BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANGELO TONELLI,
 
         
 
              Claimant,                                 File No. 881055
 
         
 
         vs.                                         A R B I T R A T I O N
 
         
 
         DEPARTMENT OF CORRECTIONS                      D E C I S I O N
 
         
 
              Employer,
 
                                                           F I L E D
 
         and
 
                                                          JAN 23 1990
 
         STATE OF IOWA,
 
                                                      INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Angelo 
 
         Tonelli, claimant, against the State of Iowa-Department of 
 
         Corrections, employer and State of Iowa, insurance carrier, for 
 
         benefits as the result of an injury that occurred on October 7, 
 
         1986.  A hearing was held in Des Moines, Iowa, on December 6, 
 
         1989, and the case was fully submitted at the close of the 
 
         hearing.  Claimant was represented by Max Burkey.  Defendants 
 
         were represented by Barbara J. Danforth.  The record consists of 
 
         the testimony of Angelo Tonelli, claimant; William Fellows, 
 
         licensed physical therapist; claimant's exhibits 1 through 15 and 
 
         defendants' exhibits A through E.  The deputy ordered a copy of 
 
         the transcript of the hearing.  Both attorneys submitted 
 
         excellent posthearing briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to employer-employee relationship; 
 
         injury arising out of and in the course of employment on October 
 
         7, 1986; that the injury was the cause of both temporary and 
 
         permanent disability; that claimant is not entitled to temporary 
 
         disability benefits because he was performing community service 
 
         time (Iowa Code section 85.59); that the type of permanent 
 
         disability is industrial disability to the body as a whole; that 
 
         the commencement date for permanent disability benefits is June 
 
         21, 1989; that the rate of compensation is $204.36 per week; that 
 
         claimant's entitlement to medical expenses is no longer in 
 
         dispute; that defendants have paid claimant 22 weeks and 2 days 
 
         of workers' compensation benefits, at the rate of $204.36 per 
 
         week, prior to hearing; that defendants make no claim for 
 
         benefits paid under an employee nonoccupational group health 
 
         plan; and that there are no bifurcated claims.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ISSUE
 
         
 
              The parties submitted the following issue for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of his entitlement.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born June 18, 1933, was 53 years old at the time 
 
         of the injury and 56 years old at the time of the hearing.  
 
         Claimant completed the eleventh grade of high school.  There was 
 
         no evidence of a GED or any additional education or training. 
 
         Claimant performed mechanical work and body and fender work in 
 
         the army for approximately two years.  He performed body and 
 
         fender work for his father until 1960.  Claimant was then 
 
         self-employed in the body and fender business from 1960 to 1977.  
 
         In 1977, he went to work for his brother doing body and fender 
 
         work until 1980.  Claimant denied any serious health impairments 
 
         during these periods of time.
 
         
 
              Claimant married a second time in 1973.  He has two minor 
 
         children by that marriage, ages 11 and 15.  His wife is employed 
 
         and she earns approximately $50,000 per year.  She travels 
 
         extensively in her job.  He described himself as a house-husband. 
 
         He cares for the children and the home like a wife normally does. 
 
         He intended to start back into the body and fender business as 
 
         soon as his youngest child was old enough to take care of 
 
         herself. He does not intend to begin working in the immediate 
 
         future.
 
         
 
              Claimant was injured on October 7, 1986, while lifting a 
 
         push-type, self-propelled lawn mower onto the back of a truck.  
 
         He said the mower was made of cast iron and he estimated it might 
 
         weigh 100 pounds.  This was his first day of community service 
 
         after being sentenced to 50 hours of community service.
 
         
 
              Claimant has had no employment income since 1980, but did 
 
         have some income from a couple of rental houses.  Prior to this 
 
         injury, he bowled with his sons.  He has a backyard pool at home 
 
         and swims when his back and the weather permit.
 
         
 
              Claimant said that the doctor recommended a back brace, but 
 
         employer would not pay for it so he did not get one.  He did not 
 
         ask his own health insurance carrier to pay for it either. 
 
         Claimant testified,that the physical therapist recommended more 
 
         physical therapy, but that employer refused to pay for it. 
 
         Claimant said that employer had not offered him any retraining 
 
         for seeking employment.
 
         
 
              Claimant stated that he had two surgeries as a result of his 
 
         injury.  Since recovering he cannot vacuum, bend down to pick up 
 
         things or perform push-pull motions.  Squatting down or bending 
 
         over to lift things bothers him more than anything else.  He can 
 
         no longer hunt or fish.  Claimant agreed that Dr. Hayne said he 
 
         was overweight and that he should lose some weight.  He indicated 
 
         that he had lost 24 pounds.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Robert A. Hayne, M.D., a neurosurgeon, was the treating and 
 
         operating physician.  After treating claimant conservatively 
 
         (exhibits 8-10) and taking several tests (x-rays, CAT scans, 
 
         MRI's, myelograms) he eventually performed two lumbar 
 
         laminectomies.  One was performed on May 21, 1987 at L4, L5 on 
 
         the left and the other was performed on September 21, 1987 on L5, 
 
         S1 on the left.  A CAT scan on October 16, 1986 showed moderate 
 
         to severe degenerative changes at L4, L5 and a bone spur and mild 
 
         degenerative changes at L5, S1 (ex. 15, page 2).  Dr. Hayne 
 
         commented a number of times that even though claimant had 
 
         degenerative changes, his symptomology was precipitated by 
 
         lifting the lawn mower onto the truck (exs. 11; 13; 14, p. 2).  
 
         He said that lifting the lawn mower aggravated an underlying 
 
         preexisting condition in his back (ex. 10, p. 2).
 
         
 
              On May 4, 1988, Dr. Hayne noted claimant was 40 pounds 
 
         overweight and he was advised to lose weight (ex. 2, p. 1).  As 
 
         long as Dr. Hayne treated claimant, he still complained of 
 
         intermittent low back pain and inability to work in his garden 
 
         without back pain (exs. 1, p. 1; 2, pp. 1-3).  On June 26, 1989, 
 
         Dr. Hayne gave this final evaluation:
 
         
 
              It appears that he has experienced the maximum period of 
 
              healing of his low-back region.  He has considerable 
 
              restriction in his physical activities.  I feel that it 
 
              would not be advisable for him to engage in work which 
 
              requires repetitive forward bending and lifting over 35 
 
              pounds.  A repeat MRI of the lumbar spine was made at 
 
              Methodist Hospital on 4-14-89.  Some abnormalities were seen 
 
              on the left side, secondary to the surgery which had been 
 
              carried out at the 4th and 5th lumbar interspaces.  No 
 
              significant involvement was seen on the right side at either 
 
              of these levels.  A protruded disc at either of these levels 
 
              on the right side was not identified.
 
         
 
              At this time, it would appear that his future treatment will 
 
              be in the nature of symptomatic measures and not in the 
 
              foreseeable need for surgical treatment.  His permanent 
 
              partial disability appears to be in the neighborhood of 22% 
 
              of total.
 
         
 
         (ex. 1)
 
         
 
              J. Dan Smeltzer, M.A., a sociologist, interviewed claimant 
 
         on October 3, 1989 at Iowa Methodist Pain Management Center.  
 
         Claimant reported chronic low back pain intermittently related to 
 
         activity that radiated into both extremities.  Claimant 
 
         demonstrated a slight list to the left.  He did not make 
 
         exaggerated reference to his pain.  Smeltzer concluded, "I 
 
         believe that Mr. Tonelli suffers from a rather severe chronic 
 
         pain syndrome secondary to injury and pain status post low back 
 
         surgery times two." (defendants' exhibit A, p. 3).  He felt 
 
         claimant demonstrated a bit of a pain lifestyle and is probably 
 
         under functioning.  Other persons who have undergone rigorous 
 
         physical therapy have returned to a more active lifestyle.  Also, 
 
         on the same day, W.C. Koenig, Jr., M.D., a doctor of physical 
 
         medicine and rehabilitation, examined claimant and found, "He has 
 
         pain on motion at all planes but can left and right lateral bend 
 
         normally.  He is approximately 40 percent limited in forward 
 
         flexion before complaining of severe pain." (ex. B).  Dr. Koenig 
 
         concluded (1) status post laminectomies and (2) mechanical low 
 
         back pain.  A subsequent MRI done by Dr. Hayne disclosed another 
 
         suspicious area, but claimant wanted to avoid another myelogram 
 
         or any further surgery because of the unsuccessful nature of the 
 
         previous two surgeries.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              William A. Fellows, a licensed physical therapist in Iowa 
 
         and Kansas, and senior physical therapist at the low back 
 
         institute, testified that he performed a maximal functional 
 
         capacity examination at the request of employer (ex. C).
 
              
 
              Fellows saw claimant on November 11, 1989.  Claimant 
 
         reported that his most debilitating problem was a "catch" at the 
 
         L5, S1 incision that produced sharp pain, periodically caused him 
 
         to lose his balance, and at times he has fallen to the floor if 
 
         support was not available.  He required claimant to perform an 
 
         exercise program for several days in order to perform an accurate 
 
         functional capacity examination (ex. C).  Even so, on November 
 
         21, 1989, claimant was unable to perform the tests due to 
 
         complaints of low back and left leg pain.  Fellows concluded, 
 
         "Mr. Tonelli was unable to perform a majority of the testing 
 
         procedures.  With review of the Department of Labor Critical 
 
         Definition of work, Mr. Tonelli falls in the categories of 
 
         Sedentary work requiring the need to change from sitting to 
 
         standing on an as needed basis."  He added, "Mr. Tonelli could 
 
         still benefit from continued work on improving his posture and 
 
         lifting mechanics as well as general flexibility. This could be 
 
         done in a supervised setting or on an independent basis.  In 
 
         either case, Mr. Tonelli must be the motivating factor or 
 
         improvement will not occur." (ex. D).
 
         
 
              Dr. Koenig evaluated claimant on November 27, 1989 as 
 
         follows, "I would estimate his permanent partial disability to be 
 
         22 percent of the body as a whole.  I would recommend 
 
         work-hardening and EMG biofeedback treatment for his ongoing 
 
         pain." (ex. E).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 7, 1986, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co. 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.z'
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant is 56 years of age.  He has an eleventh grade 
 
         education.  His skills from past experience are body and fender 
 
         work, child care and homemaking.  When he last worked in 1980 in 
 
         the body and fender trade, he earned income in the upper $20,000 
 
         area.  His domestic skills and child care skills are valuable and 
 
         important, but in the competitive labor market would not be very 
 
         remunerative.  Claimant cannot perform the body and fender work 
 
         that is required by the everyday body man in most body shops. 
 
         Claimant's weight lifting restrictions; as well as, the 
 
         flexibility to bend, squat, stretch, climb and crawl and his 
 
         activity related pain would prevent his performance of normal 
 
         body shop work.  Claimant is foreclosed from performing the only 
 
         work for which he has experience and training.  Michael v. 
 
         Harrison County, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 218, 220 (Appeal Decision January 30, 1979).  He 
 
         could do limited body work if accommodations were made.  He could 
 
         be an estimator, locate and order parts, schedule work and 
 
         possibly manage a body shop if such limited work could be found. 
 
         He could be an independent automobile damage appraiser.  Claimant 
 
         thought he might study and become an insurance adjustor, however, 
 
         most insurance adjustors are college graduates and claimant does 
 
         not even have a high school education or a GED.  Based on his 
 
         age, education and the work for which he is suited, his 
 
         employment opportunities are quite limited.
 
         
 
              An employee making a claim for industrial disability will 
 
         benefit by a showing of some attempt to find work.  Hild v. 
 
         Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal 
 
         Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa 
 
         Industrial Commissioner Report 24 (1981); Cory v. Northwestern 
 
         States Portland Cement Co., Thirty-third Biennial Report of the 
 
         Industrial Commissioner 104 (1976).
 
         
 
              Claimant has not sought any kind of work or tried to do any 
 
         kind of work in the competitive labor market.  Household work is 
 
         not necessarily light work the way some persons perform it. 
 
         Claimant has performed house-husband work.  He has also been able 
 
         to garden, even though it causes him back pain.  Since claimant 
 
         has not tried to find work or perform work in the competitive 
 
         labor market, it is difficult to assess industrial disability 
 
         based on hard facts.  Since claimant has made no showing of any 
 
         effort to find or perform any kind of employment, then there is 
 
         no showing of what claimant can do or cannot do within the 
 
         boundaries of his disability and limitations of persistent pain.  
 
         Schofield v Iowa Beef Processors, Inc., II Iowa Industrial 
 
         Commissioner Report 334, 336 (1981).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Some persons can do well in spite of severe limitations and 
 
         persistent pain.  Claimant has done well to perform homemaking 
 
         duties, which are active and strenuous, and to maintain a home, 
 
         two children and a garden.
 
         
 
              Age and proximity to retirement affect a claimant's 
 
         entitlement to industrial disability.  Becke v. Turner-Busch, 
 
         Inc., Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank 
 
         Corp., II Iowa Industrial Commissioner Report 426 (1981).  
 
         Claimant indicated his youngest child might need care for at 
 
         least three more years and possibly longer.  By that time, 
 
         claimant will be approximately age 60 or older, and will be 
 
         considering retirement or early retirement, particularly in view 
 
         of his persistent back pain and his demonstrated lack of 
 
         motivation to perform exercises to improve his functional 
 
         capacities according to the Methodist Hospital evaluators.
 
         
 
              Claimant has not sought vocational rehabilitation.  McKelvey 
 
         v. Dubuque Packing Company, Thirty-third Biennial Report of the 
 
         Industrial Commissioner 227 (1976); Rapp v. Eagle Mills, Inc., 
 
         Thirty-fourth Biennial Report of the Iowa Industrial Commissioner 
 
         264 (1979); Curtis v. Swift Independent Packing, IV Iowa 
 
         Industrial Commissioner Reports 99 (1984).  Nor has employer 
 
         suggested or offered any vocational rehabilitation.  Schill v. 
 
         HyGrade Food Products, Thirty-third Biennial Report of the 
 
         Industrial Commissioner 121 (1977).
 
         
 
              Industrial disability, or loss of earning capacity, in a 
 
         workers' compensation case is quite similar to impairment of 
 
         earning capacity, an element of damages in a tort case.  
 
         Impairment of physical capacity creates an inference of lessened 
 
         earning capacity.  The basic element to be determined, however, 
 
         is the reduction in value of the general earning capacity of the 
 
         person rather than actual loss of wages or earnings in a specific 
 
         occupation.  Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) 100 A.L.R.3d 143; 2 Larson, Workmen's 
 
         Compensation Law, 57.21, 57.31.  While postinjury earnings 
 
         create a presumption of earning capacity, they are not synonymous 
 
         with earning capacity.  2 Larson, Id.
 
         
 
              Even though claimant cannot demonstrate an actual loss of 
 
         earnings, he has demonstrated a significant loss of earning 
 
         capacity.  He is foreclosed from performing the activities of 
 
         body work that most body and fender men are required to perform 
 
         on a daily basis.  Yet, he does have transferable skills as an 
 
         estimator, manager or facilitator in a body shop.  He could 
 
         possibly be self-employed in the automobile body repair business. 
 
         He could work in several capacities with automobile repair parts 
 
         either new parts or in a salvage operation.  Claimant could 
 
         pursue a number of sedentary jobs, sales jobs or clerical jobs 
 
         within or outside of the automobile business.  Claimant is 
 
         intelligent and capable.  His lack of formal education has not 
 
         deprived him of his native intelligence or experience in the 
 
         business world.  At the same time, his earning capacity is 
 
         significantly impaired.  His body is physically and functionally 
 
         impaired to the extent of 22 percent of the whole person.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Wherefore, based on all of the foregoing considerations, and 
 
         all of the considerations used to determine industrial 
 
         disability, and employing agency expertise [Iowa Administrative 
 
         Procedure Act 17A.14(5)], it is determined that claimant has 
 
         sustained a 30 percent industrial disability to the body as a 
 
         whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That the back injury that claimant sustained on October 7, 
 
         1986 was the cause of a 22 percent physical and functional 
 
         impairment to the body as a whole according to both Dr. Hayne, 
 
         the treating neurosurgeon, and Dr. Koenig, a physical medicine 
 
         doctor.
 
         
 
              That two lumbar laminectomies were performed on claimant.
 
         
 
              That claimant continues to have activity related 
 
         intermittent back pain that radiates down both lower extremities.
 
         
 
              That an MRI has disclosed abnormalities on the left side 
 
         secondary to the previous surgery at the fourth and fifth lumbar 
 
         levels.
 
         
 
              That claimant is restricted from bending forward and lifting 
 
         over 35 pounds, lifting within his restriction should not be 
 
         continuous, that he should avoid repetitive bending and twisting, 
 
         and that these restrictions preclude claimant from performing 
 
         normal body shop and fender work which is his only past work 
 
         experience.
 
         
 
              That Dr. Koenig found pain at all planes and a 40 percent 
 
         limitation of forward flexion.
 
         
 
              That claimant is age 56, has an eleventh grade education and 
 
         his only past employment has been body and fender work.
 
         
 
              That claimant has not been employed outside of the home 
 
         since 1980, but has performed the duties of homemaking and caring 
 
         for his two minor children, and by agreement of the parties, his 
 
         wife has chosen work and financially supports the family.
 
         
 
              That claimant's last employment, in approximately 1980, paid 
 
         him an annual income in the upper $20,000 area.
 
         
 
              That claimant is deconditioned and needs work hardening or 
 
         an exercise program to gain his full capability after the 
 
         surgeries and the physical therapist did not feel claimant was 
 
         motivated to exert his maximum effort to regain his full 
 
         capability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That the sociologist thought that claimant demonstrated a 
 
         pain lifestyle and was probably under functioning.
 
         
 
              That the licensed physical therapist found that claimant 
 
         could not perform a majority of the testing procedures in the 
 
         functional capacities examination and that he could only perform 
 
         sedentary work with a change from sitting to standing as needed.
 
         
 
              That claimant had a preexisting degenerative back condition, 
 
         but Dr. Hayne said that the injury on October 7, 1986 caused it 
 
         to become symptomatic.
 
         
 
              That claimant was 40 pounds overweight, but has lost 24 of 
 
         those pounds.
 
         
 
              That claimant has not sought work in the competitive labor 
 
         market and has no plans to do so until his 11 year-old daughter 
 
         is at least three or more years older.
 
         
 
              Claimant's employment opportunities in the competitive labor 
 
         market are limited and retraining is not too feasible due to his 
 
         eleventh grade education and pursuit of body shop work most of 
 
         his adult life as distinguished from types of work which involved 
 
         educational or learning skills.
 
         
 
              That claimant's plan to possibly return to the competitive 
 
         labor market coincides with the normal retirement or the early 
 
         retirement date of other workers in our society.
 
         
 
              That claimant has sustained an industrial disability of 30 
 
         percent to the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That the injury of October 7, 1986, was the cause of 
 
         permanent disability.
 
         
 
              That claimant has sustained an industrial disability of 30 
 
         percent of the body as a whole.
 
         
 
              That claimant is entitled to 150 weeks of permanent 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the rate of Two 
 
         Hundred Four and 36/100 Dollars ($204.36) per week in the total 
 
         amount of Thirty Thousand Six Hundred Fifty-four Dollars 
 
         ($30,654) commencing on June 21, 1989, as stipulated to by the 
 
         parties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That defendants are entitled to twenty two point two eight 
 
         six (22.286) weeks of credit for workers' compensation benefits 
 
         paid prior to hearing at the rate of Two Hundred Four and 36/100 
 
         Dollars ($204.36) in the total amount of Four Thousand Five 
 
         Hundred Fifty-four and 37/100 Dollars ($4,554.37) as stipulated 
 
         by the parties.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
              
 
              Signed and filed this 23rd day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER P. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies To:
 
         
 
         Mr. Max Burkey
 
         Attorney at Law
 
         100 Court Ave
 
         STE 121
 
         Des Moines, IA  50309
 
         
 
         Ms. Barbara Danforth
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, IA  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51801; 51802; 51803
 
                                            Filed January 23, 1990
 
                                            Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANGELO TONELLI,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 881055
 
         DEPARTMENT OF CORRECTIONS
 
                                               A R B I T R A T I 0 N 
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51801; 51802
 
         
 
              Temporary disability was not an issue in the case because 
 
         claimant was injured on the first day of a sentence of 50 hours 
 
         of community service (Iowa Code 85.59).
 
         
 
         51803
 
         
 
              Claimant injured his back lifting a lawn mower onto a truck 
 
         and subsequently received two lumbar laminectomies and continued 
 
         to demonstrate an abnormal MRI secondary to one of the earlier 
 
         laminectomies.  Industrial disability was unusual because 
 
         claimant was a house-husband.  By mutual agreement his wife works 
 
         at a well paying job and supports him and their two children.  He 
 
         cares for the children and the home.
 
         
 
              All of his prior employment, up until 1980, was body and 
 
         fender work.  He is foreclosed from that work now.  In 1980, he 
 
         earned in the upper $20,000 area.  He planned to return to work 
 
         when his youngest child was old enough to take care of herself.  
 
         He had no immediate plans to return to the competitive employment 
 
         market.
 
         
 
              Claimant was 56 years old at the time of hearing and his 
 
         plan to return to work coincided with retirement age or early 
 
         retirement age of other individuals.  He received an eleventh 
 
         grade education and did not have a GED.  He was overweight by 40 
 
         pounds, but had lost 24 pounds.  His physical and functional 
 
         impairment was 22 percent as rated by the neurosurgeon and 22 
 
         percent as rated by a physical medicine doctor.  The licensed 
 
         physical therapist said claimant had not returned to full 
 
         functioning due to a lack of motivation to perform physical 
 
         therapy or exercises at home.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was awarded 30 percent industrial disability to the 
 
         body as a whole.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT G. ELLER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 881064
 
            CLASSIC MASONRY, INC.,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            MARYLAND CASUALTY COMPANY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            G. Eller against his former employer, Classic Masonry, Inc., 
 
            and its insurance carrier, Maryland Casualty Company, based 
 
            upon an injury that occurred on September 29, 1987 at Blue 
 
            Springs, Missouri.
 
            
 
                 The initial issue to be determined is whether the state 
 
            of Iowa has jurisdiction over the injury.  If jurisdiction 
 
            exists, the remaining issue is the extent of permanent 
 
            partial disability that the claimant is entitled to recover 
 
            as a result of the injury.
 
            
 
                 The case was heard at Des Moines, Iowa on September 24, 
 
            1990.  The record in the proceeding consists of jointly 
 
            offered exhibits A through F, claimant's exhibit G and 
 
            testimony from Robert G. Eller, Joe Stone and Charles 
 
            Johnson.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Robert G. Eller is a 63-year-old married man who has 
 
            worked as a mason or bricklayer throughout most of his adult 
 
            life.  The work is such that it required him to travel away 
 
            from his home in order to be regularly employed.  It was 
 
            common for him to have several employers and periods of 
 
            unemployment each year due to the somewhat seasonal nature 
 
            of masonry work.  Eller has lived at Colo, Iowa for several 
 
            years.  He has lived in that same general vicinity 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            throughout much of his adult life.
 
            
 
                 Eller injured his back and left shoulder on September 
 
            29, 1987 when a scaffold plank went out and he fell.  The 
 
            employer and its insurance carrier apparently accepted 
 
            compensability of the injuries as they have paid benefits 
 
            under the Missouri workers' compensation law.
 
            
 
                 There is no real dispute among claimant, Stone and 
 
            Johnson with regard to the circumstances leading to the 
 
            commencement of claimant's employment with Classic Masonry, 
 
            Inc., and also with regard to the duties Eller performed for 
 
            Classic Masonry, Inc.  The job at Blue Springs, Missouri was 
 
            the only job site where Eller worked for Classic Masonry, 
 
            Inc.  He had not been employed by that employer either prior 
 
            or subsequent to the work at that job site.  Classic 
 
            Masonry, Inc., had no job sites in the state of Iowa during 
 
            1987.
 
            
 
                 During the summer of 1987, Eller had been working in 
 
            the state of Indiana and wanted to find a job which was 
 
            closer to his home in Iowa.  Through acquaintances, he 
 
            became aware that there was a possibility of work in the 
 
            Kansas City area.  Claimant contacted the bricklayer union 
 
            business agents in Kansas City, Missouri and St. Joseph, 
 
            Missouri.  Eller found work for himself and a friend 
 
            building a mini-mall in Kansas City, Missouri (exhibit E, 
 
            page 18).  While working on that job, Eller became aware of 
 
            a job building a school at Blue Springs, Missouri.  Eller 
 
            and two friends went to the job site and were given the name 
 
            of Charlie Johnson who was the masonry superintendent for 
 
            the job.  That evening, Eller phoned Johnson and was 
 
            informed that the brick for the job was to be delivered 
 
            during the last week of August.  Johnson requested that 
 
            claimant contact him again as the end of August approached 
 
            (exhibit E, page 20).
 
            
 
                 Claimant did contact Johnson again as the end of August 
 
            approached, and during their discussion, claimant believed 
 
            that there were three other bricklayers and two tenders who 
 
            would be going to the Blue Springs school construction job 
 
            with him.  By Labor Day weekend, however, two of the 
 
            bricklayers and one of the tenders had obtained other 
 
            employment or decided not to accept the Blue Springs school 
 
            job with Classic Masonry, Inc.  Claimant was uncertain about 
 
            whether or not Johnson, the superintendent, would still want 
 
            him if the entire group of four bricklayers and two tenders 
 
            were not available.  Claimant called the Classic Masonry 
 
            office on Saturday morning of Labor Day weekend and was told 
 
            to come to the job site (exhibit E, pages 21-24).
 
            
 
                 Claimant, one other bricklayer and the tender went to 
 
            the job site on the Tuesday following Labor Day weekend.  
 
            The brick foreman was unaware that they were coming and did 
 
            not have work planned for them.  Claimant waited until 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Wednesday to actually commence work.
 
            
 
                 In the masonry construction industry, it is common for 
 
            bricklayers to contact potential employers seeking work.  If 
 
            the employer has work and has interest in hiring that 
 
            particular bricklayer, the bricklayer will be directed to 
 
            report to the job site.  Before beginning work, a new 
 
            employee is required to fill out forms for the Internal 
 
            Revenue Service and the Immigration and Naturalization 
 
            Service.  The first few hours of work are a probationary 
 
            type of arrangement during which time the superintendent or 
 
            foreman can discharge the bricklayer if the work is 
 
            unsuitable.  Johnson did not consider a bricklayer to be 
 
            actually hired until the bricklayer showed up at the work 
 
            site to begin work.  Some would arrange for work, but not 
 
            show up at the work site to begin work.
 
            
 
                 It is found that in this case Robert G. Eller contacted 
 
            Charles Johnson of Classic Masonry, Inc., in order to 
 
            initiate the employment relationship.  Eller offered his 
 
            services to Johnson and Johnson accepted.  The offer was 
 
            made initially when Eller first contacted Johnson.  At that 
 
            time, any response as to hiring was deferred.  Later during 
 
            the month of August, Eller again offered his services to 
 
            Johnson by making further contact.  At that time, Johnson 
 
            offered work to Eller as well as to the three other 
 
            bricklayers and two tenders for whom Eller believed he was 
 
            speaking.  At that point, it was agreed between Eller and 
 
            Johnson that Eller, as well as the other five individuals, 
 
            would come to work for Classic Masonry, Inc., at the Blue 
 
            Springs, Missouri school job site.  As the time for 
 
            beginning work approached, two of the bricklayers and one 
 
            tender declined to go to work for Classic Masonry, Inc.  
 
            Claimant became concerned that the arrangement was "all or 
 
            none" so he phoned Classic Masonry, Inc., from his home in 
 
            Colo, Iowa on the Saturday of Labor Day weekend and was 
 
            advised that the arrangement was not "all or none" and that 
 
            he should report to work as originally planned.  Claimant, 
 
            the other bricklayer and the tender did report to work 
 
            following Labor Day weekend and were employed.
 
            
 
                 It is found that, in late August of 1987, a verbal 
 
            contract was made between Eller and Johnson which provided 
 
            that Classic Masonry, Inc., would provide employment to 
 
            Eller if Eller reported for work following the Labor Day 
 
            weekend.  Claimant apparently had some question with regard 
 
            to whether the arrangement was dependent upon having four 
 
            bricklayers and two tenders, but Classic Masonry, Inc., 
 
            apparently had no such reservation.  If the hiring is deemed 
 
            to have occurred at the time the agreement was made that 
 
            claimant and the others would come to work for Classic 
 
            Masonry, Inc., at the Blue Springs school job site, then the 
 
            hiring occurred entirely within the state of Missouri since 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            all of claimant's contacts with the employer had occurred 
 
            while the claimant was physically located in the state of 
 
            Missouri.  The events that occurred on the Saturday of Labor 
 
            Day weekend when Eller phoned the employer did not create an 
 
            employment relationship.  That phone call only confirmed 
 
            that the prior agreement was unchanged as far as it related 
 
            to employing claimant.
 
            
 
                 It is specifically found, however, that the actual 
 
            hiring did not occur until Eller reported to the job site at 
 
            Blue Springs, Missouri following Labor Day weekend.  All 
 
            that had existed prior to that time was an agreement to 
 
            create an employment relationship at a point in the future, 
 
            namely when there was work for claimant to do and when 
 
            claimant reported to the job site to perform that work.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to benefits under the Iowa 
 
            workers' compensation laws only under limited circumstances 
 
            if the injury occurs outside of the geographical area of the 
 
            state of Iowa, all as provided by Code section 85.71.  While 
 
            subsection 1 of Code section 85.71 could, on its face, be 
 
            construed to provide jurisdiction if the employee is 
 
            domiciled in the state of Iowa, the Iowa Supreme Court has 
 
            rejected that construction.  Domicile alone is not 
 
            sufficient to give jurisdiction.  Ewing v. George A. Hormel 
 
            & Co., 428 N.W.2d 674 (Iowa 1988); Orr v. McNair, 386 N.W.2d 
 
            145 (Iowa App. 1986); George H. Wentz, Inc. v. Sabasta, 337 
 
            N.W.2d 495 (Iowa 1983); Iowa Beef Processors v. Miller, 312 
 
            N.W.2d 530 (Iowa 1981).
 
            
 
                 Classic Masonry, Inc., had no place of business in the 
 
            state of Iowa during any part of 1987 and Eller never worked 
 
            for Classic Masonry, Inc., within the state of Iowa.  
 
            Jurisdiction cannot be found for this case under the 
 
            provisions of subsection 1 of Iowa Code section 85.71.
 
            
 
                 Claimant's work for Classic Masonry, Inc., was 
 
            performed exclusively in the state of Missouri.  It was 
 
            therefore principally localized in the state of Missouri.  
 
            The claimant received benefits under the workers' 
 
            compensation laws of the state of Missouri.  For these 
 
            reasons, subsections 2, 3 and 4 of Iowa Code section 85.71 
 
            do not provide any source of jurisdiction, even if it were 
 
            to be assumed that the contract of hire had been made within 
 
            the state of Iowa.
 
            
 
                 The term "employment" as used in Iowa Code section 
 
            85.71 refers to the employment with the particular employer 
 
            against whom the claim is made.  It does not refer to the 
 
            succession of employers for whom the claimant has worked 
 
            over the course of his life in a particular line of work or 
 
            industry, in this case as a journeyman mason.  The 
 
            determination of where the employment is principally 
 
            localized is based upon the employment with the employer 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            against whom the claim is made, rather than upon the places 
 
            the claimant has worked for other employers during the 
 
            course of his career.
 
            
 
                 It is therefore concluded that the Iowa Industrial 
 
            Commissioner and the Iowa Division of Industrial Services 
 
            does not have jurisdiction of the subject matter of this 
 
            claim.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant's claim is 
 
            dismissed for lack of subject matter jurisdiction.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the claimant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2303
 
                                               Filed October 11, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT G. ELLER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 881064
 
            CLASSIC MASONRY, INC.,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            MARYLAND CASUALTY COMPANY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2303
 
            The term "employment" in Iowa Code section 85.71 refers to 
 
            the employment relationship between the claimant and the 
 
            employer against whom the claim is made.  It does not refer 
 
            to the succession of employers by whom the claimant has been 
 
            employed within the same industry or line of work.  The 
 
            determination of where the employment is principally 
 
            localized is based upon the employment with the employer 
 
            against whom the claim is made, rather than upon the places 
 
            the claimant has worked for other employers during the 
 
            course of his career.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH J. EAREL,             :
 
                                          :
 
                 Claimant,                :         File No. 881066
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed August 15, 1988.  Claimant alleges that he 
 
            sustained an injury to his back while manipulating rolled 
 
            aluminum on March 9, 1988.  He now seeks benefits under the 
 
            Iowa Workers' Compensation Act from his self-insured 
 
            employer, Aluminum Company of America.
 
            
 
                 Hearing on the arbitration petition was had in 
 
            Davenport, Iowa, on September 21, 1989.  The record consists 
 
            of joint exhibits 1 through 6, claimant's exhibits A and B 
 
            and the testimony of the following witnesses:  claimant, 
 
            Norma Earel, George Pratt, Louis Casta, M.D., and Dick Sass.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that an employment relationship existed between 
 
            claimant and employer at the time of the alleged injury; 
 
            that if claimant has sustained permanent disability, it is 
 
            an industrial disability to the body as a whole; that the 
 
            appropriate rate of compensation is $339.37 per week; that 
 
            affirmative defenses have been waived; that all requested 
 
            medical benefits have been paid under defendant's sickness 
 
            and accident policy; that defendant is entitled to certain 
 
            credits under Iowa Code section 85.38(2) in the event 
 
            claimant prevails.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of his employment on March 9, 1988; whether the 
 
            injury caused either temporary or permanent disability and 
 
            the extent of each; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, a ninth grade graduate, was 58 years of age 
 
            at the time of hearing.  His work history consists of 
 
            approximately two and one-half years in the dry cleaning 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            business and employment with defendant Aluminum Company of 
 
            America (Alcoa) since May 4, 1951.  Claimant indicated that 
 
            it was his intent to retire at age 62.
 
            
 
                 Claimant has a long history of back problems.  He 
 
            complained to his primary treating physician, Patrick 
 
            Cunningham, M.D., of back pain as early as March 31, 1981.  
 
            In September, 1986, claimant developed pain in the left leg 
 
            which Dr. Cunningham originally felt was referred pain from 
 
            a back problem, although this proved eventually not to be 
 
            the case.  However, x-rays were taken at that time and 
 
            showed degenerative changes and arthritis of the lower back.  
 
            Computerized axial tomography of November 15, 1986 showed a 
 
            mildly bulging disc at L5-S1.
 
            
 
                 Dr. Cunningham has imposed a series of medical 
 
            restrictions because of claimant's back condition beginning 
 
            in 1986.  On October 20, he restricted claimant against 
 
            stooping or twisting and working excessive hours.  On 
 
            November 17, 1986, Dr. Cunningham gave claimant a lifting 
 
            restriction of 50 pounds and further restrictions against 
 
            any pushing or pulling, squatting or twisting.  The 
 
            restriction was originally limited to January, 1987, but Dr. 
 
            Cunningham testified (by deposition on December 16, 1988) 
 
            that the restrictions were "standing" in nature as of 
 
            October 20, 1987.  On March 19, 1987, Dr. Cunningham imposed 
 
            written restrictions against any prolonged standing, 
 
            pushing, pulling, squatting or twisting and imposed a 
 
            50-pound weight restriction to continue until the end of 
 
            June.  On June 11, 1987, Dr. Cunningham issued the same 
 
            written restrictions to continue until claimant's next 
 
            appointment in the fall.  On December 2, 1987, Dr. 
 
            Cunningham noted that claimant was incapable of any 
 
            squatting and may occasionally need to sit to relieve his 
 
            lower back; he should do very limited pushing, pulling and 
 
            avoid weight lifting of over 50 pounds based on degenerative 
 
            problems of a long-standing nature which would probably be 
 
            with him off and on to a varying degree.
 
            
 
                 Claimant visited Dr. Cunningham with complaints of 
 
            increased problems shortly before the claimed work injury.  
 
            As a result, Dr. Cunningham issued written restrictions on 
 
            March 4, 1988 noting that claimant had been advised to do no 
 
            squatting, that he needed to be able to sit occasionally to 
 
            relieve pain, that he had limited pushing and pulling 
 
            ability, that claimant had certain specific jobs that he 
 
            found difficult (including the job worked at the time of the 
 
            claimed injury), that he should not work more than 40 hours 
 
            per week and imposing a 25-pound weight restriction.
 
            
 
                 Claimant had not delivered this most recent set of 
 
            restrictions to defendant at the time of his claimed injury.  
 
            On March 9, 1988, he was working the 100-inch mill, where 
 
            metal sheets are rolled.  The rolls are described as very 
 
            heavy and are lifted with the aid of cables and 
 
            counterbalance.  Claimant described the injury as occurring 
 
            while stacking aircraft wings (described as 800 inches by 60 
 
            inches by 3/4 inch) on trailers.  While pushing and pulling 
 
            to steady and line up these items, claimant states his back 
 
            "popped out," following which he sat down to rest, but his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            back "popped" again when he tried to return to the job.  
 
            Claimant described the resulting pain as "terrible" and such 
 
            like he had never felt before in his life; although he had 
 
            suffered pain in the lower back previously, he described 
 
            this pain as at a higher level.
 
            
 
                 Claimant thereafter complained of his back pain to his 
 
            supervisor, Dick Sass.  Sass referred him to the company 
 
            nurse, following which he was sent home from work.
 
            
 
                 Claimant's memory of what he told Sass and the company 
 
            nurse seemed hazy.  Sass, claimant's supervisor, credibly 
 
            testified that claimant complained of back pain and was sent 
 
            to the lunch table to rest; thereafter, that claimant wanted 
 
            to go home approximately 20 minutes later.  Sass further 
 
            testified that claimant did not claim to have hurt or 
 
            strained his back while working and made no reference to any 
 
            "popping" incident(s) and in general gave no indication 
 
            whatsoever that he had sustained a work injury.  Sass knew 
 
            of claimant's history and medical restrictions, so asked 
 
            around with other employees as to what had happened.  No one 
 
            was aware of any traumatic incident.  Sass also recalled 
 
            that in a meeting of March 21, 1988 (when claimant first 
 
            made known to defendant that he was alleging a work injury) 
 
            Mr. Earel conceded that he had failed to report the work 
 
            injury and, by way of paraphrase, "but I guess I should 
 
            have."
 
            
 
                 Louis Casta, M.D., has been the company physician for 
 
            some four years.  Dr. Casta is board eligible in 
 
            occupational medicine.  According to Dr. Casta, company 
 
            nurses are instructed to ask injured employees if complaints 
 
            are related to a work injury, and if not, to turn in 
 
            disability and medical claims to the sickness and accident 
 
            carrier as opposed to a workers' compensation claim.  He 
 
            identified exhibit 1(b) as copies of defendant's medical 
 
            records kept in the ordinary course of business by a company 
 
            physician or nurse on duty.
 
            
 
                 That injury and illness record for March 9, 1988 
 
            reflects that claimant was brought to medical having trouble 
 
            with his back.  "Has had past problems [with] it.  States no 
 
            known injury to back.  States was just stablizing [sic] the 
 
            metal.  States has had trouble [with] back for past 1 1/2 
 
            yrs.  Brought in note from Dr. Cunningham [with] restric."
 
            
 
                 Further notes of a different handwriting appear on the 
 
            same date, concerning a phone call from claimant's wife.  
 
            There is no mention of any claim that a work injury was 
 
            suffered, although Mrs. Earel testified that claimant 
 
            described the work injury and that something had "popped" 
 
            when he returned home.  However, Mrs. Earel agreed on 
 
            cross-examination that she believes she told the nurse 
 
            during that conversation that claimant's problem was 
 
            arthritis.  Defendant's notes of that conversation include:  
 
            "[S]tates problem in back is arthritis."  It is difficult 
 
            for this observer to reconcile that admission with her 
 
            testimony that claimant had already described himself as 
 
            having a traumatic work injury.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 On March 21, 1988, claimant for the first time reported 
 
            to defendant that his back condition was caused by injury.  
 
            He had previously seen Dr. Cunningham on March 14 and 
 
            reported a work injury in much the same way as the 
 
            description in testimony.  The pain described to Dr. 
 
            Cunningham appeared to that physician to be at a slightly 
 
            higher level than pain reported in past visits.  Dr. 
 
            Cunningham found one comment made at that visit to be 
 
            significant enough to chart:  that while claimant was 
 
            willing to do a light-duty job, he was unwilling to do heavy 
 
            work and if no such work was available he would "force" 
 
            defendant to fire him.
 
            
 
                 Claimant thereafter had an extended rehabilitation, 
 
            which he clearly considers unsuccessful.  His complaints are 
 
            many, his self-imposed limitations severe, and he has not 
 
            sought work since, citing continued back pain and a belief 
 
            that no other employer would hire him anyway.
 
            
 
                 Although Dr. Cunningham's testimony is a little 
 
            confusing, it appears that he believes claimant to be 
 
            essentially recovered from his earlier state of malaise, but 
 
            certain restrictions are still in effect.  Dr. Cunningham 
 
            conceded that on the one or two most recent examinations, he 
 
            had felt willing to increase claimant back to a 50-pound 
 
            weight restriction (twice the weight restriction in effect 
 
            at the time of the claimed injury), but that claimant was 
 
            reluctant for fear of aggravating the problem and that "you 
 
            would appreciate from the legal profession" that if the 
 
            weight restriction were lifted and claimant reinjured 
 
            himself "after he told me that he didn't want to do that, it 
 
            would make me feel very uncomfortable."  (Dr. Cunningham's 
 
            deposition, page 30).  Dr. Cunningham agreed specifically 
 
            that part of his recommendations were based upon what the 
 
            patient himself wanted.  In any event, Dr. Cunningham 
 
            pointed out that claimant will never be freed from the 
 
            restrictions that he had prior to the claimed injury and, to 
 
            a reasonable degree of medical certainty, that claimant's 
 
            condition now is related to his preexisting chronic problem 
 
            rather than the alleged injury.
 
            
 
                 Dr. Cunningham believed that claimant's temporary 
 
            disability for a matter of months was causally related to 
 
            the described work injury, since he accepted the fact of the 
 
            work injury as a given.
 
            
 
                 On balance, this writer is unable to accept that a work 
 
            injury occurred as claimant describes.  Claimant was nearing 
 
            retirement age and had noticed an increase in back pain of 
 
            many years' duration just a few days before the claimed 
 
            injury, severe enough that he sought medical attention 
 
            resulting in a sharp increase in medical restrictions.  
 
            Claimant had not yet turned this slip over to Alcoa when his 
 
            pain became such that he found it necessary to leave work.  
 
            Although he described this pain as "terrible" at a new level 
 
            of his back, and like nothing he had ever felt before, he 
 
            failed to mention this to anyone, including his foreman and 
 
            the company nurse.  Mr. Sass recalled claimant commenting 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that his back had been "giving problems today," but nothing 
 
            of any claimed work injury, strain or "popping" on two 
 
            occasions.  Contemporaneous notes of the nurse first seen 
 
            make reference to past problems and specified that claimant 
 
            stated he had no known injury to his back.  This, despite 
 
            the fact that company nurses are trained in such cases to 
 
            ask if a work injury is claimed.  Later that day, a 
 
            different nurse had a telephone conversation with claimant's 
 
            wife in which Mrs. Earel stated the problem was arthritis, 
 
            of which claimant, as has been seen, has a long history.  
 
            Although claimant reported such an injury to Dr. Cunningham, 
 
            this was five days later, and the first time claimant had 
 
            made such an allegation to anyone except, allegedly, his 
 
            wife.  The incident was not reported to defendant until nine 
 
            days later, when the condition was being processed under a 
 
            sickness and accident policy.  Claimant apparently harbored 
 
            some resentment against Alcoa as shown by his comment to Dr. 
 
            Cunningham during the March 14 appointment that if he were 
 
            not given light work, he would force defendant to fire him.  
 
            Thereafter, claimant has shown no motivation to return to 
 
            work and has apparently projected such an attitude to his 
 
            treating physician that Dr. Cunningham has for non-medical 
 
            reasons refrained from raising weight restrictions to what 
 
            would otherwise be the case.
 
            
 
                 Factors favoring claimant's credibility are that he 
 
            apparently lost the function to continue work while he was 
 
            at work and that he made complaint to Dr. Cunningham of pain 
 
            at a higher level than had previously been the case during a 
 
            long association.  In addition, Mrs. Earel's testimony is of 
 
            an immediate complaint of a work injury when claimant 
 
            returned home.  Yet, the fact that claimant was present at 
 
            work when complaint of pain was made is equally consistent 
 
            with the possibility that claimant finally decided he just 
 
            could not take it any longer with respect to the same pain 
 
            that had prompted his visit to Dr. Cunningham only a few 
 
            days before.  As has been noted, while Mrs. Earel testified 
 
            to an immediate complaint of a work injury, she made 
 
            reference only to arthritis when she made a call to the 
 
            company nurse on the same day.  Dr. Cunningham accepted 
 
            claimant's recounting of a work injury as a given and found 
 
            that claimant reported pain at a slightly higher level than 
 
            had previously been the case.  Yet, there seems little in 
 
            the way of objective evidence of any such higher defect.  On 
 
            balance, this writer does not believe that claimant 
 
            sustained a work injury as he described.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 9, 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 injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 Since claimant has failed to show as a matter of fact 
 
            that he sustained a traumatic incident such as he has 
 
            alleged, it must be held that he has failed to meet his 
 
            burden of proof in establishing an injury arising out of and 
 
            in the course of his employment.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action shall be assessed to claimant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 East 6th Street
 
            P.O. Box 339
 
            Davenport, Iowa  52805
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Building
 
            Davenport, Iowa  52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.20
 
                                               Filed September 19, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH J. EAREL,             :
 
                                          :
 
                 Claimant,                :         File No. 881066
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1402.20
 
            Claimant, who lacked credibility, failed to prove a 
 
            work-related traumatic back injury.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DELORES SHORT, ADMINISTRATOR    :
 
            and SURVIVING SPOUSE OF         :
 
            DONALD E. SHORT, SR.,           :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 881070
 
            B & T TRUCKING, INC.,           :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            CIGNA INSURANCE and             :
 
            HARTFORD INSURANCE COMPANY,     :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUE
 
            
 
                 The issue on appeal is:  Whether claimant has proved 
 
            that claimant's decedent sustained an injury that arose out 
 
            of and in the course of employment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed June 22, 1991 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 *****
 
            
 
                 This claim originates from a heart attack and eventual 
 
            death of claimant's husband, Donald Short, Sr.  The 
 
            decedent, Donald Short, Sr., will be hereinafter referred to 
 
            as Donald.
 
            
 
                 Donald was born in June 1936.  He was 51 at the time of 
 
            the alleged work injury.  He had an eleventh grade education 
 
            but received his GED in military service as a young man.  
 
            Donald was an over-the-road truck driver.  Prior to the 
 
            alleged work injury in this case, he had been driving a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            truck since 1979, both as an employee and as an "owner 
 
            operator."
 
            
 
                 Although Donald had a long-standing coronary artery 
 
            disease condition, neither this disease nor any other 
 
            disease caused him any serious health problems until 1977 
 
            when he suffered a heart attack.  When his condition 
 
            stabilized after the heart attack, Donald underwent bypass 
 
            heart surgery in April of 1978.  Following recovery from the 
 
            surgery, Donald returned to truck driving.  He began working 
 
            as an owner/operator with B & T Trucking in 1986.  It was 
 
            while driving his truck for B & T that Donald suffered a 
 
            second heart attack *****.
 
            
 
                 *****
 
            
 
                 Two days before the heart attack, while en route to 
 
            Laredo, Texas, Donald arrived in his truck with claimant at 
 
            their daughter's place of residence in Texas in the early 
 
            morning hours of April 16, 1988.  Donald and claimant had 
 
            driven straight from Denver, Colorado the morning before.  
 
            Although she never drove the truck, claimant usually rode 
 
            with Donald during his road trips.  During most of the day 
 
            of April 16, 1988, Donald slept at his daughter's home 
 
            stating that he was very tired.  He and claimant left on the 
 
            last leg of their trip at approximately 8:00 a.m. on April 
 
            17, 1988.  They arrived in Laredo, Texas at approximately 
 
            10:30 p.m. on the evening of April 17, 1988.  Both Donald 
 
            and claimant then slept in the cab that night and claimant 
 
            awoke at 8:30 a.m.  At that time, she went to the bathroom 
 
            and observed her husband standing between two truck trailers 
 
            observing their trailer being unloaded by the usual persons 
 
            who unload trucks at this destination.  She stated that 
 
            Donald probably had arisen much earlier that morning because 
 
            he had to drive the truck to the weight scales a few miles 
 
            away and then return for the unloading process.  The 
 
            terminal opened that day at 8:00 a.m.  Claimant said that 
 
            she never observed Donald unloading the truck himself.  It 
 
            is unlikely that Donald did actually unload the truck 
 
            according to witnesses at the scene.  After the unloading 
 
            process was completed, Donald drove his truck to the 
 
            weighing scales and returned to complete the paperwork on 
 
            the load.  Donald then told claimant to go into a nearby 
 
            restaurant and order breakfast.  According to claimant, 
 
            Donald then began to stack pallets in the truck.  There was 
 
            a dispute as to whether this actually occurred as the bill 
 
            of lading for the load indicated that pallets were not used 
 
            for the freight.  *****  It is not unusual for empty pallets 
 
            to be carried in the front of a trailer when the loads were 
 
            not using them.  Also, it was common to re-stack pallets in 
 
            the truck prior to washing out the trailer which was usually 
 
            done after unloading.  *****  The pallets were constructed 
 
            with heavy oak wood and weighed from 70 to 80 pounds each.  
 
            A trailer commonly carried 24 pallets.  Claimant stated that 
 
            her husband did the stacking while she was waiting for the 
 
            breakfast order, approximately 30 to 40 minutes.  
 
            [Claimant's claim for workers' compensation benefits filed 
 
            in Texas did not mention decedent lifting pallets.  She also 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            testified that she was not present when the pallets were 
 
            allegedly stacked but she saw decedent begin to stack the 
 
            pallets.]
 
            
 
                 Claimant testified that the day was hot and the trailer 
 
            inside was hot while Donald was re-stacking the pallets 
 
            despite the fact that the load that had been unloaded was a 
 
            refrigerated load.  Claimant's testimony is also accepted on 
 
            this matter as the evidence established that it was common 
 
            to turn off the refrigeration units during unloading.  It 
 
            took approximately a couple of hours to unload the load and 
 
            then Donald still had to drive the truck to the scales a few 
 
            miles away for weighing after unloading and then return to 
 
            the terminal.  Certainly, the trailer had ample time to warm 
 
            up.
 
            
 
                 After her husband came into the restaurant that 
 
            morning, claimant stated that he appeared pale and sweaty.  
 
            She said that her husband complained of being tired and of 
 
            being hot.  He then called his dispatcher at B & T.  During 
 
            this conversation with the dispatcher, Donald had a heated 
 
            argument.  This was not uncommon for Donald to argue with 
 
            the dispatcher about load assignments.  Donald then returned 
 
            to his wife a few minutes later to eat breakfast.  He then 
 
            stated to claimant that he felt dizzy and that he may be 
 
            having another heart attack but this time without the pain.
 
            
 
                 Claimant then had her husband lie down in the booth and 
 
            an ambulance was called which transported Donald to the 
 
            hospital for treatment.  At the hospital, Donald was treated 
 
            for ventricular fibrillation by family practice physician 
 
            Luis M. Benavides, M.D.  [There are indications in the 
 
            record that admission into the hospital would have been at 
 
            about noon.]  After medication failed to alleviate the 
 
            problem, electric shock therapy was used which successfully 
 
            brought Donald's fibrillating heart back to sinus or normal 
 
            rhythm.  Donald remained in the Laredo Hospital a few days 
 
            and was then flown home to Sioux City, Iowa for additional 
 
            hospital treatment.  While in the Sioux City Hospital, 
 
            Donald was treated by his family physician, Thomas Gary, 
 
            M.D.  The final diagnosis of Dr. Benavides was myocardial 
 
            infarction and tachycardia with hypertension.  Dr. Gary did 
 
            not add significantly to this diagnosis.
 
            
 
                 After his condition was stabilized, Donald was released 
 
            from the hospital and told to gradually increase his 
 
            activity by Dr. Gary.  At the time of the release it was 
 
            felt that Donald would be able to return to truck driving.  
 
            Donald returned to Dr. Gary in August 1988 for further 
 
            testing.  The results of this testing indicated that Donald 
 
            had a chronic abnormal heart rhythm and Dr. Gary recommended 
 
            that he not return to truck driving.  Donald followed this 
 
            advice and ended his truck driving career at that time.
 
            
 
                 On September 8, 1988, according to Dr. Gary, Donald 
 
            collapsed from another fibrillation of the heart after a 
 
            heated discussion in a truck repair shop.  At this time, 
 
            Donald was again hospitalized and aggressively treated to 
 
            normalize the heart rhythm.  Again, shock therapy was used 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            which stabilized Donald's condition and he was again 
 
            released to return home.  [Dr. Gray indicated that his 
 
            diagnosis in September 1988 was different than it was after 
 
            the April 1988 episode and that decedent's condition was 
 
            life threatening in September.  He also indicated that even 
 
            after the later diagnosis the condition was not permanent.]
 
            
 
                 In October 1988, Donald received evaluation and 
 
            treatment from the Veterans Hospital in Sioux Falls, South 
 
            Dakota for approximately one week.  He was released to 
 
            return home on October 7.  The next morning, he suffered 
 
            another heart attack or fibrillation event and died soon 
 
            thereafter.  *****  Prior to this last heart attack, Donald 
 
            had been sleeping.
 
            
 
                 *****  A board certified internist with emphasis on 
 
            cardiopulmonary diseases, Paul From, M.D., specifically 
 
            opined in his deposition testimony that Donald's heart 
 
            attack and death were not work related.  Although Dr. From 
 
            is a board certified internist, his opinions were not solely 
 
            relied upon in this decision.  Claimant's failure in this 
 
            case to show a work injury also stems from her reliance upon 
 
            the answers to hypothetical questions posed to Dr. Benavides 
 
            and Dr. Gary.  Both doctors related the heart attack of 
 
            April 1988 to the work Donald was performing immediately 
 
            prior to the event but based their opinions upon assumptions 
 
            contained in a lengthy hypothetical question.  
 
            Unfortunately, claimant failed to establish in the evidence 
 
            many of these assumptions.
 
            
 
                 In the hypothetical which was posed identically to both 
 
            doctors, it was assumed that claimant was 51 years of age, 
 
            married and weighed 220 pounds.  It was assumed that he 
 
            smoked one and one-half packs of cigarettes per day and had 
 
            bypass surgery in 1978.  It was assumed that there was no 
 
            significant difficulties since the bypass surgery prior to 
 
            the events of April 18, 1988.  It was assumed that a stress 
 
            test conducted in October 1987 placed no restrictions on 
 
            Donald's activities.  It was assumed that Donald had an 
 
            eleventh grade education and his occupation over the last 
 
            several years prior to his death was over-the-road truck 
 
            driving.  It was assumed that Donald had ongoing financial 
 
            problems and had been taking medication.  It was also 
 
            assumed that he was over weight and that just prior to April 
 
            18, 1988, had been driving 10 to 20 hours at one time.  It 
 
            was further assumed that he had a physical in February 1988 
 
            which revealed no problems.  It was also assumed that during 
 
            the last several weeks prior to April 18, 1988, that Donald 
 
            had an increased work load which included driving up to 650 
 
            miles per day and working an average six to seven days per 
 
            week and sometimes he drove for a period of 24 hours 
 
            straight.  It was assumed that at 8:00 a.m. on April 18, 
 
            1988, he was either overseeing the unloading process or was 
 
            himself stacking pallets in the back of the truck.  It was 
 
            further assumed that he was working in a warm trailer for 
 
            approximately one hour at 100 degrees temperature outside.  
 
            It was further assumed on April 18, 1988 that he had 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            dizziness, that he was pale, sweaty, tired while stacking 
 
            the pallets, and that afterwards he was very hot and sweaty.  
 
            It was assumed that he had a long distance call in which he 
 
            argued with the dispatcher for approximately five minutes 
 
            and became agitated and very angry.  It was assumed that he 
 
            was unable to eat thereafter and had other dizzy spells 
 
            thereafter.  It was assumed that he had other dizzy spells 
 
            during the several weeks before the incident and was very 
 
            tired the day before.
 
            
 
                 However, it was established that Donald had significant 
 
            problems since the bypass surgery.  There was evidence that 
 
            he had problems with dizziness and his daughter testified 
 
            that he was taking nitroglycerin tablets in February only a 
 
            few weeks before his April 1988 heart attack.  There was no 
 
            evidence that Donald had ongoing financial problems.  
 
            Claimant failed to demonstrate that during the last several 
 
            weeks he had an increased workload as compared to prior 
 
            weeks.  Although he had been working six to seven days per 
 
            week, there doesn't appear to be evidence that he drove a 
 
            truck for 24 hours straight.  It was assumed that Donald was 
 
            suffering from sleep deprivation at the time of the heart 
 
            attack, but the evidence established he had several hours of 
 
            sleep almost immediately prior to the heart attack that 
 
            morning.  What was quite damaging to claimant's case was the 
 
            testimony of Dr. Benavides.  He said that the assumption 
 
            that Donald had no symptoms prior to the April 1988 heart 
 
            attack was significant in forming his opinions.  Dr. 
 
            Benavides stated that the taking of nitroglycerine tablets 
 
            in February 1988 would indicate to him that Donald did have 
 
            significant symptoms prior to 1988.  Claimant's counsel in 
 
            redirect examination attempted to reconstruct Dr. Benavides' 
 
            opinion testimony by asking if anything brought up by 
 
            defense counsel would change his opinion.  Dr. Benavides' 
 
            answer was that his opinions would not change "given the 
 
            assumptions that were made."
 
            
 
                 *****
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant apparently seeks medical benefits, weekly 
 
            benefits, and death benefits from decedent's heart attack on 
 
            April 18, 1988.  The depositive issue is whether decedent 
 
            sustained an injury that arose out of and in the course of 
 
            his employment on April 18, 1988.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  Thcontri-bution in the form of a 
 
                      previously weakened or diseased heart, 
 
                      the employment contri-bution must take 
 
                      the form of an exertion greater than 
 
                      that of nonemployment life.
 
            
 
            * * * Note that the comparison is not 
 
            with this employee's usual exertion in 
 
            his employment but with the exertions of 
 
            normal nonemployment life of this or any 
 
            other person."  (Emphasis in the 
 
            original.)
 
            
 
                 (Citations omitted.)
 
            
 
                    In the second situation compensation is allowed 
 
                 when the medical testimony shows an instance of 
 
                 unusually strenuous employment exertion, imposed 
 
                 upon a pre-existing diseased condition, results in 
 
                 a heart injury.
 
            
 
                 A third possible legal standard comes from language in 
 
            Sondag, 220 N.W.2d 903, and Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407, 409 (Iowa 1984).
 
            
 
                 This challenge appears to be tied to our reference 
 
                 in Sondag, 220 N.W.2d at 905, to the following 
 
                 observations expressed in 1A A. Larson, The Law of 
 
                 Workmen's Compensation section 38.64(c), at 7-145 
 
                 (1972):
 
            
 
                      The most obvious relevance of this 
 
                      element [continuing exertion after 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                      symptoms] is in showing causal 
 
                      connection between the obligations of 
 
                      the employment and the final injury; for 
 
                      if the workman, for some reason, feels 
 
                      impelled to continue with his duties 
 
                      when, but for these duties, he could and 
 
                      would have gone somewhere to lie down at 
 
                      once, the causal contribution of the 
 
                      employ-ment to the aggravation of the 
 
                      condition is clear.
 
            
 
                 The first issue to be determined in deciding the 
 
            instant case is whether claimant has proved that one of the 
 
            standards of the legal test has been satisfied.
 
            
 
                 The first standard of the legal test is whether 
 
            decedent's work exertions were greater than exertions of 
 
            normal nonemployment life.  It was claimant's uncontradicted 
 
            but uncorroborated testimony that it was hot on the date of 
 
            the alleged injury, April 18, 1988.  However, the decedent 
 
            would have engaged in the alleged work activities sometime 
 
            between 8:00 a.m. and 11:00 a.m.  Claimant alleges that 
 
            decedent stacked 24 pallets weighing 70-80 pounds in a 30 to 
 
            45 minute time period.  She however testified that she 
 
            didn't see him stack all the pallets.  It was also revealed 
 
            on cross-examination that the bill of lading indicates that 
 
            decedent's trailer would not have had pallets as no pallets 
 
            were used for the product unloaded from the truck.  Decedent 
 
            did not unload the truck.  Claimant did not mention that 
 
            decedent stacked pallets when seeking workers' compensation 
 
            benefits in Texas.  It is impossible to say whether decedent 
 
            actually stacked the pallets or how far he would have had to 
 
            move them or how high he would have had to lift them, if at 
 
            all, or how many he would have lifted if he stacked them.  
 
            Claimant only testified she saw decedent begin to stack the 
 
            pallets but did not say how many she saw him stack.  It 
 
            cannot be said that decedent stacked the pallets as claimant 
 
            alleges. 
 
            
 
                 Even if decedent did stack the pallets it is impossible 
 
            to tell whether his exertions were greater than normal 
 
            nonemployment life.  For example, if decedent carried all 
 
            the pallets the full length of a semi-trailer he would have 
 
            carried them a short distance.  Given the number of pallets 
 
            alleged to be moved in the time involved he only would have 
 
            moved a pallet every one to two minutes.  Normal 
 
            nonemployment life has some exertion.  Life is not normally 
 
            devoid of physical activity.  It cannot be said from this 
 
            record that decedent's work activities on April 18, 1988 
 
            exceeded exertions of normal nonemployment life.
 
            
 
                 Claimant has not proved that decedent's exertions on 
 
            April 18, 1988 were greater than the exertions of normal 
 
            nonemployment life.  Thus, claimant has not satisfied the 
 
            first standard of the legal test.
 
            
 
                 The second standard of the legal test is whether 
 
            decedent's work exertions were greater than normal work.  
 
            The testimony of the claimant, including the allegations of 
 
            stacking the pallets, indicates that all of the activities 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            of decedent were normal work activities.  Also, had decedent 
 
            stacked pallets, claimant indicated that was normal work.  
 
            Claimant has not proved the second standard of the legal 
 
            test.
 
            
 
                 As regards to the first and second standard of the 
 
            legal test it is impossible to say what extent, if any, 
 
            decedent's anger from the conversation with the dispatcher 
 
            played.  The record offers little evidence of the extent or 
 
            cause or regularity or nature of decedent's anger.
 
            
 
                 The third standard of the legal test is whether 
 
            decedent felt impelled to continue working after the onset 
 
            of a possible heart attack.  Claimant clearly has also not 
 
            proved this standard.  There was no evidence decedent 
 
            continued working after the onset of symptoms.  To the 
 
            contrary, decedent laid down and received medical treatment 
 
            when he voiced complaints.  Also, there was no evidence 
 
            decedent was impelled to continue working even if he had 
 
            worked after the onset of symptoms.
 
            
 
                 Claimant's reliance upon Hanson v. Reichelt, 452 N.W.2d 
 
            164 (Iowa 1990) is misplaced.  That case is not applicable 
 
            to heart attack cases.  The court clearly limited its 
 
            holding in that case to heatstroke cases.
 
            
 
                 Claimant has not proved any of the standards of the 
 
            legal test.  Claimant has not met the legal test.  
 
            Decedent's heart attack did not arise out of and in the 
 
            course of his employment.
 
 
 
                 The second issue to be determined in deciding the 
 
            instant case is whether claimant has proved by medical 
 
            evidence that medical test has been satisfied.  The claimant 
 
            must prove that the work exertions in fact caused the heart 
 
            attack.
 
            
 
                 Claimant must satisfy both the legal and the medical 
 
            tests.  Because claimant has not satisfied the legal test, 
 
            consideration of the medical test will be for discussion 
 
            purposes only.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. From opined that decedent's heart attack and death 
 
            were not work related.  The opinions of Drs. Benavides and 
 
            Gray were based upon assumptions not established in the 
 
            evidence and are as a result not reliable.  There does not 
 
            appear to be any reliable medical opinion that would 
 
            causally relate the April 1988 heart attack with decedent's 
 
            work.  Claimant has not satisfied the medical test.
 
            
 
                 In summary, claimant has met neither the legal test nor 
 
            the medical test for proving decedent's heart attack on 
 
            April 18, 1988 arose out of and in the course of his 
 
            employment.  Decedent's heart attack of April 18, 1988 did 
 
            not arise out of and in the course of his employment.
 
            
 
                 Clearly, decedent's death did not arise out of and in 
 
            the course of his employment.  The fatal heart attack 
 
            occurred in October 1988.  Decedent had not worked for that 
 
            alleged employer since April 1988.  Thus, the claimant has 
 
            not met any of the standards of the legal test discussed 
 
            above.  Likewise, claimant has not met the medical test.  No 
 
            reliable medical opinion causally relates the fatal heart 
 
            attack to decedent's work.  Dr. Gray even indicated that 
 
            there was a different diagnosis in September 1988.  Also, 
 
            decedent had collapsed from another fibrillation of the 
 
            heart after a heated discussion in a repair shop in 
 
            September 1988.
 
            
 
                 Because claimant did not prove that decedent's heart 
 
            attack in April 1988 was a work injury, it cannot be said 
 
            that the fatal heart attack was a consequence that naturally 
 
            and proximately flowed from an alleged work injury.
 
            
 
                 Claimant has not proved that decedent's fatal heart 
 
            attack arose out of and in the course of his employment.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
                 That claimant shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. John P. Loughlin
 
            Attorney at Law
 
            P.o. Box 398
 
            Cherokee, Iowa 51012
 
            
 
            Mr. James M. Cosgrove
 
            Mr. M. James Daley
 
            Attorneys at Law
 
            P.O. Box 1828
 
            Sioux City, Iowa 51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
                 
 
            
 
 
         
 
 
 
 
 
                                             1100; 1108.10; 2202
 
                                             Filed September 30, 1992
 
                                             Byron K. Orton
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         DELORES SHORT, ADMINISTRATOR    :
 
         and SURVIVING SPOUSE OF         :
 
         DONALD E. SHORT, SR.,           :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :       File No. 881070
 
         B & T TRUCKING, INC.,           :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         CIGNA INSURANCE and             :
 
         HARTFORD INSURANCE COMPANY,     :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         1100; 1108.10; 2202
 
         Claimant must satisfy both a legal test and a medical test in 
 
         order to prove that a heart attack superimposed upon a 
 
         preexisting condition arose out of and in the course of 
 
         employment.  The legal test can be satisfied by meeting one of 
 
         three legal standards:  work exertion greater than nonemployment 
 
         life; work exertion greater than normal work exertion; or 
 
         employee impelled to continue exertion after onset of symptoms.  
 
         The medical test is satisfied if medical evidence shows that the 
 
         exertion in fact caused the heart attack.
 
         From the record in this case it was impossible to tell whether 
 
         decedent's work activities on the date of the first attack in 
 
         question was greater than nonemployment normal life.  It was 
 
         unclear whether decedent actually stacked 24 pallets weighing 
 
         70-80 pounds in a 30-45 minute time period.  Even if he had 
 
         stacked the pallets it was unclear how far he had to carry them 
 
         or if he had to lift them.  The decedent's work activity, even if 
 
         it included stacking the pallets was not greater than normal work 
 
         exertion.  Decedent received medical care immediately after the 
 
         onset of symptoms.  He did not continue working and did not feel 
 
         impelled to continue working.  Claimant met none of the standards 
 
         of the legal test.  There was no reliable medical evidence that 
 
         causally related decedent's work activity and the heart attack.  
 
         Medical opinions based upon erroneous hypothetical were rejected.
 
         Decedent suffered a fatal heart attack five months later.  He had 
 
         not returned to work.  The fatal heart attack also did not arise 
 
         out of and in the course of his employment.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELORES SHORT, ADMINISTRATOR  :
 
            and SURVIVING SPOUSE OF DONALD:
 
            E. SHORT, SR.,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 881070
 
            B & T TRUCKING, INC.,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE and           :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Delores 
 
            Short, claimant, against B & T Trucking, Inc., employer 
 
            (hereinafter referred to as B & T), and its alleged insur
 
            ers, Cigna Insurance and Hartford Insurance Company, defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged injury on April 18, 1988.  On June 4, 1991, a hear
 
            ing was held on claimant's petition and the matter was con
 
            sidered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.  
 
            Objections to proposed exhibits at hearing were overruled.
 
            
 
                 Claimant's motion for default made during and after the 
 
            hearing is denied.  All defendants have filed timely answers 
 
            and are represented by counsel.  The interesting issue of 
 
            whether the undersigned can or should hear a coverage issue 
 
            between and Cigna and its alleged insured, B & T Trucking, 
 
            while being represented by the same counsel is moot given 
 
            the results of this decision.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether an employer-employee relationship existed 
 
            between the claimant and the alleged defendant employer at 
 
            the time of the alleged injury;
 
            
 
                  II.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity and/or death benefits; and,
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility as well as the cred
 
            ibility of her supportive witnesses at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability as well as the nature of the relationship 
 
            between decedent and B & T Trucking.  From her demeanor 
 
            while testifying, claimant is found credible as well as all 
 
            the other witnesses who testified at the hearing.
 
            
 
                 This claim originates from a heart attack and eventual 
 
            death of claimant's husband, Donald Short, Sr.  The dece
 
            dent, Donald Short, Sr., will be hereinafter referred to as 
 
            Donald.
 
            
 
                 Donald was born in June 1936.  He was 51 at the time of 
 
            the alleged work injury.  He had an eleventh grade education 
 
            but received his GED in military service as a young man.  
 
            Claimant was an over-the-road truck driver.  Prior to the 
 
            alleged work injury in this case, he had been driving a 
 
            truck since 1979, both as an employee and as an "owner 
 
            operator."
 
            
 
                 Although Donald had a long-standing coronary artery 
 
            disease condition, neither this disease or any other disease 
 
            caused him any serious health problems until 1977 when he 
 
            suffered a heart attack.  When his condition stabilized 
 
            after the heart attack, Donald underwent bypass heart 
 
            surgery in April of 1978.  Following recovery from the 
 
            surgery, Donald returned to truck driving.  He began working 
 
            as an owner/operator with B & T Trucking in 1986.  It was 
 
            while driving his truck for B & T that Donald suffered a 
 
            second heart attack that ended his driving career.
 
            
 
                 After careful consideration of the written and oral 
 
            evidence presented, claimant failed to establish that her 
 
            husband suffered a work injury at the time of the alleged 
 
            heart attack on April 18, 1988, which arose out of and in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the course of employment.  This heart attack involved a 
 
            myocardio infarction subsequent to ventricular fibrillation 
 
            which occurred after performing his work duties as a truck 
 
            driver.  However, claimant failed to causally connect this 
 
            medical event to the work Donald was performing.
 
            
 
                 Two days before the heart attack, while en route to 
 
            Laredo, Texas, Donald arrived in his truck with claimant at 
 
            their daughter's place of residence in Texas in the early 
 
            morning hours of April 16, 1988.  Donald and claimant had 
 
            driven straight from Denver, Colorado the morning before.  
 
            Although she never drove the truck, claimant usually rode 
 
            with Donald during his road trips.  During most of the day 
 
            of April 16, 1988, Donald slept at his daughter's home 
 
            stating that he was very tired.  He and claimant left on the 
 
            last leg of their trip at approximately 8:00 a.m. on April 
 
            17, 1988.  They arrived in Laredo, Texas at approximately 
 
            10:30 p.m. on the evening of April 17, 1988.  Both Donald 
 
            and claimant then slept in the cab that night and claimant 
 
            awoke at 8:30 a.m.  At that time, she went to the bathroom 
 
            and observed her husband standing between two truck trailers 
 
            observing their trailer being unloaded by the usual persons 
 
            who unload trucks at this destination.  She stated that 
 
            Donald probably had arisen much earlier that morning because 
 
            he had to drive the truck to the weight scales a few miles 
 
            away and then return for the unloading process.  The termi
 
            nal opened that day at 8:00 a.m.  Claimant said that she 
 
            never observed Donald unloading the truck himself.  It is 
 
            unlikely that Donald did actually unload the truck according 
 
            to witnesses at the scene.  After the unloading process was 
 
            completed, Donald drove his truck to the weighing scales and 
 
            returned to complete the paperwork on the load.  Donald then 
 
            told claimant to go into a nearby restaurant and order 
 
            breakfast.  According to  claimant, Donald then began to 
 
            stack pallets in the truck.  There was a dispute as to 
 
            whether this actually occurred as the bill of lading for the 
 
            load indicated that pallets were not used for the freight.  
 
            However, claimant actually saw her husband stacking pallets 
 
            in this truck and this testimony is accepted as true.  It is 
 
            not unusual for empty pallets to be carried in the front of 
 
            a trailer when the loads were not using them.  Also, it was 
 
            common to restack pallets in the truck prior to washing out 
 
            the trailer which was usually done after unloading.  It is 
 
            found that the stacking of the pallets was heavy work as the 
 
            pallets were constructed with heavy oak wood and weighed 
 
            from 70 to 80 pounds each.  A trailer commonly carried 24 
 
            pallets.  Claimant stated that her husband did the stacking 
 
            while she was waiting for the breakfast order, approximately 
 
            30 to 40 minutes.
 
            
 
                 Claimant testified that the day was hot and the trailer 
 
            inside was hot while Donald was restacking the pallets 
 
            despite the fact that the load that had been unloaded was a 
 
            refrigerated load.  Claimant's testimony is also accepted on 
 
            this matter as the evidence established that it was common 
 
            to turn off the refrigeration units during unloading.  It 
 
            took approximately a couple of hours to unload the load and 
 
            then Donald still had to drive the truck to the scales a few 
 
            miles away for weighing after unloading and then return to 
 
            the terminal.  Certainly, the trailer had ample time to warm 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            up.
 
            
 
                 After her husband came into the restaurant that morn
 
            ing, claimant stated that he appeared pale and sweaty.  She 
 
            said that her husband complained of being tired and of being 
 
            hot.  He then called his dispatcher at B & T.  During this 
 
            conversation with the dispatcher, Donald had a heated argu
 
            ment.  This was not uncommon for Donald to argue with the 
 
            dispatcher about load assignments.  Donald then returned to 
 
            his wife a few minutes later to eat breakfast.  He then 
 
            stated to claimant that he felt dizzy and that he may be 
 
            having another heart attack but this time without the pain.
 
            
 
                 Claimant then had her husband lie down in the booth and 
 
            an ambulance was called which transported Donald to the hos
 
            pital for treatment.  At the hospital, Donald was treated 
 
            for ventricular fibrillation by family practice physician 
 
            Luis M. Benavides, M.D.  After medication failed to allevi
 
            ate the problem, electric shock therapy was used which suc
 
            cessfully brought Donald's fibrillating heart back to sinus 
 
            or normal rhythm.  Donald remained in the Laredo Hospital a 
 
            few days and was then flown home to Sioux City, Iowa for 
 
            additional hospital treatment.  While in the Sioux City 
 
            Hospital, Donald was treated by his family physician, Thomas 
 
            Gary, M.D.  The final diagnosis of Dr. Benavides was myocar
 
            dial infarction and tachycardia with hypertension.  Dr. Gary 
 
            did not add significantly to this diagnosis.
 
            
 
                 After his condition was stabilized, Donald was released 
 
            from the hospital and told to gradually increase his activ
 
            ity by Dr. Gary.  At the time of the release it was felt 
 
            that Donald would be able to return to truck driving.  
 
            Donald returned to Dr. Gary in August 1988 for further test
 
            ing.  The results of this testing indicated that Donald had 
 
            a chronic abnormal heart rhythm and Dr. Gary recommended 
 
            that he not return to truck driving.  Donald followed this 
 
            advice and ended his truck driving career at that time.
 
            
 
                 On September 8, 1988, according to Dr. Gary, Donald 
 
            collapsed from another fibrillation of the heart after a 
 
            heated discussion in a truck repair shop.  At this time, 
 
            Donald was again hospitalized and aggressively treated to 
 
            normalize the heart rhythm.  Again, shock therapy was used 
 
            which stabilized Donald's condition and he was again 
 
            released to return home.
 
            
 
                 In October 1988, Donald received evaluation and treat
 
            ment from the Veterans Hospital in Sioux Falls, South Dakota 
 
            for approximately one week.  He was released to return home 
 
            on October 7.  The next morning, he suffered another heart 
 
            attack or fibrillation event and died soon thereafter.  
 
            According to all the physicians who rendered an opinion in 
 
            this matter, Donald's heart attack at that time was the 
 
            result of ventricular fibrillation or dysrhythmia, the same 
 
            problem he had experienced in these heart attacks prior to 
 
            that time.  Prior to this last heart attack, Donald had been 
 
            sleeping.
 
            
 
                 Claimant's inability to show the work relatedness of 
 
            the April 1988 heart attack and claimant's eventual death 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            was due to a lack of supportive expert medical opinion.  A 
 
            board certified internist with emphasis on cardiopulmonary 
 
            diseases, Paul From, M.D., specifically opined in his depo
 
            sition testimony that Donald's heart attack and death were 
 
            not work related.  Although Dr. From is a board certified 
 
            internist, his opinions were not solely relied upon in this 
 
            decision.  Claimant's failure in this case to show a work 
 
            injury also stems from her reliance upon the answers to 
 
            hypothetical questions posed to Dr. Benavides and Dr. Gary.  
 
            Both doctors related the heart attack of April 1988 to the 
 
            work Donald was performing immediately prior to the event 
 
            but based their opinions upon assumptions contained in a 
 
            lengthy hypothetical question.  Unfortunately, claimant 
 
            failed to establish in the evidence many of these 
 
            assumptions.
 
            
 
                 In the hypothetical which was posed identically to both 
 
            doctors, it was assumed that claimant was 51 years of age, 
 
            married and weighed 220 pounds.  It was assumed that he 
 
            smoked one and one half packs of cigarettes per day and had 
 
            bypass surgery in 1978.  It was assumed that there was no 
 
            significant difficulties since the bypass surgery prior to 
 
            the events of April 18, 1988.  It was assumed that a stress 
 
            test conducted in October 1987 placed no restrictions on 
 
            claimant's activities.  It was assumed that Donald had an 
 
            eleventh grade education and his occupation over the last 
 
            several years prior to his death was over-the-road truck 
 
            driving.  It was assumed that Donald had ongoing financial 
 
            problems and had been taking medication.  It was also 
 
            assumed that he was over weight and that just prior to April 
 
            18, 1988, had been driving 10 to 20 hours at one time.  It 
 
            was further assumed that he had a physical in February 1988 
 
            which revealed no problems.  It was also assumed that during 
 
            the last several weeks prior to April 18, 1988, that Donald 
 
            had an increased work load which included driving up to 650 
 
            miles per day and working an average six to seven days per 
 
            week and sometimes he drove for a period of 24 hours 
 
            straight.  It was assumed that at 8:00 a.m. on April 18, 
 
            1988, he was either overseeing the unloading process or was 
 
            himself stacking pallets in the back of the truck.  It was 
 
            further assumed that he was working in a warm trailer for 
 
            approximately one hour at 100 degrees temperature outside.  
 
            It was further assumed on April 18, 1988, that he had dizzi
 
            ness, that he was pale, sweaty, tired while stacking the 
 
            pallets, and that afterwards he was very hot and sweaty.  It 
 
            was assumed that he had a long distance call in which he 
 
            argued with the dispatcher for approximately five minutes 
 
            and became agitated and very angry.  It is assumed that he 
 
            was unable to eat thereafter and had other dizzy spells 
 
            thereafter.  It assumed that he had other dizzy spells dur
 
            ing the several weeks before the incident and was very tired 
 
            the day before.
 
            
 
                 However, it was established that Donald had significant 
 
            problems since the bypass surgery.  There was evidence that 
 
            he had problems with dizziness and his daughter testified 
 
            that he was taking nitroglycerin tablets in February only a 
 
            few weeks before his April 1988 heart attack.  There was no 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            evidence that Donald had ongoing financial problems.  
 
            Claimant failed to demonstrate that during the last several 
 
            weeks he had an increased workload as compared to prior 
 
            weeks.  Although he had been working six to seven days per 
 
            week, there doesn't appear to be evidence that he drove a 
 
            truck for 24 hours straight.  It was assumed that Donald was 
 
            suffering from sleep deprivation at the time of the heart 
 
            attack, but the evidence established he had several hours of 
 
            sleep almost immediately prior to the heart attack that 
 
            morning.  What was quite damaging to claimant's case was the 
 
            testimony of Dr. Benavides.  He said that the assumption 
 
            that Donald had no symptoms prior to the April 1988 heart 
 
            attack was significant in forming his opinions.  Dr. 
 
            Benavides stated that the taking of nitroglycerine tablets 
 
            in February 1988, would indicate to him that Donald did have 
 
            significant symptoms prior to 1988.  Claimant's counsel in 
 
            redirect examination attempted to reconstruct Dr. Benavides' 
 
            opinion testimony by asking if anything brought up by 
 
            defense counsel would change his opinion.  Dr. Benavides' 
 
            answer was that his opinions would not change "given the 
 
            assumptions that were made."
 
            
 
                 In any event, there does not appear to be any medical 
 
            opinion that would causally relate the April 1988 heart 
 
            attack with the other subsequent heart attacks and espe
 
            cially the heart attack that led to Donald's death.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In work injuries involving the heart, Iowa claimants 
 
            with preexisting circulatory or heart conditions are permit
 
            ted, upon proper medical proof, to recover workers' compen
 
            sation benefits only when the employment contributes some
 
            thing substantial to increase the risk of injury or death.  
 
            The employment contribution must take the form of an exer
 
            tion greater than nonemployment life.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974).  The comparison, how
 
            ever, is not with the employee's usual exertion in his 
 
            employment but with the exertions of normal nonemployment 
 
            life of this or any other person.  Id.  These exertions may 
 
            be physical or emotional.  Swalwell v. William Knudson & 
 
            Son, Inc., II Iowa Industrial Commissioner Reports 385 
 
            (Appeal Decision 1982).  The Sondag rule is favored by 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Professor Larson in his treatise on workers' compensation.  
 
            See IA Larson, Workmen's Compensation Law, section 38.83 at 
 
            pages 7-172.  According to Professor Larson, the causative 
 
            test is a two part analysis.  First, there is a medical cau
 
            sation test in which the medical experts must be relied upon 
 
            to causally relate the alleged stress (emotional or 
 
            physical) to the heart injury.  Second, there is a legal 
 
            causation test to determine if the medically related stress 
 
            is more than the stress of everyday nonemployment life.
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 In the case sub judice, claimant failed the first medi
 
            cal causation test as set forth in the Larson analysis.  The 
 
            greater weight of evidence appeared to lie with the defense 
 
            in this case.
 
            
 
                 As claimant has failed to show a work injury, there is 
 
            no need to deal with the other interesting issues in this 
 
            case involving the alleged employer/employee relationship 
 
            and the numerous insurance coverage issues.
 
            
 
                 Claimant, however, is awarded costs as her claim is 
 
            arguable and she appeared honest and forthright at hearing.  
 
            Each defendant insurer shall pay half of these costs.
 
            
 
                                      order
 
            
 
                 l.  Claimant's petition is dismissed with prejudice and 
 
            she will take nothing from these proceedings.
 
            
 
                 2.  Defendants, Cigna and Hartford, shall equally pay 
 
            the costs of this action pursuant to rule 343 IAC 4.33, 
 
            including reimbursement to claimant for any filing fee paid 
 
            in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Mr. John P. Loughlin
 
            Attorney at Law
 
            231 Maple St
 
            P O Box 398
 
            Cherokee  IA  51012
 
            
 
            Mr. James M. Cosgrove
 
            Mr. M. James Daley
 
            Attorneys at Law
 
            1109 Badgerow Bldg
 
            P O Box 1828
 
            Sioux City  IA  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St  STE 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108.10
 
                           Filed July 22, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELORES SHORT, ADMINISTRATOR  :
 
            and SURVIVING SPOUSE OF DONALD:
 
            E. SHORT, SR.,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 881070
 
            B & T TRUCKING, INC.,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE and           :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1108.10
 
            Claimant failed to show medical causation between her 
 
            husband's work and his heart attack and eventual death.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY REEDER,                 :
 
                                          :         File No. 881071
 
                 Claimant,                :
 
                                          :         A T T O R N E Y
 
            vs.                           :
 
                                          :              F E E
 
            COX CABLE QUINT CITIES, INC., :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding brought by Terry Reeder against 
 
            Peter M. Soble under Iowa Code section 86.39 for the purpose 
 
            of determining the amount of attorney fees Soble is entitled 
 
            to receive for representing Reeder in his claim against the 
 
            employer.
 
            
 
                 The case was heard at Davenport, Iowa on November 13, 
 
            1990.  The evidence consists of testimony from Terry Reeder, 
 
            Peter M. Soble and Linda Soble, claimant's exhibits 1 and 2 
 
            and Soble's exhibits 1 through 11.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 On or about July 27, 1988, Terry Reeder engaged the 
 
            services of Peter M. Soble to pursue a workers' compensation 
 
            claim against Cox Cable Quint Cities, Inc., Reeder's former 
 
            employer.  The employer had not recognized Reeder's claim as 
 
            being compensable and Reeder had not been paid any benefits 
 
            on account of his claim.  Soble explained his fee 
 
            arrangement and Reeder signified his agreement by signing 
 
            the contingent fee agreement which is in evidence as Soble 
 
            exhibit 1.  The agreement provides for attorney fees in an 
 
            amount equal to 33 1/3 percent of the gross recovery.
 
            
 
                 The case proceeded through discovery.  The record of 
 
            this hearing does not contain any great detail regarding the 
 
            actions taken, although it appears that they were within the 
 
            range of normal litigation.  The employer steadfastly 
 
            refused to recognize the validity of the claim and refused 
 
            to pay any benefits to Reeder.  Soble exhibits 5 and 6 
 
            contain a medical history, apparently given by the claimant 
 
            to a physician, which seems to place the onset of his 
 
            symptomatology at a time and place which was not connected 
 
            with his employment.  That history was probably a large 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            factor in the employer's decision to deny the claim.
 
            
 
                 Soble engaged in negotiations with the attorney for the 
 
            employer, reached a tentative agreement with defense 
 
            counsel, and on June 2, 1989 notified Reeder of the progress 
 
            and recommended that Reeder approve the tentatively arranged 
 
            settlement (claimant's exhibit 1; Soble exhibit 8).  
 
            According to that letter, the settlement would provide an 
 
            amount equal to healing period compensation and 20 percent 
 
            permanent partial disability compensation.  That amount 
 
            would be within the range of a reasonable award if the case 
 
            had proceeded to hearing and the claimant were successful.  
 
            When the liability issue is considered, the settlement is 
 
            clearly within the range of reasonable.  It is specifically 
 
            noted that the case was settled as a special case settlement 
 
            under the provisions of Iowa Code section 85.35.
 
            
 
                 The letter of June 2, 1989 contained one substantial 
 
            error.  There was no actual agreement to pay Reeder's 
 
            outstanding medical expenses in addition to the $25,726.00.  
 
            When Soble and Reeder discussed the settlement and discussed 
 
            signing the settlement documents, Reeder was made aware of 
 
            the fact that no additional amount would be paid for medical 
 
            expenses, but he nevertheless agreed to the terms of the 
 
            settlement.  Reeder indicated at hearing that he felt 
 
            pressured into accepting the settlement by the provisions of 
 
            the contingent fee agreement which required him to pay fees 
 
            to Soble in the event a settlement was declined and also by 
 
            the interest provisions of the contingent fee agreement.
 
            
 
                 The settlement documents were signed and submitted to 
 
            the Division of Industrial Services for approval.  Approval 
 
            was obtained on June 13, 1989.  On June 30, 1989, Soble made 
 
            disbursement of the settlement proceeds as shown in 
 
            claimant's exhibit 2.  The attorney fees of $8,585.15 
 
            compute to one-third of the gross recovery, the amount 
 
            indicated by the written contingent fee agreement.
 
            
 
                 Soble is an experienced workers' compensation attorney.  
 
            The services he performed and the results he obtained in 
 
            this case appear to be within the range of normal competency 
 
            for an experienced workers' compensation attorney.  The fee 
 
            of one-third of the gross recovery is at the upper extreme, 
 
            but it is within the range of fees commonly charged by 
 
            attorneys who represent claimants in workers' compensation 
 
            proceedings.
 
            
 
                 After the settlement was accomplished, Reeder spoke 
 
            with another attorney who informed him that the amount of 
 
            Soble's fee was extraordinarily high and that a more common 
 
            fee would have been 20 percent of the recovery.  Reeder also 
 
            became dissatisfied with the amount of his recovery.  This 
 
            contested case proceeding to set fees was then commenced.
 
            
 
                 It is specifically found that an amount equal to 
 
            one-third of the gross recovery, the amount which Soble 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            received in this case, is a reasonable fee for the services 
 
            provided by Soble in this case.  The terms of the contingent 
 
            fee agreement as they relate to the amount of the contingent 
 
            fee are not unreasonable.  It is specifically found that the 
 
            provisions for interest which do appear unreasonable were 
 
            not a material factor in causing Reeder to accept the 
 
            settlement offer, despite his testimony.
 
            
 
                                conclusions of law
 
            
 
                 Section 86.39 of The Iowa Code makes fees for services 
 
            provided by attorneys in workers' compensation cases subject 
 
            to the approval of this agency.  The factors to be 
 
            considered are well defined.  Kirkpatrick v. Patterson, 172 
 
            N.W.2d 259, 261 (Iowa 1969); Disciplinary Rule 2-106, Iowa 
 
            Code of Professional Responsibility for Lawyers.  When all 
 
            the material factors are considered, it is specifically 
 
            determined that the sum of $8,585.15 is a reasonable fee for 
 
            the services performed by Soble in this case.  The amount of 
 
            the fee provided by the contingent fee agreement is not 
 
            unreasonable.  The fact that the interest provisions of the 
 
            agreement are unreasonable does not require voiding or 
 
            negating the entire agreement.  Interest is not an issue in 
 
            this case.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Peter M. Soble is entitled 
 
            to a fee in this case in the amount of eight thousand five 
 
            hundred eighty-five and 15/100 dollars ($8,585.15).  The 
 
            entire amount of the authorized fee has been paid to Soble 
 
            through the distribution of the settlement proceeds on June 
 
            30, 1989.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the claimant, except for the cost of 
 
            the shorthand reporter who reported the hearing, which 
 
            expenses are assessed against Peter M. Soble pursuant to 343 
 
            IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Terry Reeder
 
            3409 44th Avenue
 
            Moline, Illinois  61265
 
            CERTIFIED AND REGULAR MAIL
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Peter M. Soble
 
            Attorney at Law
 
            505 Plaza Office Building
 
            Rock Island, Illinois  61201
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1000
 
                           Filed November 20, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            TERRY REEDER,  :
 
                      :         File No. 881071
 
                 Claimant, :
 
                      :         A T T O R N E Y
 
            vs.       :
 
                      :              F E E
 
            COX CABLE QUINT CITIES, INC., :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            5-1000
 
            Counsel authorized a one-third contingent fee based upon a 
 
            written fee agreement.