prove, by a preponderance of 
 
         the evidence, that the myocardial infarction which was diagnosed 
 
         on August 7, 1987 was an injury which arose out of his employment 
 
         with Moorhead Construction Company, Inc.
 
         
 
                                      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 18th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Neil A. Barrick
 
         Attorney at Law
 
         7025 Hickman Road, Suite 7
 
         Des Moines, Iowa  50322
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.10, 1402.30, 2202
 
                                            Filed January 18, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID BAILEY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 872710
 
         MOORHEAD CONSTRUCTION CO.,
 
         INC.,                                     A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.10, 1402.30, 2202
 
         
 
              Claimant, a 31-year-old journeyman carpenter, experienced 
 
         the onset of angina while working and was diagnosed on the 
 
         following day with having a myocardial infarction.  Claimant had 
 
         preexisting coronary artery disease and it was held that the 
 
         employment exertion precipitated the heart attack.  It was also 
 
         held, however, that the employment exertion on the day when 
 
         angina started was not unusually strenuous in comparison to the 
 
         normal exertion of the employment and that it was also not of 
 
         greater magnitude than the normal exertions of normal 
 
         nonemployment life. It was held that the heart attack did not 
 
         arise out of the employment.
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                         :
 
         JOSEPHINE GAETA,                :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 872727
 
         ELKS LODGE,                     :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         NEW HAMPSHIRE INSURANCE CO.,    :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         April 8, 1991 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William J. Bribriesco
 
         Attorney at Law
 
         2407 18th St., Ste 202
 
         Bettendorf, Iowa 52722
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         8th Floor Fleming Bldg.
 
         2l8 Sixth Ave.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 29, 1992
 
                                          BYRON K. ORTON
 
                                          DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            JOSEPHINE GAETA,                :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 872727
 
            ELKS LODGE,                     :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            NEW HAMPSHIRE INSURANCE CO.,    :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 8, 
 
            1991.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOSEPHINE GAETA,              :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 872727
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            ELK LODGE,                    :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            NEW HAMPSHIRE INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the April 25, 
 
            1988 petition of claimant Josephine Gaeta for benefits under 
 
            the Iowa Workers' Compensation Act against employer Elk 
 
            Lodge and its insurance carrier, New Hampshire Insurance 
 
            Company.  Claimant alleges that she suffered cancer of the 
 
            larynx as the result of exposure to environmental tobacco 
 
            smoke ("ETS") and cooking fumes in the course of her 
 
            employment as a cook.
 
            
 
                 The cause came on for hearing in Des Moines, Iowa, on 
 
            October 10, 1990.  The record consists of claimant's 
 
            exhibits 1 through 18 and defendants' exhibits I, II, VI and 
 
            D1 through D7, along with the testimony of claimant, Vincent 
 
            Gaeta and Ed Halligan.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between Josephine Gaeta and Elk Lodge 
 
            on September 14, 1987.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment with Elk Lodge;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the injury and any subsequent temporary or permanent 
 
            disability;
 
            
 
                 3.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Josephine Gaeta, 61 years of age at hearing, worked as 
 
            a cook for Elk Lodge from approximately 1971 until September 
 
            12, 1987.  Her duties, described as "chief cook and bottle 
 
            washer," also included answering the phone, ordering 
 
            groceries, and acting as manager and waitress.  She 
 
            previously worked for a department store and in her father's 
 
            businesses, an open fruit market and a restaurant.
 
            
 
                 Claimant cooked with a stove, grill and two fryers.  
 
            About six or seven years before her carcinoma was 
 
            discovered, Elk Lodge installed a gas and lava rock grill 
 
            (frequently referred to by claimant as a "charcoal" grill) 
 
            used to blacken steaks on Friday and Saturday nights.  The 
 
            grill was covered by a ventilation hood.
 
            
 
                 Claimant was born and lived in the city of Pittsburgh 
 
            until she was about 17 or 18 years old.  Later, her father 
 
            moved to Iowa and opened a restaurant where claimant cooked 
 
            and waited tables for 11 years prior to accepting employment 
 
            with Elk Lodge.  Customers were allowed to smoke and 
 
            claimant's father regularly smoked cigars in the restaurant.  
 
            Former Elk Lodge manager Ed Halligan was familiar with the 
 
            restaurant and described it as smoky.
 
            
 
                 Claimant has never smoked cigarettes.  Her husband 
 
            Vincent and children also have never smoked.  The Elk Lodge 
 
            permitted tobacco smoking by restaurant patrons.  Smoke at 
 
            times was described by claimant as thick enough to cut with 
 
            a knife, and she was from time to time directly exposed.  By 
 
            history, she also has frequently played bingo at the Elk 
 
            Lodge and a parochial school and has been a weekly bowler, 
 
            all in very smoky environments.
 
            
 
                 Claimant presented to Guy Ernest McFarland, M.D., 
 
            suffering from hoarseness, on August 31, 1987.  Dr. 
 
            McFarland is an ear, nose and throat specialist, board 
 
            certified by the American Board of Otolaryngology.  Biopsy 
 
            of the larynx found squamous cell carcinoma and 
 
            pre-cancerous changes in the left vocal cord, leading to a 
 
            total laryngectomy on September 17, 1987.
 
            
 
                 Although recuperation was difficult, claimant has now 
 
            developed excellent diction through self-taught esophageal 
 
            speech and has returned to employment elsewhere.  However, 
 
            she is restricted against working in smoky environments and 
 
            does suffer a degree of disability resulting directly from 
 
            the laryngectomy.
 
            
 
                 The fighting issue is whether exposure to environmental 
 
            tobacco smoke and cooking fumes at Elk Lodge caused cancer 
 
            of the larynx.  Two experts have offered opinions on this 
 
            issue:  Dr. McFarland and John P. Bederka, Jr., Ph.D.
 
            
 
                 Dr. McFarland, the treating surgeon, testified by 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            deposition on December 9, 1988.  Based upon his examination, 
 
            the biopsy and subsequent surgery and follow-up visits, and 
 
            based further upon his education and experience, Dr. 
 
            McFarland opined within a reasonable degree of medical 
 
            certainty that cancer of the larynx is always associated 
 
            with smoking and that claimant's exposure to smoke at work 
 
            directly caused her cancer.  Although noting that the 
 
            medical literature does not link charcoal smoke to cancer 
 
            except by suspicion, it was still his belief that claimant's 
 
            cancer was caused by a combination of charcoal smoke and 
 
            cigarette smoke.  Dr. McFarland specified that claimant's 
 
            only association with smoke was at work because nobody in 
 
            her home was a smoker.
 
            
 
                 There are some serious deficiencies with respect to the 
 
            history upon which Dr. McFarland based his opinion.  He 
 
            expressed some confusion as to whether claimant had been 
 
            exposed at work for 30 years as opposed to 16 or 18.  He 
 
            believed that claimant cooked over a charcoal fire for 35-50 
 
            hours per week, whereas she actually worked with a gas-fired 
 
            lava rock grill for only a few hours per week (from 6:00 to 
 
            9:00 p.m. twice a week, or six hours).  The record shows 
 
            that Dr. McFarland was unaware that claimant also exposed 
 
            herself to smoky bingo parlors and bowling alleys, and fails 
 
            to show that he knew she had worked for years in her 
 
            father's smoky restaurant and hailed from Pittsburgh, where 
 
            she was exposed to serious air pollution until age 17 or 18.
 
            
 
                 Dr. Bederka testified by deposition on March 30, 1990.  
 
            He received his Ph.D. in pharmacology from the Medical 
 
            College of Virginia in 1967 and was a post-doctoral trainee 
 
            in neuropharmacology at the University of Minnesota in 1967 
 
            and 1968.  He is currently director of Tox-I-Cull, 
 
            Associates, work his curriculum vitae indicates is involved 
 
            largely in the field of industrial toxicology.  He also acts 
 
            as an independent contractor for Triodyne, Inc., a concern 
 
            apparently involved largely in providing expert forensic 
 
            testimony.
 
            
 
                 While Dr. Bederka is not a medical practitioner as is 
 
            Dr. McFarland, his credentials are impressive (for example, 
 
            as section head, toxicology-pharmacometrics-clinical 
 
            pathology at the Abraham Lincoln School of Medicine, 
 
            University of Illinois Medical Center from 1976-1983), and 
 
            he appears to have devoted much more of his career to this 
 
            particular area of expertise than has Dr. McFarland.  Dr. 
 
            Bederka's familiarity with the literature seems on the 
 
            present record to be greater, and his testimony as to 
 
            causation is generally found more comprehensive and 
 
            convincing to this observer.  Nonetheless, it is 
 
            disconcerting that on redirect examination Dr. Bederka 
 
            denied familiarity with the expression "hired gun," an 
 
            unusual degree of naivete for a man who essentially makes 
 
            his living as a professional expert witness.
 
            
 
                 Dr. Bederka has focused largely on toxicology as well 
 
            as pharmacology over the last 16-18 years.  He noted that 
 
            sufferers of laryngeal cancer are commonly but not 
 
            exclusively tobacco smokers.  He suggested that one who 
 
            smokes 40-50 cigarettes a day may have a 15-fold greater 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            chance of getting cancer of the larynx than a non-smoker, 
 
            but that this decreases to 10-fold at pack or two a day, 
 
            5-fold at half a pack to one pack per day, down to little or 
 
            no relationship with consumption of only a few cigarettes 
 
            per day.  It was his further view that individuals exposed 
 
            to ETS commonly are exposed to tobacco levels more 
 
            characteristic of those smoking only a few cigarettes per 
 
            day.
 
            
 
                 In particular, Dr. Bederka testified that there is 
 
            typically a latency period of from perhaps 30-50 years from 
 
            exposure to a carcinogen and the development of cancer.  He 
 
            points not only to claimant's experience working for her 
 
            father, but to exposure to the air in Pittsburgh, which was 
 
            then apparently heavily marked with a carcinogen known as 
 
            benzapyrene (BaP).  BaP is used commonly as a marker 
 
            carcinogen for various kinds of combustion-associated 
 
            phenomena.  He noted that claimant should have very little 
 
            exposure to fumes from the gas grill because heated gases 
 
            rise quickly and the grill was fitted with an overhead 
 
            exhaust hood.
 
            
 
                 Dr. Bederka specified that the literature does not show 
 
            smoking to be the only cause of laryngeal cancer.  This is 
 
            accepted as fact because Dr. Bederka's familiarity with the 
 
            literature appears much greater on this record.
 
            
 
                 Asked specifically, Dr. Bederka opined that neither 
 
            environmental tobacco smoke nor cooking fumes caused or 
 
            contributed to claimant's condition.
 
            
 
                 Dr. Bederka cited a 1986 surgeon general's report 
 
            entitled "The Health Consequences of Involuntarily Smoking" 
 
            as concluding that at present there was insufficient data to 
 
            adequately evaluate the role of involuntary smoking in adult 
 
            cancers other than carcinoma of the lung.  Further, he cited 
 
            a 1986 report on passive smoking by the Board of 
 
            Environmental Studies and Toxicology by the National 
 
            Research Council (established by the National Academy of 
 
            Sciences) as concluding there was no consistent evidence at 
 
            present of any increased risk of ETS exposure for cancers 
 
            other than lung cancer.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between claimant and Elk Lodge when she 
 
            developed carcinoma of the larynx.
 
            
 
                 However, it remains claimant's burden of proof to 
 
            establish by a preponderance of the evidence that this 
 
            condition arose out of and in the course of that employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976).  The words "arising out of" refer to the course or 
 
            source of the injury.  McClure v. Union, et al., Counties, 
 
            188 N.W.2d 283 (Iowa 1971).  This requirement is satisfied 
 
            by showing the existence of a causal relationship between 
 
            the employment and the injury.  Sheerin v. Holin Co., 380 
 
            N.W.2d 415 (Iowa 1986).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            14, 1987 is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The crucial issue presented here is peculiarly within 
 
            the province of expert testimony.  With all due respect to 
 
            Dr. McFarland, it cannot be said that his opinion 
 
            constitutes a preponderance of the evidence on this point 
 
            when weighed against the contrary opinion of Dr. Bederka.  
 
            The history upon which Dr. McFarland based his opinion is, 
 
            as has been seen, defective in several respects.  In 
 
            particular, he mistakenly believed that claimant cooked over 
 
            a charcoal grill and for 35-50 hours per week, rather than 6 
 
            hours on a gas/lava rock grill, and that she was not exposed 
 
            to ETS except at work, which ignores substantial exposure 
 
            while bowling and playing bingo.  While combustion products 
 
            from propane or natural gas and meat juices dripping on hot 
 
            lava rock may well be harmful, it would be unduly 
 
            speculative to so find in the absence of specific evidence.  
 
            Dr. McFarland has not addressed the significant question of 
 
            whether claimant's carcinoma could have developed in only 16 
 
            years, as opposed to perhaps 30-50 years.  He has not been 
 
            shown to have factored claimant's substantial history of 
 
            living in Pittsburgh and working in her father's smoky 
 
            restaurant into his opinion.  Dr. Bederka, more familiar 
 
            with the literature and directly involved in the field of 
 
            toxicology as a recognized expert (even though not a medical 
 
            practitioner), convincingly reports that the causal 
 
            relationship between environmental tobacco smoke and cancer 
 
            of the larynx has not been demonstrated, even though it has 
 
            been studied.
 
            
 
                 For the reasons stated, it is held that claimant has 
 
            failed to meet her burden of proof in establishing that she 
 
            sustained an injury arising out of, in the course of and 
 
            causally related to employment with Elk Lodge as she 
 
            alleges.  Other issues are accordingly rendered moot.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William J. Bribriesco
 
            Attorney at Law
 
            2407 18th Street, Suite 202
 
            Bettendorf, Iowa  52722
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            803 Fleming Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.30; 2205
 
                           Filed April 8, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOSEPHINE GAETA,              :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 872727
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            ELK LODGE,                    :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            NEW HAMPSHIRE INSURANCE CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.30; 2205
 
            Claimant failed to prove cancer of the larynx was caused by 
 
            exposure to envirnomental tobacco smoke or cooking fumes at 
 
            work.  Opinion of treating physician did not outweigh 
 
            contrary opinion of pharmacology Ph.D. where the former's 
 
            history was afflicted with error and the latter (basically a 
 
            professional witness) was more familiar with the literature 
 
            and devoted much more time to toxicology.