Page 1 before the iowa industrial commissioner ____________________________________________________________ : KATHERINE M. MUNHOFEN, : : File No. 872728 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SCHMIT INDUSTRIES, INC., : : Employer, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Katherine M. Munhofen, claimant, against Schmit Industries, Inc., uninsured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on February 26, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on July 24, 1991, in Sioux City, Iowa. The record in this case consists of claimant's exhibits 1 through 15 and testimony from claimant and Pat Luse, B.S., D.C., F.A.C.O. issues Pursuant to the prehearing report and order dated July 24, 1991, the parties have submitted the following issues for resolution: 1. Whether claimant sustained an injury on February 26, 1988, which arose out of and in the course of employment with employer; 2. Whether the alleged injury is a cause of temporary and permanent disability; 3. The extent of entitlement to weekly compensation for temporary total disability or healing period and permanent disability, if any; 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27; and, 5. Whether a penalty should be imposed pursuant to Iowa Code section 86.13. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made and the evidence contained in the exhibits herein and makes the following findings: Claimant was born on January 17, 1951 and completed the Page 2 eleventh grade at school. She worked at various times as a waitress, salesclerk and cashier. In October 1986, she went to work at Winn-A-Bingo in Sloan, Iowa as a cashier. The operation of this casino was taken over by Schmit Industries in January 1988. On February 26, 1988, while handling boxes of quarters weighing between 25-30 pounds, claimant felt a popping sensation in her back. She testified that she reported the incident to her supervisor. She was able to work despite pain and discomfort in her back until March 21, 1988, when she experienced severe spasms and was unable to get out of bed or walk. She was treated by John Zortman, chiropractor, until June 1988, at which time he released her for light work activity. Claimant testified that when she presented a work release to her supervisor at Schmit Industries in June 1988 and she was told that they had no work to accommodate her restrictions. In January 1989, she took a waitress job for three weeks and a part-time barmaid job for eight weeks. She received unemployment compensation benefits from April through September 1988. On May 15, 1991, she obtained employment as a waitress working 32 hours per week. She is still employed in that capacity. Medical evidence reveals that claimant was seen by Dr. Zortman on March 29, 1988, with complaints of back pain. An examination revealed, among other findings, decreased range of motion. Dr. Zortman diagnosed lumbar intervertebral disc placement at the level of L5-Sl (Exhibit l). On April 20, 1988, claimant was examined by Horst C. Blume, M.D. Dr. Blume requested a CT scan of the lumbar spine. This was performed on April 22, 1988 and revealed a large right-sided posterior intervertebral disc herniation at L5/Sl with minimal posterior central bulging of the disc at L4/5 (Exs. 4-5). Claimant was reexamined by Dr. Zortman on May 1, 1989. Dr. Zortman reported that he found no disability as a result of his examination (Ex. 3). Claimant had an independent medical examination by Dr. Luse on October 31, 1989. Her complaints were referable to low back pain with radiation into the right leg and tingling and numbness in that leg. A physical, orthopedic and neurological examination was conducted and x-rays taken of the lumbar spine. A diagnosis of "chronic lumbar strain/sprain with associated myositis and neuralgia and suspected L5 disc involvement" was made. Dr. Luse gave claimant a five percent body as a whole impairment rating and restricted her from frequent bending, lifting more than 20 pounds and her repetitive motion activities involving her back. He then recommended an MRI examination (Ex. 6). Subsequently, Dr. Luse reviewed the results of the CT scan taken on April 22, 1988. Based on the scan's result, Dr. Luse increased claimant's impairment rating an additional seven percent (Ex. 7). On April 24, 1991, Dr. Luse reevaluated claimant and found additional degeneration. He recommended a rehabilitation program with conservative therapy (Ex. A). Page 3 Dr. Luse testified that, in his medical opinion, claimant's work injury caused her lumbar disc syndrome. He stated that, at this time, he does not recommend surgery but does recommend conservative therapy. conclusions of law The first issue to be determined is whether claimant sustained a work-related injury on February 26, 1988, and whether such injury caused temporary and permanent disability. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on February 26, 1988, which arose out of and in the course of her 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 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); McClure v. Union, Et Al., Counties, 188 N.W.2d 283 (1971); 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. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupa tional disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though Page 4 the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The uncontroverted medical evidence and testimony in this case reveals that claimant sustained a work injury arising out of and in the course of her employment. Claimant testified that on February 26, 1988, while working for Schmit Industries, Inc., which operated the video lottery room at Winn-A-Bingo, she was given a crate containing $500 worth of quarters which weighed about 25 pounds. The crate was given to her at waist level and in the process of reaching and accepting the crate she felt a pop in her low back. Claimant had no low back problems prior to this incident. Accordingly, it is found that claimant's injury arose out of and in the course of employment with employer. Claimant has the burden of proving by a preponderance of the evidence that the injury of February 26, 1988, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 Page 5 N.W.2d 128 (1967). Physicians who have treated and/or examined claimant have unanimously stated that claimant's back impairment is causally related to her work injury. Defendant presented no evidence to the contrary. Therefore, claimant has met her burden of proof in this regard. Claimant testified that she returned to full time work activity in January 1989. Claimant was not able to state with specificity the exact date she returned to work. In the absence of evidence in this regard, claimant's healing period is found to have ended on January l, 1989. Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (l) she has returned to work; (2) is medically capable of returning to substantially similar employment; or, (3) has achieved maximum medical recovery. Since claimant returned to work on January 1, 1989, she is entitled to 40.857 weeks of healing period benefits from March 21, 1988 (the date she was no longer able to continue working) through December 31, 1988, at the stipulated rate of $144.47 per week. Claimant has clearly demonstrated she sustained an industrial disability as a result of the injury on February 26, 1988. Medical practitioners who have evaluated claimant rendered opinions on impairment ranging from 5 to 12 percent and have imposed restrictions on her employability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; Page 6 the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant, age 40 at the time of the hearing, has an eleventh grade education with no other formal educational experience. She has worked as a waitress, sales clerk and cashier. She has work restrictions which limit her to light work activity. At the time of her injury, she was earning minimum wage. In her present job she earns $3.00 per hour in addition to $40 - $60 in tips per week. Although claimant has not suffered a loss of earnings, she has suffered a loss of earning capacity due to her back impair ment. Nevertheless, she is highly motivated. Although claimant's condition has the potential to deteriorate, Dr. Luse's impairment rating in April 1990, did not change on follow-up examination on April 25, 1991. He testified that claimant's condition is somewhat stable at the present time. Surgery has not been recommended. Considering then all of the elements of industrial disability, it is determined that claimant has established a permanent partial disability of 15 percent for industrial purposes entitling her to 75 weeks of permanent partial disability benefits commencing January 1, 1989. Based upon the foregoing analysis, it is clear that claimant has established that her injury is the cause of a permanent disability. As a consequence, the necessary nexus has been established and defendant must provide medical benefits to claimant pursuant to Iowa Code section 85.27. The employee in this case denied all liability for a work-related injury. Defendant cannot deny liability on the one hand and guide the course of treatment on the other. Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16, 17 (Appeal Decision 1981). Claimant is entitled to payment of all medical expenses incurred for Page 7 the treatment and evaluation of her compensable back impairment. (These are set out in exhibits 11 through 15). Finally, claimant requests penalty benefits under Iowa Code section 86.13. This section provides in pertinent part as follows: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Generally, penalty benefits are not awarded where there is a legitimate dispute on either causation or the extent of impairment. Just v. HyGrade Food Products Corp., IV Iowa Industrial Commissioner Reports, 190 (App. Dec. 1984). Likewise, it has been determined that penalty benefits are not due where defendants assert a claim that is fairly debatable. Seydel v. U of I Physical Plant, file number 818849, (App. Dec. November 1, 1989); Stanley v. Wilson Foods, file number 753405 (App. Dec. August 23, 1990). A legitimate dispute in this case existed as to whether claimant's injury arose out of and in the course of employment and, if so, the extent of her disability. Therefore, no penalty benefits are awarded. order THEREFORE, IT IS ORDERED: That defendant pay to claimant forty point eight-five-seven (40.857) weeks of healing period benefits at the stipulated rate of one hundred forty-four and 47/l00 dollars ($144.47) per week from March 21, 1988 through December 31, 1988. That defendant pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of one hundred forty-four and 47/l00 ($144.47) per week commencing January 1, 1989. That defendant pay for all medical treatment incurred as a result of the injury of February 26, 1988. That defendant pay all costs pursuant to rule 343 IAC 4.33. That defendant pay accrued amounts in a lump sum. That defendant pay interest pursuant to Iowa Code section 85.30. That defendant file claim activity reports as required by the agency. Signed and filed this ____ day of August, 1991. Page 8 ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P O Box 1194 Sioux City IA 51102 Mr. Clarence E. Mock Attorney at Law 215 North Oakland Oakland NE 68045 Mr. Mayer Kanter Attorney at Law 232 Davidson Bldg Sioux City IA 51101 Mr. James P. Comstock Attorney at Law 1109 Badgerow Bldg P O Box 1828 Sioux City IA 51102 5-1802; 5-1803 Filed August 9, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : KATHERINE M. MUNHOFEN, : : File No. 872728 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SCHMIT INDUSTRIES, INC., : : Employer, : Defendant. : ___________________________________________________________ 5-1802; 5-1803 Claimant, 40 years old with an eleventh grade education, injured her back while working for Winn-A-Bingo. A CT scan revealed a large right sided posterior intervertebral disc herniation at L5/Sl with minimal posterior central bulging of the disc at L4/5. Claimant awarded healing period benefits and 15 percent permanent partial disability benefits after considering her age, education, work experience and 12 percent functional impairment rating. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : DANIEL L. KELLEY, : : Claimant, : : vs. : : File No. 872737 SHEFFIELD CARE CENTER, : : 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. findings of fact The findings of fact of the decision of the deputy filed March 27, 1991 are affirmed and adopted. conclusions of law The claimant raises four issues on appeal. Two of those issues can be combined. The issues to be decided are: 1. Whether it was error not to grant a continuance in this case. 2. Whether it was error to exclude (proposed cx exhibit 1.) For the reasons discussed in the deputy's ruling on motion to exclude medical report or, in the alternative motion for continuance filed February 22, 1991, the exhibit in question should be excluded. There was no error in excluding proposed cx exhibit 1. 3. Whether claimant suffered an injury that arose out of and in the course of his employment. The first issue to be addressed is whether it was error not to grant a continuance. Claimant argues it was error not to grant a continuance because claimant was unable to testify at the hearing and because certain medical evidence needed to be reviewed. Depositions of claimant are in the record. Claimant was present at the hearing but was, by his counsel's own statement, in no condition to testify (transcript, page 14, lines 14-15). Claimant's counsel also Page 2 indicated that claimant would not be able to testify in the foreseeable future (Tr., p. 14, ll. 17-19; p. 20, ll. 4-12). No good purpose would have been served to allow a continuance because claimant was unable to testify at the time of the hearing. A prehearing order was filed February 2, 1990 which ordered that claimant complete discovery within 100 days of that order. The hearing in this matter was held on February 26, 1991. Claimant's failure to timely gain medical records in this case does not constitute good grounds for granting a continuance. There was no error in denying claimant's motion for continuance. Claimant also alleges it was error to exclude certain medical evidence proposed claimant's exhibit 1. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 16, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The standard for determining whether a mental injury arose out of and in the course of employment was discussed in Ohnemus v. John Deere Davenport Works, (Appeal Decision, February 26, 1990). In order to prevail claimant must prove that he suffered a non-traumatically caused mental injury that arose out of and in the course of his employment. This matter deals with what is referred to as a mental-mental injury and does not deal with a mental condition caused by physical trauma or physical condition caused by mental stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), recognized that issues of causation can involve either causation in fact or legal causation. As stated in footnote 3 at 369 N.W.2d 810: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. That language was the basis of the language in Desgranges v. Dept of Human Services, (Appeal Decision, August 19, 1988) which discussed that there must be both medical and legal causation for a nontraumatic mental injury to arise out of and in the course of employment. While Desgranges Page 3 used the term medical causation the concept involved was factual causation. Therefore, in this matter it is necessary for two issues to be resolved before finding an injury arising out of and in the course of employment - factual and legal causation. Proving the factual existence of an injury may be accomplished by either expert testimony or nonexpert testimony. .... Not only must claimant prove that his work was the factual cause of his mental injury, claimant must also prove that the legal cause of his injury was his work. In order to prove this legal causation claimant must prove that his temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1976). The Iowa Supreme Court has not yet determined whether stress, without accompanying physical injury, may constitute legal causation. Claimant's reliance upon Hanson v. Reichelt, 452 N.W.2d 164 (Iowa 1990) is misplaced. In that case the supreme court determined the standard for compensability in a heatstroke case. That standard is not applicable for an alleged mental-mental injury. Claimant has not proved that his work or an event on February 16, 1988 was the factual cause of his condition. The findings of fact spell out the factual deficiencies and only a few need be repeated here. Claimant had previous difficulties maintaining prior employment. His condition degenerated during his employment with defendant employer. This progression took place prior to the alleged injury date of February 16, 1988 and is not attributable to any specific event or events. Some of claimant's problems with defendant employer's board of directors were a result of claimant's confrontational attitude. There is no reliable expert medical testimony that states that claimant's employment was the probable cause of his condition. A mere possibility of causation does not meet claimant's burden of proof. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 16, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion Page 4 of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). It is worth noting that Dr. Olson was even hesitant to say that there was a possibility of a causal connection. It is also noteworthy that the diagnosis of Dr. Bethel was organic personality syndrome. Merely because claimant's employment was terminated does not mean that his employment was the factual cause of his mental condition. When all the evidence is considered claimant has not proved that he suffered a mental injury that arose out of and in the course of his employment. Furthermore, claimant has not demonstrated that alleged employment stress constitutes legal causation for entitlement to workers' compensation benefits. WHEREFORE, the decision of the deputy is affirmed. order THEREFORE, it is ordered: That claimant take nothing from these proceedings. That all costs of this proceeding including transcription of the hearing are assessed to claimant. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. I. John Rossi Attorney at Law Skywalk Suite 203 700 Walnut Street Des Moines, Iowa 50309 Mr. Joseph A. Happe Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 2204 Filed October 31, 1991 Byron K. Orton BJO before the iowa industrial commissioner ____________________________________________________________ _____ : DANIEL L. KELLEY, : : Claimant, : : vs. : : File No. 872737 SHEFFIELD CARE CENTER, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 2204 Claimant had a history of an inability to hold employment for any length of time. His mental condition worsened over a period of time preceding the date he was fired. There was no medical testimony that claimant's employment was the probable cause of claimant's mental condition. One psychiatrist diagnosed claimant has having an organic personality syndrome. Merely because claimant was fired did not mean that he had suffered a mental injury that arose out of and in the course of his employment. Hanson v. Reichelt, 452 N.W.2d 164 (Iowa 1990) (a heatstroke case) was not applicable. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DANIEL L. KELLEY, : : Claimant, : : vs. : : File No. 872737 SHEFFIELD CARE CENTER, : : 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. : ____________________________________________________________ statement of the case This case came on for hearing on February 26, 1991 at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on February 16, 1988. The record in the proceeding consists of the testimony of the claimant's wife, Mary Lahner, David Dannen, Jay Crawford, John (Jack) Sheahan and joint exhibits A through U and claimant's exhibit CX2. issues Issues for resolution are: 1. Whether there is an employer-employee relationship; 2. Whether claimant's alleged February 16, 1988 injury arose out of and in the course of his employment; 3. Whether claimant's alleged disability is causally connected to his February 16, 1988 injury; 4. The nature and extent of claimant's disability and entitlement to disability benefits; and, 5. Whether claimant is entitled to section 85.27 medical benefits (causal connection and authorization). Page 2 findings of fact The undersigned deputy having heard the testimony and considered all of the evidence, finds that: Claimant was personally in court, but did not testify. He testified earlier through his depositions on July 25, 1989 and June 22, 1990. Claimant is approximately 44 years old and has a liberal arts degree from Iowa University as well as 10 and 1/2 semester hours of language and math courses from other universities. Claimant also went to Hawkeye Institute of Technology to take a nursing home course in order to get his health care administrator's license. Claimant has been fulfilling the required continuing education, which currently involves taking at least 36 hours of continuing education every two years. Claimant related his work history since graduating from college until he was hired by the defendant employer in January of 1987. These prior jobs included being a veterans' home activity specialist, a hospital co-project coordinator, and a nursing home manager and administrator at many various other facilities. Claimant was never at any facility very long. Claimant gave many reasons for leaving these facilities. Most, if not all, were claimant's subjective reasons, even though it appears the employers may have had reasons different from claimant's reasons. In some instances, claimant was in fact involuntarily terminated. Claimant indicated that all the jobs he had at the various nursing home facilities, except for one, were similar to the one he held at the defendant employer's nursing home. Claimant was not employed during approximately eight months prior to being hired by the defendant employer. Claimant testified that each of the board members of the non-profit defendant employer tried to run the facility. He indicated that one would tell the help one thing and another would tell them something different. Claimant indicated the board was impossible to work for, but he indicated the employees were good to work with. Claimant contended that if a problem arose at the facility, the patient or the patient's family would run to a board member in this closely knit small town instead of conferring with the claimant. Claimant said that, at the monthly meeting, another board member would have the treasury report instead of claimant giving the accounting as one of his duties as administrator. Claimant said the first six months or so of his job with the defendant employer went smoothly. He indicated that the board made it clear he was to live in Sheffield, Iowa where the nursing home was situated. Claimant contends that it was not a condition of his employment. Claimant did have an apartment in the town of Hampton, Iowa, approximately 25 miles from the nursing home, where he stayed during the week. Claimant would return to Newton on weekends, which the evidence indicates was approximately a Page 3 two-hour drive. Claimant did acknowledge that there were times for a short period in which he went back home to Newton during the week. This was before he resigned from the Newton school board. Claimant's wife and children had remained in Newton where claimant's wife's parents also lived. The claimant said he tried to negotiate this living arrangement with the board. The negotiations included claimant's wife coming before the board inquiring as to whether the nursing home would hire her so that she and the claimant could buy a home comparable to the home they had in Newton. Claimant indicated that the problems he was having with the board were causing stress and that his ulcers were bothering him and making him more susceptible to the flu and sickness. Claimant contends his prior ulcer problem had completely healed before he began working for the defendant employer. Claimant related the events of his February 16, 1988 alleged injury. Claimant had been off the day before. He went to a doctor in Des Moines on that morning and then returned to work at approximately 2:00 p.m. at which time he felt fine. He received an update on the nursing home status for the day from the head nurse, Mary Lahner, who is in charge of the nursing home when claimant is not there. Claimant said he began feeling dizzy and experiencing light-headedness at that time. He then called Mr. Dannen, president of the board, who indicated he would come to the facility when school was out as he was a teacher. Mr. Dannen, president, and Jay Crawford, treasurer of the board, arrived at claimant's office at the nursing home facility at 4:30 p.m. Claimant contends he handed Mr. Dannen and Mr. Crawford a note from the doctor which apparently was to indicate that he had been to the doctor that morning and was released to return to work that day. He indicated the board members did not accept nor read the note. There was never any note presented as evidence in the case. Claimant was then fired by the two board members. He indicated they appeared not to believe that he was sick the day before and that he therefore was unable to be at the monthly board meeting that took place on February 15, 1988. Claimant said he told the two board members that he was sick and they did not offer to take him to the doctor. Claimant said he had no idea what was on the board agenda on the fifteenth nor had he had any understanding that he was going to be fired. Upon being fired, claimant then cleaned out his office of his personal items and headed for West Des Moines. Claimant stopped at a truck stop approximately 12 miles from the nursing home, called his wife and told her he was sick and to meet him at the medical clinic in West Des Moines. Claimant indicated he was dizzy, felt sick and ultimately blacked out and was taken to the hospital after his car hit a concrete barrier at the truck stop. At that Page 4 time, claimant was thought to have had a stroke. Claimant related his subsequent medical treatment and evaluations with several doctors including psychiatrists. Claimant contends he can currently do virtually nothing. He indicates he has a hard time arising in the morning, shaving and showering. He related his physical and mental problems. He says he is suicidal. Claimant tried to return to work for the state of Iowa in October of 1988 and lasted approximately 54 days. He was unable to perform his job. In his June 22, 1990 deposition, claimant related his current main problems were fatigue, sleeping 18-20 hours a day and ringing in the ears. Claimant related he currently is unable to do much of anything. Dianna Kelley, claimant's wife, testified in person and also through a June 22, 1990 deposition. She and claimant have been married 24 years and she is currently employed. She related claimant's current condition and what she understood her husband's condition to be. She indicated he is under psychiatric care and has gone downhill health-wise. She thought at first that claimant might recover, but she says now the doctor has said he will not recover. Dianna Kelley acknowledged claimant drew unemployment from the state of Iowa from October 1988 through January 1989 and, in February of 1989, the Department of Human Services put claimant on a leave of absence. Claimant filed for Social Security and was ultimately determined to be disabled in July of 1989. Mrs. Kelley testified that claimant called her in the early evening on February 16, 1988 from a truck stop on his way to the doctor. She said he seemed very confused and she tried to convince him to stay at the truck stop where she would meet him. She said she received a call shortly thereafter from the truck stop personnel regarding the calling of an ambulance to take her husband to the hospital. They thought he had a stroke. She understands now that it was a stress-related anxiety attack and not a stroke. She related claimant was taking no medicine prior to February 16, 1988 and weighed 165 pounds. She estimated that claimant now weighs 260-300 pounds. She indicated claimant usually enjoys the normal nursing home stresses and the patients, but claimant did relate a conversation and altercation with the nursing home board regarding relocating to Sheffield, Iowa. Mrs. Kelley related her September 26, 1987 appearance before the nursing home board which was pursuant to a request concerning the possibility of the family moving from Newton to the Mason City area where she believes there is a better school system. Mrs. Kelley indicated that the claimant had signed a contract, but later said no contract had ever been signed. She said that after the claimant had begun working at the nursing home, the board decided they Page 5 wanted the claimant to live in Sheffield and for their children to go to school in the town. She said claimant did rent an apartment in Hampton, Iowa. She acknowledged that she understands that the family had to move to the Sheffield school area in connection with the claimant's work. She related that later another contract was proposed saying that claimant had to live in Sheffield. She emphasized she had no question as to the family living and working in the Sheffield area, but not in the town itself. Mrs. Kelley set out claimant's typical current day which was basically a day of living as a child watching TV and sleeping or resting 18 hours. She said that claimant could not give a deposition today or testify. She said that the two depositions he gave earlier are accurate as to their content. When asked whether after every move or termination involving her husband if claimant had indicated that it was she who wanted to move back to Newton, Mrs. Kelley responded that she did not demand that he quit regarding these various jobs. She acknowledged that they lived in Newton 11 of the 24 years of their marriage. She felt she would have been happy living in the Sheffield area. Mrs. Kelley testified that the claimant did not have a phone at his Hampton apartment. She related that when she went before the board to discuss whether the family could move into the area of Sheffield, namely the Mason City area, some board members were not aware that a written form of a contract was ever given to the claimant or that the claimant and his family were requested to live in Sheffield (joint exhibit C, page 27). Mrs. Kelley admitted that claimant had been feeling depressed and irritable for six months prior to February of 1988 and that the claimant had a weight problem in February of 1986. It was obvious to the undersigned at the hearing that Mrs. Kelley attributed claimant's substantial weight problem from 165 up to her 260- to 300-pound estimate to the February 16, 1988 injury or at the least beginning some time after he began employment with the defendant employer. Mary Lahner, currently the director of nursing for the defendant employer, testified she knew claimant initially in January of 1987. She indicated that when the claimant as the administrator was not at the facility, she was then in charge. She was appointed in February 1988 as acting administrator until a new administrator was hired. She recalled claimant came to work the afternoon of February 16, 1988 and said he had not felt well and was seeking the help of a Des Moines doctor. She said claimant indicated he was going to call Mr. Dannen, the board president, and ask for a medical leave to have tests done. She testified claimant seemed not to be feeling well and had head, neck and arm aches. She left at 4:00 p.m. that day. Claimant called her in the early evening and said he had been fired and would not be back to work. She said claimant seemed upset, but the conversation was normal. Mrs. Lahner knew there was a Page 6 conflict between the claimant and the board over the contract and moving. She said claimant was doing his job satisfactorily and was accepted by the employees to the best of her knowledge. She said that she had no contract prior to working and that she is from the Sheffield area. Mr. David Dannen, a third grade teacher in the Sheffield school district, has been president of the board of defendant employer since April of 1983. He said Sheffield has 1,200 residents and 400 students in the school grades K-12. He explained the nature and purpose of the defendant employer nursing home, which is governed by a nine-member board who are the policy makers. He said when claimant was there, there was not a true budget established out of which he would operate. He recalled the claimant indicated no problem with living in the Sheffield school district at the time of the hiring interview. They did not have a written contract on the date of hiring. The old one was being reviewed. He related problems the board had relating to the claimant, namely (1) he did not move to Sheffield, (2) he had no phone number in his apartment in Hampton so he was not readily accessible, (3) claimant was not there during hours expected nor did he reach the level expected, (4) he indicated claimant was possessed with the profit picture, and (5) claimant took unscheduled vacations and trips. It appeared from this witness that profit was not the main concern. The board members were not compensated. He said claimant wanted the facility to show a profit and had ways to use the surplus for salaries, etc. He said claimant did not measure up to the board expectations, so they decided to terminate claimant's employment. This decision was made at a board meeting on February 15, 1988. He emphasized that the board did not agree that claimant could live in any other area but Sheffield. He stated the regular monthly board meeting held February 15, 1988 was not attended by the claimant. It was intended that claimant would be terminated at this meeting. Claimant called in sick. It was decided to call the claimant and meet with him at a meeting eventually set up on February 16, 1988, at which time the claimant was terminated by the witness and Mr. Crawford. He said there had been no contact by them with the claimant since. Mr. Dannen acknowledged that claimant had missed only one board meeting since he was hired in January of 1987. Mr. Dannen acknowledged that the first contract draft involving the claimant was in June of 1987 and that claimant was not notified in writing at the time of his hiring that he and his family must live in the Sheffield area. He indicated that it is in writing now. Mr. Dannen also admitted that neither the policy book job description (joint exhibit 5, pages 277 and 278) nor the ad for the job set out the requirement that one move to the Sheffield area. Dannen emphasized the importance of an Page 7 administrator living in the community and being actively involved for public relations reasons. He said one reason, but not the major reason, for claimant's firing was not claimant's lack of living in the area. The biggest reason was claimant's dealings and workings with the board. He indicated claimant did not look sick on February 16, 1988 when they fired him. He also emphasized that the board already decided to fire the claimant so it was not important why or whether claimant was sick on the fifteenth of February or whether he had a doctor's note or excuse. Mr. Dannen indicated that the defendant employer had several administrators over the years. Jay Crawford, a board member for several years until he retired in August 1988, testified that he basically reaffirmed what Mr. Dannen had to say in his testimony. He emphasized that claimant would not take directions and that he challenged decisions. He felt there was not a working relationship between the claimant and the board. He also did not note any illness of the claimant on February 16, 1988. John (Jack) Sheahan, a board member at the time of claimant's hiring and to the present, testified that one of the first questions asked of the claimant to which the claimant agreed was the necessity to live in Sheffield. He said it was important for an administrator to drop in at the facility unannounced. He did not disagree with the previous board members' testimonies. Douglas W. Brenton, M.D., a neurologist, testified through his deposition on November 15, 1989 that his first visit with the claimant was February 17, 1988 through a referral on an emergency basis from Anil Sahai, Ph.D. Dr. Brenton related claimant's history and complaints which involved weakness, dizziness and decreased use of his left arm and leg. Claimant also indicated he had a long-standing tinnitus in his ears and, for the past year, his right hand more than his left would tend to fall asleep if he raised his arms to hold a steering wheel or a newspaper. Claimant also related to the doctor his trouble controlling his temper, being irritable, feeling depressed for at least six months, being impotent for the last four years or more and gaining weight. Dr. Brenton hospitalized the claimant at Iowa Methodist Medical Center and claimant was discharged on March 20, 1988 with his symptoms basically resolved. Although the doctor initially thought claimant had a stroke, he doubted this diagnosis later on and it appears he believes claimant had a depression and an anxiety attack which he said was confirmed by two psychiatrists. Dr. Brenton said claimant's MRI and CT scan were normal. The doctor last saw claimant on April 25, 1988 and recommended claimant follow up care with a psychiatrist. As evidenced in joint exhibit D, pages 17, 18 and 19, Dr. Brenton vacillates as to not only what caused claimant's problems, Page 8 but whether it could be work related resulting from stress, etc. He indicates it could or could not be depending upon the real facts and the medical situation. It is obvious he could not conclude for sure with any medical certainty. He did conclude: A. But, again, the diagnosis remains unclear. Therefore, my statement cannot be certain. . . . . A. I would be certain he suffered no apparent permanent damage as a result of that event. (Dr. Brenton deposition, page 18, lines 19 through 25) Dr. Brenton later in his deposition seems to feel claimant's problems may be the result of an inner ear disorder or disturbance and referred claimant to an otolaryngologist. Dr. Brenton added further confusion to his testimony when he concluded on direct examination that claimant either had a slight stroke or no stroke at all, but he could not tell or did not think anyone could tell which is correct. The undersigned does not believe he changes his earlier comments, that, if not a stroke, then an anxiety attack. On April 25, 1988, Dr. Brenton wrote that claimant continued to look depressed, but had no objective physical findings on that day. He also indicated that claimant was developing a pattern of symptoms of inner ear disorder (joint exhibit I, page 92). On May 20, 1988, Dr. Brenton wrote that claimant had severe psychiatric difficulty which has been confirmed by two psychiatrists (joint exhibit I, page 93). In March of 1988, an MMPI test was administered and Suzan Simmons, Ph.D., a psychologist, wrote that her diagnostic impression was that claimant had a reactive depression: personality trait disturbance (joint exhibit J, page 99). Loren Olson, M.D., a psychiatrist, saw claimant for depression through referral from Dr. Brenton and, on March 10, 1988, wrote that he felt claimant had significant amounts of depression which is primarily somaticized. He felt it would be unsatisfactory for claimant to continue with nursing home administration. The doctor also wrote that claimant told him that his weight gain had been characteristic of his depression and that claimant gained 50 pounds over the last three years. Claimant also described to Dr. Olson that he is more like his mother in that his mother is irritable and everything bothers her. The claimant told him that his mother and wife have never gotten along very well and that there continues to be problems between them to the present. The claimant indicated he supports his wife in these difficulties they are having (joint exhibit J, page 101). On May 4, 1988, Dr. Olson wrote: "At this point I don't feel that I can say that what he is experiencing is purely functional or that I can attribute it to what was Page 9 going on at work, although there is a possibility that is the case." (Joint exhibit J, pages 103 and 105) The undersigned notes that this same page 103 of exhibit J is duplicated at page 105. This is one of several instances of duplication. The undersigned deputy had warned the parties that he did not want duplication. On May 19, 1988, in a letter from Dr. Olson to claimant's attorney, Dr. Olson wrote: It would appear from my conversations with Mr. Kelly [sic] and also from your letter that he is in the process of trying to recover some damages from his previous employer. At this point I am not convinced that he is entitled to them. Basically, I see him as someone who is not a particularly good administrator and will give as support for this the fact that he had been terminated from his prior employment as well. It would appear that his latest employer also wanted to terminate him, and when he recognized this, he developed some psychological symptoms. Since he seems to have some investment in maintaining those symptoms, he will be very difficult to treat, but I do not believe that this can entirely be blamed on his last employer. (Joint exhibit J, page 107) On June 22, 1989, a psychiatric evaluation by David L. Bethel, D.O., was done. His diagnosis was organic personality syndrome (joint exhibit L, pages 124 and 125). He did not feel claimant was employable (joint exhibit L, page 128). On August 3, 1989, claimant went through a psychological evaluation by Lawrence M. Stewart, M.S., a licensed psychologist, who wrote that Daniel is incapable of managing benefits in his own behalf. Mr. Stewart also indicated that claimant's wife stated that the claimant suffered from a stroke in February 1988. The undersigned has noted that, in most instances, the claimant or claimant's wife have taken the position that claimant had a stroke. There is also evidence in the record that claimant refused or did not cooperate from a psychological standpoint in that claimant believed his situation was physical and not mental. At the hearing, it appears that the claimant's wife takes the position now that it was an anxiety attack. On July 12, 1990, claimant was admitted to a Marshalltown medical health unit per a court order. Dr. Bethel wrote in his report dictated July 21, 1990 that claimant's physical examination on admission was normal, although the patient was obese. He also noted that claimant was manipulative and that claimant had a tendency to maximize complaints and at times give conflicting statements. Many dependency needs were noted. There were Page 10 no signs of psychosis or delusional thinking (joint exhibit L, page 131). The doctor also indicated: There appears to be ongoing strive [sic] between patient, his parents, and wife. There has been little contact with parents over the last one to two years. Patient made an abrupt change of behavior where he was active on the unit. (Joint exhibit L, page 131) The doctor said that claimant also indicated, "I told you yesterday I was faking all of this." The doctor's final diagnosis was: "Organic personality syndrome." The doctor further indicated that claimant has developed some degree of marked dependency exaggerating the underlying symptomatology. On August 2, 1990, Dr. Bethel wrote: "Based upon all the events that have occurred to date, I cannot with any degree of certainty state that the events of February 16, 1988 are causally connected to his disability nor can I say that they are not." (Joint exhibit L, page 133) Claimant went through tests at the University of Iowa Hospitals and basically nothing of real significance was found or changed the medical mystery that seems to surround claimant's medical status. On April 18, 1989, Richard W. Finchan, M.D., professor at the University of Iowa, suggested that weight reduction and attainment of a relatively non-stress job would allow claimant to return to a happy and productive life (joint exhibit M, page 142). Steven C. Hill, M.D., on January 25, 1990, wrote that he saw claimant two times and basically referred claimant to other doctors, but he did comment that, "I don't think the patient is able to function in an occupation, due to his numerous problems related to this brainstem stroke." (Joint exhibit N, page 149) The undersigned believes it is not material to the issues herein or to the outcome as to whether the undersigned concludes claimant had a stroke or an anxiety attack. It is obvious the numerous medical doctors are not able to conclude for sure what in fact happened. The first difficult issue is whether claimant's alleged injury arose out of and in the course of his employment. Claimant contends it was the stress of a job climaxed by his firing from his job that in fact was the cause of his problems. It would appear from the evidence that claimant has had difficulties holding jobs over the years. He seems to give as a reason that it is natural for an administrator not to hold a job for longer than a year or two. There is no evidence that this is the norm in the industry. It would appear that claimant has had problems holding a job over the Page 11 years as an administrator, that he was terminated from some jobs, and that his subjective reasons for leaving other jobs are questionable in the undersigned's mind. Claimant admits that he has an irritable type nature and apparently he feels he gets that from his mother who he described as having an irritable nature and bothered by everything. There has been a lot of testimony concerning the dispute as to whether claimant was required to live in the Sheffield school district at the time he was hired or whether that came up later. The evidence is clear that it was claimant who insisted upon a contract, which is a reasonable request. This would seem important to the claimant based on his past work history and the shortness of his stays at certain institutions. Claimant is to blame as much as the defendant employer as to whether they should have proceeded on a employment basis in January of 1987 on a verbal contract hoping that in some early point in time a written contract would in fact be consummated. It appears undisputed that the terms of compensation were in fact agreed upon at the time claimant was hired and that it appeared claimant would be hired for a one-year period of time. It was the claimant who was confrontational or appeared to desire to change the terms of a contract. The minutes reflect that, shortly after being hired, he was after an increased salary. It seems undisputed that the claimant was the one insisting upon a contract. When the defendant employer was attempting to put together a contract, it was the claimant who wrote the board on September 28, 1987 that, "Considering the obvious animosity and distrust shown toward me by Mr. Eugene Sukup, I do not wish to pursue the negotiation of a written employment contract on October 5, 1987." (Joint exhibit T, page 283) The claimant emphasized that this letter was not a resignation. It is obvious from his terms and hearing all the testimony that this letter was in fact confrontational and would reasonably be expected to be a confrontational type letter. The undersigned believes that the greater weight of the evidence indicates that the claimant and his wife and the defendant employer understood that claimant would in fact be living and maintaining his principal residence within the geographical boundaries of the Sheffield-Chapin School District. The evidence also indicates that claimant's wife has desired in the past and in the present to live in Newton where her parents are and that this seemed to cause conflicts. Claimant's wife herself testified that she understood they would have to live in the Sheffield area, but hoped that the defendant employer would hire her and allow her children to go to the Mason City school district area where she desired to live if in fact she had to move from Newton. Again, it appears that these areas that might have been considered confrontational and may be considered stressful to the parties have really been instigated by and as a result of the claimant not following the verbal understanding that existed at the time Page 12 he was hired. It is understandable that the defendant employer would desire that an administrator of a nursing home live in the community. The needs of a nursing home are such that, not only are ready access by person and by phone essential, but in a small community the involvement of an administrator in the community affairs for public relations purposes is desirable. Claimant was not able to be reached in Hampton, Iowa where he had his temporary residence during the week. When claimant was home on the weekends, he had access to the phone, but it was at least a two-hour drive from Newton to Sheffield. Claimant also seems to attribute his increased weight problem (165 up to approximately 300 if the claimant's wife is believed) on his job stress. The evidence is very clear that claimant was having a weight problem in 1986 and told the doctor the same. Medical records indicate that claimant was having difficulties which could lead to stress like claimant's impotency over the last four years prior to November 15, 1989 (joint exhibit D, page 8). Claimant has the burden of proof. The undersigned finds that the nonmedical and medical evidence shows that possibly, and more likely probably, there could be several causes for claimant's condition. Those non-occupational causes could be as great a factor, if not greater, than any alleged occupational stress. The state of Iowa follows the Wisconsin Rule which is also favored in 1B Larson The Law of Workmen's Compensation, section 42.23(b). Under the Wisconsin Rule, a recovery requires that the emotional injury result from emotional trauma, or stress, which is of greater dimension than the stresses which all employees experience on a day-to-day basis. The requirement involves medical causation in fact connecting the employment stress with the injury. The undersigned finds that the claimant has not proven, by a preponderance of the evidence, a medical causation. The undersigned realizes this can be a close issue as to whether one being fired can be of such a stress that it would be considered arising out of and in the course of claimant's employment. There could be many similar situations like layoffs, promotions, good news, or bad news that can cause a particular stress. It can also be argued that those types of situations are not the day-to-day stresses a person would or should expect to suffer. There are other jurisdictions that have taken a different position than Iowa. In this current case, the claimant has more than just a problem as to whether a firing itself is such a stressful incident that it can be considered an injury arising out of and in the course of one's employment. As mentioned earlier, the claimant has the additional burden that the firing, if considered an occupational stress, be the proximate cause of claimant's medical condition and disability. It is interesting that, when claimant was offered his job in January of 1987 and when he was being Page 13 contacted by a board member, he was then in bed with the flu and was to come before the board as soon as possible. The only board meeting claimant missed was on February 15, 1988 at which time he said he had the flu. Claimant had been unemployed approximately eight and one-half months prior to the time he was hired in January of 1987 by the defendant employer. The undersigned believes that claimant has had similar areas of stress in the last several years, even occurring before his being hired by the defendant employer and that these same stress sources have carried through his employment with defendant employer. The undersigned does find that there was an employer-employee relationship between the claimant and the employer and that, just because claimant was fired at 4:30 under the circumstances of this case, did not and would not have resulted in there being no employer-employee relationship for the purposes of an injury. As indicated earlier, that issue is moot in light of the findings that claimant's alleged injury did not arise out of and in the course of his employment, nor was there any causal connection between claimant's disability and the alleged injury. All the other issues are now moot and there is no reason to discuss them as claimant takes nothing from this proceeding. The undersigned further finds that if in fact there was a preexisting condition that existed with this claimant, any preexisting condition is not substantially or materially aggravated or accelerated by claimant's alleged injury on February 16, 1988. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 16, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. 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. School Dist., 246 Iowa 402, 68 N.W.2ds experience on a day-to-day basis. Swiss Colony v. Dep't of Indus., L & H. R., 240 N.W.2d 128 (Wisc. 1976). The requirement involves causation in fact (medical causation) connecting the employment stress with the injury. It also requires legal causation which deals with the "out of the ordinary" character of the emotional trauma or stress viewed objectively, as it actually existed, rather than as it may have been perceived by the employee. School Dist. #1 v. Dep't of Indus., L & H. R., 215 N.W.2d 373 (Wisc. 1974). Under the "Wisconsin" rule, a nontraumatically caused mental injury is compensable only when the injury "resulted from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience." Swiss Colony, 240 N.W.2d at 130. In other words, there are two issues which must be resolved before finding an injury arising out of employment--medical and legal causation. The medical causation issue is strictly an examination into the cause and effect relationship between the stresses and tensions at work and the mental difficulties. If the medical causation issue is resolved in favor of the claimant, legal causation is next examined. This determination concerns the issue of whether the work stresses and tensions (viewed objectively, not as perceived by claimant) were "out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury." School Dist. #1, 215 N.W.2d at 377. It is further concluded that: Claimant was an employee at the time of his alleged injury on February 16, 1988. That claimant's alleged injury on February 16, 1988 did not arise out of and in the course of claimant's employment. That claimant's disability is not causally connected to claimant's alleged injury on February 16, 1988. That claimant's mental problems did not arise out of and in the course of claimant's employment nor were they Page 15 causally connected to claimant's alleged injury on February 16, 1988. That, if claimant had any preexisting condition, said condition was not substantially or materially aggravated or accelerated by any alleged injury on February 16, 1988. That claimant's firing on February 16, 1988 was not the proximate cause of claimant's alleged injury on February 16, 1988 nor was it the proximate cause of claimant's current mental situation and disability. That claimant has no industrial disability. That claimant takes nothing from these proceedings. order IT IS THEREFORE ORDERED THAT: Claimant takes nothing from these proceedings. Costs of this action are assessed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this _____ day of _____________, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. I. John Rossi Attorney at Law 203 Skywalk 7th and Walnut Des Moines, Iowa 50309 Mr. Joseph A. Happe Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1100; 1108.20; 1400; 2200 Filed March 27, 1991 BERNARD J. O'MALLEY before the iowa industrial commissioner ____________________________________________________________ : DANIEL L. KELLEY, : : Claimant, : : vs. : : File No. 872737 SHEFFIELD CARE CENTER, : : 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. : ____________________________________________________________ 1100 Found claimant's injury did not arise out of and in the course of claimant's employment nor was claimant's mental disability causally connected to claimant's injury (could have been a contributing cause, but not proximate cause). 1108.20; 1400; 2200 Claimant took nothing from this proceeding. Claimant was fired on February 16, 1988 and on the way home had either a stroke or an anxiety attack. Other than for 54 days, claimant has not worked to the present. Claimant found totally disabled for Social Security and would be totally disabled for workers' compensation if liability was found. It was determined that many other factors, not employment connected, were as great if not greater causes of claimant's condition. Claimant failed to sustain his burden. Swiss Colony v. Dep't of Indus., L & H. R., 240 N.W.2d 128 (Wisc. 1976) (the Wisconsin Rule), which Iowa follows, was applied.