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.