BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KAREN H. CHOATE, Surviving    :
 
            Spouse of Robert E. Choate,   :
 
            Deceased,                     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 882627
 
            IOWA DEPARTMENT OF            :
 
            TRANSPORTATION,               :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 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 October 31, 1990 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Decedent had been employed by the Iowa Department of 
 
            Transportation as a residence maintenance engineer.  He held 
 
            a license as an engineer with the State of Iowa but decedent 
 
            did not hold a bachelors' degree.
 
            
 
                 Decedent's office was in Grinnell where he resided.  He 
 
            was considered a managing engineer since his primary 
 
            function was to supervise nearly 70 people in maintaining 
 
            state highways.  Decedent was responsible for the 
 
            maintenance of part of Interstate 80, part of Highway 6, and 
 
            part of Highway 163.  Approximately 50-60 percent of his 
 
            duties were of the administrative or desk type duties [in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the office].  The remaining 40-50 percent consisted of [work 
 
            out of the office] on site inspections of varying degrees.  
 
            [(Respondent's Exhibit 19, pages 28-30)]  Some of the on 
 
            site inspections included routine, special or emergency 
 
            bridge inspections and personal inspections.
 
            
 
                 During calendar year 1987, decedent was required to 
 
            routinely inspect 58 bridges.  [(Resp. Ex. 20, p. 13, lines 
 
            9-16)] In addition, decedent was required to inspect bridges 
 
            in emergency situations.  According to decedent's 
 
            supervisor, Rodolfo L. Laudencia, an emergency inspection 
 
            was described as:
 
            
 
                 Q.  I would like you to explain the terminology 
 
                 you're going to use with respect to these.
 
            
 
                 A.  Special and emergency is not related to the 
 
                 type of inspection.  It is more related to the 
 
                 time of inspection.  Example, when I say emergency 
 
                 that is when a resident maintenance engineer gets 
 
                 a call out of working hours and since that 
 
                 inspection is done out of working hours it becomes 
 
                 then an emergency or a special type of inspection.
 
            
 
            [(Resp. Ex. 20, p. 11, ll. 8-15)]
 
            
 
                 Mr. Laudencia also described how an on-site inspection 
 
            was to be conducted.  He described the following manner with 
 
            which an inspection was to be conducted:
 
            
 
                 A.  As I have said awhile ago I would, of course, 
 
                 be in my State vehicle, a State car, drive to the 
 
                 particular site of that bridge I would inspect.  
 
                 Park it on the farther side of that bridge and 
 
                 proceed immediately to look at the top of that 
 
                 bridge.
 
            
 
                    In other words, we call it the bridge floor or 
 
                 the bridge deck.  And you look at it from hand 
 
                 rail to hand rail or you can call it concrete curb 
 
                 to concrete curb.  You look at the deck or the 
 
                 floor, see what deficiencies there are and if 
 
                 there are you have to note that in a particular 
 
                 form.
 
            
 
                    They call it SINA.  It's a defficiency [sic] 
 
                 intensive sort of inspection report that the 
 
                 federal government asks us to do.  Anyway you look 
 
                 at that.  Depending on what you find out, record 
 
                 that.
 
            
 
                 Q.  How do you record that?
 
            
 
                 A.  There is a form.  There is a form that comes 
 
                 from the federal government and you fill that out.
 
            
 
                 Q.  Okay.
 
            
 
                 A.  I don't know if you have a copy.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Q.  No, that's fine.
 
            
 
                 A.  Then after you do that you look at the 
 
                 approaches, the roadway approach to the bridge.  
 
                 Look for what type of deficiency you find in that 
 
                 approach--in those approaches.  You look at the 
 
                 guard rail which is approach to the bridge.
 
            
 
                    After you are done with the top of the bridge, 
 
                 then you go beneath the bridge.  You look at the 
 
                 foreslope which is the slope that goes down 
 
                 underneath the bridge.  You look at the beams.  
 
                 You look at the underdeck.
 
            
 
                    You look at the bearings.  You look at the 
 
                 bridge ends, the bridge seat.  See what kind of 
 
                 deficiency deteriation [sic] you have and mark 
 
                 that down, whatever you find out.  You look at the 
 
                 piers.  You look at the waterway if there is any 
 
                 waterway.  You look at the roadway if there is a 
 
                 roadway beneath it.  You look at all the 
 
                 approaches to that bridge.  Then note it down.
 
            
 
                 Q.  In doing these routine bridge inspections do 
 
                 you normally carry any equipment with you?
 
            
 
                 A.  Generally not.
 
            
 
                 Q.  No heavy transits or anything like that?
 
            
 
                 A.  Just pencil and the form.  Sometimes a tape 
 
                 recorder.
 
            
 
                 Q.  Would it be fair to characterize it as 
 
                 basically a visual inspection?
 
            
 
                 A.  Yes.
 
            
 
            [(Resp. Ex. 20, pp. 14-16)]
 
            
 
                 Three days prior to the date of his death, decedent had 
 
            been attending a mandatory snow conference in Des Moines.  
 
            The conference was a traveling seminar developed by federal 
 
            DOT and decedent had been required to cancel his family 
 
            vacation in order to attend.
 
            
 
                 On April 13, 1988, decedent returned to Grinnell from 
 
            the conference at approximately 6:00 p.m.  One of the 
 
            employees, Larry Pottridge, telephoned decedent during the 
 
            early morning hours of April 14, 1988.  The employee 
 
            reported a truck-bridge accident on Interstate 80 eastbound.  
 
            Mr. Pottridge advised decedent that certain of the bridge 
 
            posts had been struck and that the posts had broken after 
 
            the impact.  Mr. Pottridge feared the bridge had shifted.  
 
            As a result, he requested an emergency on-site inspection by 
 
            decedent.
 
            
 
                 Approximately 35 minutes later decedent arrived on the 
 
            scene.  His home had been 30 to 35 minutes [driving time] 
 
            from the accident site.  Mr. Pottridge was ***** surprised 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that decedent had arrived so quickly.  The bridge was 
 
            located over the Skunk River.  Decedent conducted a visual 
 
            inspection of the top of the bridge.  Then he and Pottridge 
 
            walked to the side of the wing wall.  *****  [Pottridge 
 
            indicated that there was a path along the wing wall and that 
 
            he would not classify the terrain as rough.  He said that he 
 
            would disagree with Laudencia's characterization of the 
 
            terrain.  Because Pottridge actually traveled the same 
 
            course as decedent, his description is more reliable.  Also, 
 
            his description is corroborated by photographs of the area.  
 
            (Respondent's Exs. D1-D4)  There was a drop of approximately 
 
            12 feet from the road surface to the underside of the 
 
            bridge.  Decedent and Pottridge walked part of the way down 
 
            the embankment.  The distance walked down the embankment was 
 
            approximately 25 feet.  Pottridge stated that neither he nor 
 
            the decedent had trouble walking up the embankment.  There 
 
            was a three to one slope on the embankment.  Decedent walked 
 
            about 500 feet to the other end of the bridge to inspect the 
 
            mud rail.  The temperature was described as chilly.  It had 
 
            been at least 60 degrees the day before.]  The inspection of 
 
            that area took approximately five minutes.  Decedent closed 
 
            one lane of traffic and then viewed the damaged truck.  Mr. 
 
            Pottridge heard a gasp and a grunt.  Decedent fell across 
 
            the median.  Efforts were made to revive decedent but they 
 
            were unsuccessful.  Decedent died that morning.
 
            
 
                 Decedent had a prior history of cardiac enlargement, 
 
            tobacco abuse, obesity and hypercholesterolemia.  He engaged 
 
            in only an occasional physical activity, such as golf.  
 
            Claimant maintained her husband worked from 6:30 a.m. to 
 
            6:00 p.m. each work day, and on Saturday mornings and Sunday 
 
            evenings.  The supervisor, Mr. Laudencia, described decedent 
 
            as a "loyal state employee" who had a "strong desire to 
 
            provide thorough problem analysis and reporting."  There was 
 
            conflicting evidence concerning problems between decedent 
 
            and his supervisor, prior to the date of decedent's death.
 
            
 
                 Thomas L. Bennett, M.D., the State Medical Examiner, 
 
            performed an autopsy on decedent's body.  In his report Dr. 
 
            Bennett determined:
 
            
 
                 At postmortem examination, the decedent was found 
 
                 to have an enlarged heart (470 grams, 
 
                 approximately 1 1/2 times the expected weight), 
 
                 with diffuse severe atherosclerotic coronary 
 
                 artery narrowing.  In my opinion, this man's death 
 
                 is a direct result of his atherosclerotic coronary 
 
                 artery disease, the hypertrophic cardiomyopathy 
 
                 (probably hypertensive) certainly being a 
 
                 contributing significant condition.
 
            
 
            [(Claimant's Ex. 2, p. 8)]
 
            
 
                 Decedent's medical records with his family physician, 
 
            David L. Ferguson, M.D., establish that claimant had not 
 
            seen his physician since January 3, 1985.  In his report of 
 
            September 7, 1988, Dr. Ferguson opined:
 
            
 
                 I have discussed the working conditions as well as 
 
                 the unusual work schedule with Mrs. Choate.  I 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 understand that Robert had an essentially 
 
                 desk-type job in which he supervised a number of 
 
                 employees and did engineering work in his office.  
 
                 He did travel in the area in his position as 
 
                 engineer.
 
            
 
                 In the days preceding his death, I understand Mr. 
 
                 Choate had been attending several days of meetings 
 
                 in Des Moines, including a late evening meeting 
 
                 the night before.  On Wednesday, April 13, 1988, 
 
                 he had returned to Grinnell and worked late in the 
 
                 office.  Then around 2:00 AM, he was called out of 
 
                 bed to drive about 30 miles to inspect a bridge at 
 
                 an accident scene involving a semi.  He had walked 
 
                 down a very steep incline and then had to walk up 
 
                 it again.  He collapsed shortly after this 
 
                 exertion.  He died shortly after that.
 
            
 
                 It is my best medical opinion that Mr. Choate's 
 
                 heart attack was precipitated by the stress from 
 
                 the climb.  It appears that the fatal heart attack 
 
                 arose out of and in the course of his employment.
 
            
 
                 I am not aware of any stressful activities by Mr. 
 
                 Choate off the job.
 
            
 
                 I am not familiar with the specific laws governing 
 
                 work related deaths.  However, there is no 
 
                 question in my mind that this heart attack was 
 
                 precipitated by the climb up the steep embankment.  
 
                 It is my understanding that fire fighters are 
 
                 compensated when they have a heart attack in their 
 
                 stressful line of work and it is my feeling that 
 
                 the circumstances are the same.
 
            
 
            [(Cl. Ex. 2, pp. 1-2)]
 
            
 
                 Joel A. From, M.D., board certified in internal 
 
            medicine, was provided with decedent's medical records.  Dr. 
 
            From was requested by claimant to render an opinion relative 
 
            to the cause of decedent's death.  On February 20, 1989, Dr. 
 
            From rendered the following opinion:
 
            
 
                 His death undoubtedly had to be due to an 
 
                 arrhythmia.  There was no sign of an infarction 
 
                 although he had significant coronary artery 
 
                 disease throughout the coronary system.  He [sic] 
 
                 activity was unusual for him in that he was 
 
                 awakened at 2 A.M., drove 30 miles, climbed down 
 
                 and up a steep embankment and walked 400 feet to 
 
                 inspect another vehicle.  The fact that there was 
 
                 some alcohol present in his blood is probably of 
 
                 little significance.
 
            
 
                 Sudden cardiac death in the face of coronary 
 
                 artery disease without infarction is usually due 
 
                 to a cardiac dysrhythmia.  This usually is related 
 
                 to events occurring at the moment in time.  This 
 
                 is somewhat different from a myocardial infarction 
 
                 (which was not found in Mr. Choate) in that an 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 infarction is often not related to any activity at 
 
                 the time, but is fortuitous in time.  Coronary 
 
                 artery disease is multi-factorial and certainly 
 
                 Mr. Choate had a number of risk factors dating 
 
                 back at least 15 years before his final event.
 
            
 
                 It would be my opinion that this is nearly a 
 
                 classic case of significant coronary artery 
 
                 disease being aggravated, hastened or lighted up 
 
                 by events at a moment in time.  Certainly, the 
 
                 work activity he was performing was rather unusual 
 
                 for a desk-type person and because the final event 
 
                 was catastrophic and occurred throughout the time 
 
                 frame in which significant activity was developed 
 
                 in the early morning hours in an overweight 
 
                 individual, I would certainly conclude that the 
 
                 job aggravated and lighted up the underlying 
 
                 coronary artery disease in this case.
 
            
 
                 It would be my opinion that the death of Mr. 
 
                 Choate was aggravated by his occupational 
 
                 activities at the time of his death.  This was 
 
                 most likely due to excess catecholamine activity 
 
                 due to problems with exertion and psychologic 
 
                 stressors, occurring in the face of significant 
 
                 coronary artery disease.
 
            
 
                 If I may answer any other questions with a 
 
                 personal interview, please feel free to arrange 
 
                 for same.
 
            
 
            [(Cl. Ex. 1B)]
 
            
 
                 Later, Dr. From provided additional information to 
 
            claimant.  In his report of May 25, 1989, Dr. From opined:
 
            
 
                 I would agree with Dr. Bennett that death was 
 
                 caused by atherosclerotic coronary artery disease, 
 
                 and hypertrophic cardiomyopathy probably 
 
                 hypertension.  However, I believe that we need to 
 
                 have our thinking go one step further.
 
            
 
                 This would then encompass the activies [sic] 
 
                 immediately preceding the final event in the case 
 
                 of Mr. Choate.
 
            
 
                 In my letter to Dr. Ferguson dated February 20, 
 
                 1989, I attempted to outline my thinking in this 
 
                 case.  On page 3 of that letter I did state that I 
 
                 thought this is a nearly classic case of 
 
                 significant coronary artery disease being 
 
                 aggravated, hastened or lightened up by events at 
 
                 a moment in time.  Certainly, the work activity he 
 
                 was performing was rather unusual for a desk type 
 
                 person and because the final event was 
 
                 catastrophic and occurred throughout the time 
 
                 frame in which significant activity was developed, 
 
                 and was developed in the early morning hours in an 
 
                 overweight individual, I would certainly conclude 
 
                 that the job aggravated and lighted up the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 underlying coronary artery disease in this case.  
 
                 There is no suggestion that he had a myocardinal 
 
                 [sic] infacrction [sic].  He had sudden and 
 
                 catastrophic death which could only be due to a 
 
                 arrhythmia, and arrhythmia's [sic] are most 
 
                 usually related to events occurring a moment in 
 
                 time.  I did attempt to bring out the fact that 
 
                 most likely there was excess of catecholamine 
 
                 activity in Mr. Choate, and that this excess 
 
                 catecholamine activity was related to exertion as 
 
                 well psychological stressors, and, because of his 
 
                 significant coronary artery disease, he then 
 
                 developed an event most likely ischemic in nature 
 
                 and resulting in a arrhythmia which resulted in 
 
                 catatrosphic [sic] death.
 
            
 
                 Following a thoughtful examination of the Answers 
 
                 To Interrogatories by Dr. Bennett, my impressions 
 
                 in my letter of February 20, 1989, to Dr. D. L. 
 
                 Ferguson remain unchanged.  If I may answers [sic] 
 
                 any other questions, please feel free to contact 
 
                 me.
 
            
 
            [(Cl. Ex. 1C)]
 
            
 
                                CONCLUSIONS OF LAW
 
 
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the alleged injury actually occurred and 
 
            that it arose out of and in the course of employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967).  The words "arising out of" refer to the cause 
 
                     contri-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 
 
                      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 the 
 
            decedent's work exertions were greater than exertions of 
 
            normal nonemployment life.  The decedent was awakened at 
 
            2:00 a.m., drove 30-35 minutes, and conducted the bridge 
 
            inspection.  Certainly driving 30-35 minutes is not an 
 
            exertion greater than nonemployment life.  The physical 
 
            activity of inspecting the bridge was done in chilly 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            temperature.  The decedent walked down and then up an 
 
            embankment of only about 25 feet.  He walked another 500 
 
            feet on a level surface.  The walking on the embankment was 
 
            approximately equivalent to walking a flight of stairs in 
 
            terms of distance and change in elevation.  The terrain was 
 
            not exceptionally rough and the decedent used a path along 
 
            the bridge.  The inspection itself was not an exertion 
 
            greater than nonemployment life.  Being awakened at 2:00 
 
            a.m. is a somewhat unusual event.  However, by itself being 
 
            awakened at 2:00 a.m. is not an exertion greater than 
 
            nonemployment life.  None of these activities by itself is 
 
            unusual exertion.  Likewise, in combination these activities 
 
            do not rise to the level of exertion greater than normal 
 
            nonemployment life.  It cannot be said from this record that 
 
            decedent's work activities on April 14, 1988 exceeded 
 
            exertions of normal nonemployment life.  Claimant has not 
 
            met the first standard of the legal test.
 
            
 
                 The second standard of the legal test is whether 
 
            claimant's work exertions were greater than normal work.  
 
            Claimant clearly has not proved this standard.  In calendar 
 
            year 1987 the decedent conducted 58 routine bridge 
 
            inspections.  He had made a more thorough routine inspection 
 
            on this same bridge in December 1987.  (Transcript, p. 122, 
 
            ll. 9-12)  On the morning of April 14, 1988 decedent was 
 
            performing the same type of work that he normally did.  In 
 
            addition, the decedent's normal work activities included 
 
            being out of the office 40-50 percent of the time.  The mere 
 
            fact that decedent performed the inspection at 2:00 a.m. 
 
            does not mean the inspection was an unusual exertion.  The 
 
            exertion in performing the inspection would be the same 
 
            regardless of the time when it was conducted.
 
            
 
                 The third standard of the legal test is whether 
 
            decedent felt impelled to continue working after the onset 
 
            of a possible heart attack.  In this case, decedent 
 
            apparently showed no signs of the onset of a heart attack.  
 
            The opinion of Dr. From that the sudden death resulted from 
 
            a cardiac dysrhythmia corroborates that the decedent would 
 
            not have exhibited signs of the onset of symptoms.  Given 
 
            the suddenness of decedent's death, he did not continue 
 
            working after the onset of symptoms.  Therefore, claimant 
 
            did not feel impelled to continue working after the onset of 
 
            symptoms.
 
            
 
                 Claimant has not proved any of the standards of the 
 
            legal test.  Claimant has not met the legal test.  The 
 
            decedent's cardiac death 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 medical tests.  
 
            Because claimant has not satisfied the legal test, 
 
            consideration of the medical test will be for discussion 
 
            purposes only.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (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). 
 
            
 
                 Both Dr. Ferguson and Dr. From expressed an opinion 
 
            that the decedent's work activity caused decedent's fatal 
 
            heart attack.  Both those opinions were based on the 
 
            assumption that decedent had a "desk-type" job and had 
 
            walked up a "steep" embankment.  The evidence in this case 
 
            shows that the decedent routinely did bridge inspections and 
 
            spent from 40-50 percent of his time "out of the office."  
 
            The evidence also shows that the decedent walked up an 
 
            incline of 25 feet at a slope of three to one.  The incline 
 
            was not steep and it certainly was not "very steep."  The 
 
            opinions of Dr. Ferguson and Dr. From can be given little 
 
            weight because they are based upon erroneous factual 
 
            assumptions.  Dr. Bennett opined that death was a direct 
 
            result of atherosclerotic cardiomyopathy being a 
 
            contributing significant condition.  Dr. Bennett did not 
 
            opine that decedent's work caused his death.  The reliable 
 
            medical evidence in this record does not meet claimant's 
 
            burden of proof.  Claimant has not satisfied the medical 
 
            test in this case.
 
            
 
                 In summary, claimant has met neither the legal nor the 
 
            medical test in proving decedent's death arose out of and in 
 
            the course of his employment.  Decedent's death did not 
 
            arise out of and in the course of his employment.
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
     
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            That defendants 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
 
            
 
            Copies To:
 
            
 
            Mr. John M. Bickel
 
            Mr. Thomas P. Peffer
 
            Attorneys at Law
 
            500 MNB Bldg.
 
            P. O. Box 2107
 
            Cedar Rapids, IA  52406
 
            
 
            Mr. Robert P. Ewald
 
            Assistant Attorney General
 
            DOT/800 Lincoln Way
 
            Ames, IA  50010
 
            
 
 
         
 
 
 
 
 
         
 
                                              1100; 1108.10; 2202
 
                                              Filed September 29, 1992
 
                                              Byron K. Orton
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         KAREN H. CHOATE, Surviving    :
 
         Spouse of Robert E. Choate,   :
 
         Deceased,                     :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 882627
 
         IOWA DEPARTMENT OF            :
 
         TRANSPORTATION,               :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         STATE OF IOWA,                :
 
                                       :
 
              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.
 
         The decedent's work exertion was being awakened at 2:00 a.m., 
 
         driving 30-35 minutes, walking up and down a 25 foot bridge 
 
         embankment having a slope of 3:1, and walking another 500 feet in 
 
         chilly weather.  This exertion was not greater than normal 
 
         nonemployment life.
 
         The decedent was conducting a bridge inspection at the time of 
 
         his death.  The decedent had performed 57 such inspections in the 
 
         year preceding his death.  His work exertion was not unusual work 
 
         exertion.
 
         Decedent died almost immediately after his cardiac dysrhythmia.  
 
         He did not continue working after the onset of symptoms so he did 
 
         not feel impelled to continue working.
 
         There was insufficient reliable medical evidence to find a causal 
 
         connection between the decedent's work exertion and his death.  
 
         The medical opinions expressed were based on erroneous 
 
         assumptions.
 
         
 
 
            
 
            page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDGAR L. NIXON,               :
 
                                          :        File No. 799760
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            NORTHWEST ERECTION SERVICES,  :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :       A R B I T R A T I O N
 
            THE IOWA CONTRACTORS WORKERS' :
 
            COMPENSATION GROUP,           :          D E C I S I O N
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ______________________________
 
                                          :
 
            EDGAR L. NIXON,               :
 
                                          :          File No. 882885
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            ABELL-HOWE COMPANY,           :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CRAWFORD & COMPANY,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Edgar L. 
 
            Nixon as a result of injuries to his low back which occurred 
 
            on June 25, 1985 in file number 799760 and on March 23, 1988 
 
            in file number 882885.
 
            
 
                 Defendants, in file number 799760, admitted 
 
            compensability, paid weekly benefits and some medical 
 
            expenses.
 
            
 
                 Defendants, in file number 882885, denied 
 
            compensability for the injury, paid weekly benefits and paid 
 
            some medical expenses.
 
            
 
                 The case was heard and fully submitted at Cedar Rapids, 
 
            Iowa on July 25, 1991.  The record in the proceeding 
 

 
            
 
            page   2
 
            
 
            
 
            
 
            
 
            consists of claimant's exhibit A through V and defendants' 
 
            joint exhibits 1, 2, 7 through 17, 19 through 25, 28 through 
 
            41, 43 and 48, testimony from claimant, Don Schuettpelz, Jim 
 
            Ridings, Dick Tharp and John Hughes.
 
            
 
                                      ISSUES
 
            
 
                 The issues presented for determination in file number 
 
            799760 are as follows:
 
            
 
                 1.  Causal connection and extent of entitlement to 
 
            permanent partial disability under section 85.34(2)"u";
 
            
 
                 2.  Extent of entitlement to healing period benefits;
 
            
 
                 3.  Commencement date for payment of permanent partial 
 
            disability;
 
            
 
                 4.  Entitlement to Iowa Code section 85.27 benefits;
 
            
 
                 5.  Iowa Code section 86.13 penalty benefits, and
 
            
 
                 6.  Taxation of Costs.
 
            
 
                 The issues presented for determination in file number 
 
            882885 are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on March 23, 
 
            1988 arising out of and in the course of employment with 
 
            employer Abell-Howe Co.;
 
            
 
                 2.  Causal connection and extent of entitlement to 
 
            permanent partial disability under section 85.34(2)"u";
 
            
 
                 3.  Causal connection and entitlement to temporary 
 
            total disability or healing period
 
            
 
                 4.  Claimant's weekly rate of compensation;
 
            
 
                 5.  Claimant's entitlement to Iowa Code section 85.27 
 
            travel expense benefits; and
 
            
 
                 6.  Taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence, the following 
 
            findings of fact are made:
 
            
 
                 Claimant, Edgar Nixon, injured his low back on June 25, 
 
            1985, while working for Northwest Erection Services, Inc., 
 
            performing ironwork.  As a result of that injury, he had an 
 
            L5-S1 disc surgery performed on September 19, 1985.
 
            
 
                 Claimant alleges that on March 23, 1988, he injured his 
 
            low back while employed by Abell-Howe Co. and subsequently 
 
            incurred a second disc surgery to the L4-L5 level on 
 
            December 1, 1988.
 
            
 
                 Claimant, on May 4, 1990, underwent a third spine 
 

 
            
 
            page   3
 
            
 
            
 
            
 
            
 
            surgery which fused the L4-L5 and S1 vertebrae.  Claimant 
 
            asserts that the third surgery is casually connected to one 
 
            or both of the above captioned work injuries.
 
            
 
                 The first issue to be decided in file number 799760 
 
            concerns claimant's entitlement to permanent partial 
 
            disability and causal connection.  Claimant's injury of June 
 
            25, 1985 resulted in an L5-S1 disc surgery.  The treating 
 
            doctor opined that the L5-S1 disc surgery and 10 percent 
 
            impairment were the result of the June 25, 1985 injury.  Dr. 
 
            Turner's assessment of 20 percent impairment resulting from 
 
            the first surgery is rejected based upon the subjective 
 
            nature of his analysis and due to his later deposition 
 
            testimony explaining the ratings.  Based upon Dr. James W. 
 
            Turner's opinion and the medical records when viewed as a 
 
            whole, it is apparent that the June 25, 1985 injury caused 
 
            permanent disability.
 
            
 
                 The parties stipulated that the June 25, 1985 injury is 
 
            to be evaluated industrially.  Factors to be considered when 
 
            assessing industrial disability include claimant's age, 
 
            education, experience, impairment, work restrictions, 
 
            motivation, actual earnings and employer's offer of work or 
 
            vocational rehabilitation.
 
            
 
                 At the time of injury, claimant was age 34 and had an 
 
            eleventh grade high school education.  At the time of 
 
            hearing, he had completed his GED.  Claimant's work 
 
            experience consists primarily of heavy manual labor, 
 
            primarily as a journeyman ironworker.
 
            
 
                 Claimant's impairment resulting from the June 25, 1985 
 
            injury was 10 percent with work restrictions generally 
 
            described as limited bending, lifting and no heavy living.
 
            
 
                 Claimant had additional permanent impairment assigned 
 
            after the second low back surgery of December 1, 1988.  
 
            However, it is found that insufficient evidence is available 
 
            to causally connect the December 1, 1988 surgery to the work 
 
            injury of June 25, 1985.  Therefore, any disability caused 
 
            by the December 1, 1988 surgery will not be considered in 
 
            the assessment.  This finding is based upon the medical 
 
            evidence concerning causal connection and the intervening 
 
            low back injury of March 1988.
 
            
 
                 Claimant also incurred a third low back surgery on May 
 
            4, 1990 which fused the vertebrae between L4 and S1.  
 
            Claimant failed to bring forth sufficient evidence to prove 
 
            the causal connection of this surgery to the June 25, 1985 
 
            injury.  The fusion was not specifically connected to the 
 
            June 25, 1985 injury by any medical professional.  In the 
 
            absence of a medical opinion concerning causal connection it 
 
            would be unduly speculative to relate the fusion surgery to 
 
            the June 25, 1985 injury.  Therefore, any disability 
 
            resulting from the third surgery will not be considered in 
 
            the assessment of industrial disability in file number 
 
            799760.
 
            
 
                 Claimant did return to steel work after the first 
 
            surgery but was limited with respect to the type and extent 
 

 
            
 
            page   4
 
            
 
            
 
            
 
            
 
            of work performed.  Claimant's left leg symptoms that 
 
            occurred prior to March 1988 are also a consideration with 
 
            respect to the work restrictions caused by the June 25, 1985 
 
            injury.
 
            
 
                 Claimant initially demonstrated good work motivation 
 
            after the first surgery.  However, claimant's attendance 
 
            record in work and the various rehabilitation programs 
 
            detracts from this finding.
 
            
 
                 After the June 25, 1985 injury and prior to the 
 
            intervening event of March 1988, claimant was able to work 
 
            in the ironwork trade at about the same wages.  This 
 
            retention in actual earning power is tempered by claimant's 
 
            inability to perform all aspects of the trade.
 
            
 
                 Claimant alleged at hearing that he was discharged by 
 
            employer due to his work restrictions.  The employer brought 
 
            forth evidence to the contrary.  It is found that claimant 
 
            has failed to prove that employer discharged claimant due to 
 
            the June 25, 1985 injury and the resulting work 
 
            restrictions.
 
            
 
                 Having considered all the evidence, it is found that as 
 
            a result of the June 25, 1985 low back injury claimant 
 
            sustained 20 percent industrial disability.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            healing period benefits in file number 799760.
 
            
 
                 Claimant lost two days of work for treatment of the 
 
            injury on June 26 and June 27, 1986.  He was later taken off 
 
            work by the treating doctor on July 10, 1985.  He was 
 
            discharged from care on April 21, 1986 by James W. Turner, 
 
            M.D. (Defendants' Exhibit 1, page 38).  On April 7, 1986, 
 
            Dr. Turner opined that claimant's healing period would end 
 
            on April 21, 1986.  He also assigned claimant a permanent 
 
            impairment rating.  Dr. Turner's statements indicate that as 
 
            of April 21, 1986, significant improvement in claimant's 
 
            condition was no longer expected.  It is noted that in 
 
            November 1985, Dr. Turner expected the healing period to 
 
            last twelve weeks into the future.
 
            
 
                 Claimant also alleged entitlement to healing period in 
 
            1988, 1989 and 1990.  It is found that claimant has failed 
 
            to present sufficient credible medical evidence to prove 
 
            that the latter periods of lost time are causally connected 
 
            to the June 25, 1985 injury.  The remoteness in occurrence 
 
            combined with the alleged intervening injury of March 1988 
 
            weigh in favor of no causal connection.
 
            
 
                 Therefore, it is found that as a result of the June 25, 
 
            1985 injury claimant incurred a healing period starting with 
 
            June 26, 1985 and June 27, 1985 along with the period July 
 
            10, 1985 through April 21, 1986.
 
            
 
                 The next issue concerns the commencement date for 
 
            payment of permanent partial disability.  Having found that 
 
            claimant's healing period benefits ended on April 21, 1986, 
 
            it follows that permanent disability payments begin on April 
 

 
            
 
            page   5
 
            
 
            
 
            
 
            
 
            22, 1986.
 
            
 
                 The next issue concerns claimant's entitlement to Iowa 
 
            Code section 85.27 benefits.
 
            
 
                 Claimant incurred various medical expenses for the 
 
            treatment of the June 25, 1985 low back injury.  It is found 
 
            that all such medical mileage expenses incurred for 
 
            treatment of the low back injury starting June 25, 1985 
 
            through May 22, 1988 are causally connected and compensable 
 
            in file number 799760.  This employer is also responsible 
 
            for the mileage and expenses incurred with respect to the 
 
            employer requested examination with Dr. Koprivica, M.D., on 
 
            November 14, 1989.
 
            
 
                 On March 23, 1988, claimant alleged that a new low back 
 
            injury was sustained.  This intervening event is sufficient 
 
            to break the causal connection of subsequent medical 
 
            expenses to the June 25, 1985 injury.  Claimant presented 
 
            insufficient medical evidence to prove the causal connection 
 
            of medical expenses incurred for treatment on and after 
 
            March 23, 1988 in file number 799760.
 
            
 
                 The next issue concerns section 86.13 penalty benefits 
 
            in file number 799760.  It is found that the weekly benefit 
 
            issues set forth in this file number were sufficiently 
 
            debatable so as to preclude an imposition of a penalty.  
 
            Claimant's prior history of low back pain, second injury in 
 
            March 1988, and employer's voluntary payment of 98 3/7 weeks 
 
            of benefits supports the finding of a reasonably debatable 
 
            claim.
 
            
 
                 With respect to taxation of costs, claimant prevailed 
 
            in obtaining benefits greater than those voluntarily paid by 
 
            employer and he is therefore entitled to costs.  Since two 
 
            defendants were present at trial, this issue will be 
 
            discussed in file number 882885.
 
            
 
                 The next series of issues concern the alleged injury of 
 
            March 23, 1988 in file number 882885.
 
            
 
                 The first issue concerns whether claimant sustained an 
 
            injury on March 23, 1988 arising out of and in the course of 
 
            employment with employer, Abell-Howe.
 
            
 
                 Claimant testified that on March 23, 1988, during work 
 
            hours and while performing duties assigned by employer 
 
            Abell-Howe, he injured his low back when lifting iron.  The 
 
            incident was reported to Richard Tharp, a coworker on the 
 
            day it occurred.  Claimant's testimony is sufficient 
 
            evidence to sustain his burden in proving that on March 23, 
 
            1988, he sustained a low back injury arising out of and in 
 
            the course of employment with employer Abell-Howe.
 
            
 
                 The causal connection and extent of permanent 
 
            disability are also in issue.
 
            
 
                 Subsequent to the March 23, 1988 injury, claimant 
 
            underwent a surgery for an L4-5 herniated disc.  Dr. Turner 
 
            related the L4-5 problem in part do the March 23, 1988 
 

 
            
 
            page   6
 
            
 
            
 
            
 
            
 
            injury and in part to the preexisting condition.  Medical 
 
            records demonstrate that for a period of months prior to 
 
            March 1988 claimant's low back condition had been 
 
            asymptomatic.  Dr. Koprivica opined that the March 23, 1988 
 
            injury was the event that caused the need for surgical 
 
            intervention.  His opinion is accepted as correct.  It is 
 
            found that the March 23, 1988 injury was the cause of the 
 
            need for claimant's December 1, 1988 L4-5 surgery due to 
 
            claimant's asymptomatic condition prior to the injury.  It 
 
            is also found that as a result of this surgery claimant 
 
            incurred additional disability as evidence by the increased 
 
            work restrictions and additional impairment.
 
            
 
                 Claimant also alleges that the fusion and laminectomy 
 
            surgery of May 4, 1990 is causally connected to the March 
 
            23, 1988 injury.  However, the record is devoid of medical 
 
            opinion on the issue.  Claimant, as of February 8, 1990, had 
 
            not been seen for about one year by Dr. Turner for back 
 
            pain.  The medical records reveal a further herniation and 
 
            some possible scarring.  No statement linking the February 
 
            8, 1990 symptoms to the March 23, 1988 injury was made.  
 
            Therefore, it is found that claimant has failed to prove 
 
            that the February 8, 1990 symptoms and resulting fusion 
 
            surgery are related to the March 23, 1988 injury.
 
            
 
                 Having found the March 23, 1988 injury to be a cause of 
 
            disability, it follows that the extent of industrial 
 
            disability must now be analyzed.  Factors to be considered 
 
            include claimant's age, education, experience, work 
 
            restrictions, motivation, actual earnings and employer's 
 
            offer of vocational rehabilitation.
 
            
 
                 At the time of injury, claimant was age 37.  His 
 
            education, experience and motivation were essentially the 
 
            same as stated in file number 799760.
 
            
 
                 Claimant sustained an additional 10 percent impairment 
 
            as a result of the second surgery and also restricted to no 
 
            lifting over 30 pounds along with general lifting, carrying 
 
            and overhead work restrictions.  The new work restrictions 
 
            imposed as a result of the second surgery prevent claimant 
 
            from returning to the heavy manual labor of steel work.  As 
 
            a result, claimant has sustained a significant reduction in 
 
            actual earnings attributable to the March 23, 1988 incident.  
 
            Claimant's less than aggressive involvement in vocational 
 
            rehabilitation mitigates against the loss of earnings.
 
            
 
                 Evidence was presented concerning claimant's earning 
 
            potential after he completes his current vocational program.  
 
            To base an award on claimant's potential future earnings 
 
            would be speculative.  The assessment of industrial 
 
            disability is based upon claimant's circumstances as they 
 
            currently exist.
 
            
 
                 Having considered all the evidence offered, it is found 
 
            that the March 23, 1988 injury when viewed alone and of 
 
            itself has caused 30 percent industrial disability in file 
 
            number 882885.  It should be noted that this assessment of 
 
            disability is in addition to that awarded in file number 
 
            799760.  Claimant has a total industrial disability of 50 
 

 
            
 
            page   7
 
            
 
            
 
            
 
            
 
            percent of which 20 percent is attributable to the 1985 
 
            injury while 30 percent is attributable to the 1988 injury.
 
            
 
                 The next issue concerns the causal connection of the 
 
            healing period to the March 23, 1988 injury.  It is found, 
 
            based upon the medical evidence offered, that the healing 
 
            period beginning March 25, 1988 through June 25, 1989 is 
 
            causally connected to the March 23, 1988 injury.  During 
 
            that period, claimant was under continuous treatment for low 
 
            back symptoms which began on March 23, 1988.
 
            
 
                 Claimant has failed to prove the causal connection of 
 
            the healing period May 3, 1990 through November 14, 1990.  
 
            Insufficient medical evidence was available which connected 
 
            the third surgery to the March 23, 1988 injury and claimant 
 
            has failed in his burden.
 
            
 
                 The next issue concerns claimant's weekly benefit rate.  
 
            Claimant alleges that the weeks which include the unpaid 
 
            holidays of Christmas and New Years should be excluded as 
 
            not representative of his earnings.  Claimant's theory is 
 
            accepted as correct as short weeks are generally excluded.  
 
            The weekly rate will be based on the eleven week average 
 
            starting December 19, 1987 through March 19, 1988, which 
 
            yields an average weekly wage of $485.05 and a weekly 
 

 
            
 
            page   8
 
            
 
            
 
            
 
            
 
            benefit rate of $297.56, based on the stipulation of single 
 
            and three exemptions.
 
            
 
                 Claimant's entitlement to Iowa Code section 85.27 
 
            benefits is also disputed.  Claimant alleges entitlement to 
 
            additional mileage and medical expenses.  As previously 
 
            found, the symptoms occurring after February 8, 1990 have 
 
            not been proven to be causally connected to the March 23, 
 
            1988 injury and employer is not responsible for medical 
 
            expenses incurred after that date.
 
            
 
                 In file number 882885, employer is liable for all 
 
            medical and mileage expenses itemized in exhibit "U" which 
 
            were incurred starting March 23, 1988 and ending February 7, 
 
            1990.  No further award of expenses is warranted due to 
 
            claimant's failure to prove a causal connection of the 
 
            remaining expenses to the injury in question.
 
            
 
                 Taxation of costs is also an issue to be decided.  
 
            Claimant prevailed in obtaining an award in both cases and 
 
            he is entitled to have costs taxed.  Claimant's costs are 
 
            found in exhibit T.  He requests a $475 reimbursement for 
 
            the September 1, 1988 deposition of Dr. Turner.  This 
 
            deposition fee is reduced to $150 pursuant to Iowa Code 
 
            section 622.72.  All other costs are appropriate.
 
            
 
                 In file number 799760, the employer shall pay claimant 
 
            $314.73 in costs.  In file number 882885, employer shall pay 
 
            claimant $314.72 in costs.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on March 23, 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). 
 
            
 
                 Claimant has established by a preponderance of the 
 
            evidence in file number 882885 that on March 23, 1988, he 
 
            sustained an injury arising out of and in the course of 
 
            employment with employer.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of  June 25, 
 
            1985 and March 23, 1988 are 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). 
 
            
 
                 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 
 

 
            
 
            page   9
 
            
 
            
 
            
 
            
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in file number 799760 supports an award of 
 
            20 percent permanent partial disability which entitles the 
 
            claimant to recover 100 weeks of benefits under Iowa Code 
 
            section 85.34(2)"u".  Claimant has established the causal 
 
            connection of the permanent disability based upon the 
 
            medical evidence presented.
 
            
 
                 Upon considering all the material factors, it is found 
 

 
            
 
            page  10
 
            
 
            
 
            
 
            
 
            that the evidence in file number 882885 supports an award of 
 
            30 percent permanent partial disability which entitles the 
 
            claimant to recover 150 weeks of benefits under Iowa Code 
 
            section 85.34(2)"u".  Claimant has established the causal 
 
            connection of the permanent disability based upon the 
 
            medical evidence presented.
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 The end of the healing period occurs at the time when 
 
            the physicians indicate that no further improvement is 
 
            forthcoming.  It is not determined by hindsight looking back 
 
            to find the point at which recovery ceased.  Thomas v. 
 
            William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 
 
            1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 
 
            (Iowa App. 1981).
 
            
 
                 In file number 799760, claimant has proven entitlement 
 
            to healing period benefits on June 26, 1985, June 27, 1985 
 
            and July 10, 1985 through April 21, 1986.
 
            
 
                 In file number 882885, claimant has proven entitlement 
 
            to healing period benefits beginning March 25, 1988 through 
 
            June 25, 1989.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Claimant has proven the commencement date for payment 
 
            of permanent partial disability benefits in file number 
 
            799760 to be April 22, 1986.
 
            
 
                 Iowa Code section 85.36 provides, in part:
 
            
 
                 The basis of compensation shall be the weekly earnings 
 
            of the injured employee at the time of the injury.  Weekly 
 
            earnings means gross salary, wages, or earnings of an 
 
            employee to which such employee would have been entitled had 
 
            the employee worked the customary hours for the full pay 
 
            period in which the employee was injured, as regularly 
 
            required by the employee's employer for the work or 
 
            employment for which the employee was employed, computed or 
 
            determined as follows and then rounded to the nearest 
 
            dollar:
 
            
 
                 ....
 
            
 

 
            
 
            page  11
 
            
 
            
 
            
 
            
 
                 6.  In the case of an employee who is paid on a daily, 
 
            or hourly basis, or by the output of the employee, the 
 
            weekly earnings shall be computed by dividing by thirteen 
 
            the earnings, not including overtime or premium pay, of said 
 
            employee earned in the employ of the employer in the last 
 
            completed period of thirteen consecutive calendar weeks 
 
            immediately preceding the injury.
 
            
 
                 Short weeks are not included in the 13 weeks for 
 
            determining the rate under Iowa Code section 85.36(6); Lewis 
 
            v. Aalf's Mfg Co., I Iowa Industrial Commissioner Report 
 
            206, 207 (Appeal Decision 1980).
 
            
 
                 Claimant has proven that his average weekly earnings in 
 
            file number 882885 is $485.05 and that he is entitled to a 
 
            weekly benefit rate of $297.56.
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                 Claimant has established entitlement to section 85.27 
 
            benefits as outlined in the opinion in file number 799760 
 
            and 882885.
 
            
 
                 If a delay in commencement or termination of benefits 
 
            occurs without reasonable or probable cause or excuse, the 
 
            industrial commissioner shall award benefits in addition to 
 
            those benefits payable under this chapter, or chapters 85, 
 
            85A, or 85B, up to fifty percent of the amount of benefits 
 
            that were unreasonably delayed or denied.
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that he is entitled to Iowa Code section 86.13 
 
            benefits in file number 799760 as employer had good cause to 
 
            dispute the claim.
 
            
 
                 All costs incurred in the hearing before the deputy 
 
            commissioner shall be taxed in the discretion of the deputy 
 
            commissioner unless otherwise required by the rules of civil 
 
            procedure governing discovery.  Iowa Code section 86.40, 
 
            Rule 343 IAC 4.33.
 
            
 
                 Witnesses called to testify only to an expert opinion 
 
            shall receive compensation to be fixed by the deputy 
 
            commissioner not to exceed $150 per day while so employed.  
 
            Iowa Code section 622.72.
 
            
 
                 Claimant has proven entitlement to reimbursement for 
 
            his costs in both file numbers.  Dr. Turner's deposition fee 
 
            is reduced to $150 pursuant to Iowa Code section 622.72.  
 
            Each defendant shall pay their own respective costs.
 
            
 
                                      order
 
            
 

 
            
 
            page  12
 
            
 
            
 
            
 
            
 
                 Defendants in file number 799760 are to pay claimant 
 
            one hundred (100) weeks of permanent partial disability 
 
            benefits at the rate of two hundred sixty-two and 63/100 
 
            dollars ($262.63) commencing April 22, 1986.
 
            
 
                 Defendants in file number 799760 are to pay claimant 
 
            healing period benefits at the rate of two hundred sixty-two 
 
            and 63/100 dollars ($262.63) for the period June 26, 1985 
 
            and June 27, 1985 and July 10, 1985 through April 21, 1986.
 
            
 
                 Defendants in file number 799760 shall pay Iowa Code 
 
            section 85.27 benefits as outline in the opinion.
 
            
 
                 It is further ordered in file number 799760 that 
 
            defendants shall pay claimant three hundred fourteen and 
 
            73/100 dollars ($314.73) as costs.
 
            
 
                 Defendants in file number 882885 are to pay claimant 
 
            one hundred fifty (150) weeks of permanent partial 
 
            disability benefits at the rate of two hundred ninety-seven 
 
            and 56/100 dollars ($297.56) commencing November 15, 1990.
 
            
 
                 Defendants in file number 882885 are to pay claimant 
 
            healing period benefits at the rate of two hundred ninety-
 
            seven and 56/100 dollars ($297.56) for the period March 25, 
 
            1988 through June 25, 1989.
 
            
 
                 Defendants in file number 882885 shall pay Iowa Code 
 
            section 85.27 benefits as outline in the opinion.
 
            
 
                 It is further ordered in file number 882885 that 
 
            defendants shall pay claimant three hundred fourteen and 
 
            72/100 dollars ($314.72) as costs.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr John M Bickel
 
            Attorney at Law
 
            500 MNB Bldg
 
            P O Box 2107
 

 
            
 
            page  13
 
            
 
            
 
            
 
            
 
            Cedar Rapids IA 52406
 
            
 
            Ms Carolyn M Hinz
 
            Attorney at Law
 
            1200 MNB Bldg
 
            Cedar Rapids IA 52401
 
            
 
            Mr John a Templer Jr
 
            Ms Ann M Verheul
 
            Attorneys at Law
 
            3737 Woodland  Ste 437
 
            W Des Moines IA 50265
 
            
 
            
 
 
         
 
 
 
                   5-1802; 5-1803-5-2500
 
                   5-3000; 5-4000
 
                   Filed August 6, 1991
 
                   Marlon D. Mormann
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         EDGAR L. NIXON,               :
 
                                       :        File No. 799760
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :
 
         NORTHWEST ERECTION SERVICES,  :
 
                                       :
 
              Employer,                :
 
                                       :
 
         and                           :
 
                                       :       A R B I T R A T I O N
 
         THE IOWA CONTRACTORS WORKERS' :
 
         COMPENSATION GROUP,           :          D E C I S I O N
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ______________________________
 
                                       :
 
         EDGAR L. NIXON,               :
 
                                       :          File No. 882885
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :
 
         ABELL-HOWE COMPANY,           :
 
                                       :
 
              Employer,                :
 
                                       :
 
         and                           :
 
                                       :
 
         CRAWFORD & COMPANY,           :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         5-1802; 5-1803; 5-2500; 5-3000; 5-4000
 
         Claimant, age 35-37, sustained two low back injuries with 
 
         separate employers.  He was awarded healing period, medical and 
 
         permanent partial disability with 20% to the first and 30% to the 
 
         second injury.
 
         Claimant's weekly rate excluded two weeks of Christmas and New 
 
         Years from 13 week calculation due to unpaid holidays.
 
         Penalty denied due to voluntary payment and intervening injury.
 
         Medical deposition fee reduced to $150 due to section 622.72.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          ELIZABETH "JANE" MAREAN,
 
         
 
               Claimant,
 
         
 
          VS.                            File Nos. 882959 & 910531
 
         
 
          FAREWAY STORES, INC.,          A R B I T R A T I O N
 
         
 
               Employer,                    D E C I S I O N
 
         
 
          and
 
         
 
         FIREMAN'S FUND INSURANCE CO.,
 
         & AETNA LIFE AND CASUALTY,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration upon the petition of 
 
         claimant, Elizabeth "Jane" Marean, against her employer, Fareway 
 
         Stores, Inc., and its insurance carriers, Fireman's Fund 
 
         Insurance Company and Aetna Life and Casualty, defendants.  The 
 
         cases were heard on May 14, 1990, in Des Moines, Iowa at the 
 
         office of the industrial commissioner.  The record consists of 
 
         the testimony of claimant as well as the testimonies of Robert 
 
         Van Dcoy and Kent Jayne.  Additionally, the record consists of 
 
         joint exhibits 1-9, Fireman's Fund exhibit A and Aetna's Exhibit 
 
         B.
 
         
 
                                      ISSUES
 
         
 
              The sole issues to be determined are: 1) whether claimant 
 
         received an injury which arose out of and in the course of 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and the disability; 3) whether claimant is 
 
         entitled to temporary disability/healing period benefits or 
 
         permanent partial or total disability benefits; 4) whether 
 
         claimant is an odd-lot employee; 5) whether claimant is entitled 
 
         to medical benefits under section 85.27; 6) whether claimant is 
 
         entitled to penalty benefits under section 86.13; and, 7) the 
 
         liability of the respective insurance carriers.
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 50 years old and a high school graduate.  During 
 
         the course of her career, claimant has been employed in various 
 
         clerical and retail positions.
 
         
 
              Claimant was hired by defendant-employer to check groceries 
 
         and to stock candy shelves.  She commenced her employment in 
 
         October of 1977 and worked until February of 1989.  Her work 
 
         station was designed so that the cash register was on claimant's 
 
         right side and the grocery cart was in front of claimant.  The 
 
         groceries passed to claimant's left side, after claimant unloaded 
 
         the items from the cart.  Claimant was occasionally responsible 
 
         for sacking groceries.
 
         
 
              William R. Boulden, M.D., performed a ganglionectomy on 
 
         claimant's dorsal left wrist on November 23, 1987.  She returned 
 
         to work on January 25, 1988.  For a period of time, claimant wore 
 
         a wrist splint while she was working.  The claimant testified she 
 
         began experiencing pain in her left shoulder, back and neck area.  
 
         Claimant testified she reported her left shoulder injury to Dr. 
 
         Boulden during her exam on March 10, 1988.  Dr. Boulden's notes 
 
         do not reflect such a report.  He maintains claimant reported the 
 
         injury to him during her exam of April 4, 1988 and he in turn 
 
         referred her to Scott Neff, D.O., an orthopaedic surgeon, 
 
         specializing in shoulders.  Dr. Neff examined claimant on April 
 
         4, 1988.  Various tests were ordered.  He referred claimant to 
 
         Karen Kienker, M.D., a specialist in physical medicine and 
 
         rehabilitation.  She treated claimant.  Claimant was off work 
 
         from April 5, 1988 through June 6, 1988, from June 28, 1988 to 
 
         September 11, 1988, and from January 18, 1989 to February 9, 
 
         1989.
 
         
 
              When Claimant returned to work in September of 1988, 
 
         defendant-employer, along with a vocational rehabilitation 
 
         expert, Kent Jayne, made some modifications in claimant's work 
 
         station.  Claimant was assigned to the "express lane" where less 
 
         items were checked through her stand.  Also there was a change in 
 
         the physical layout of the check stand.  Customers were required 
 
         to assist claimant in the unloading of the grocery carts.  
 
         However, the work station was not modified to the point that 
 
         claimant would be able to slide the groceries with the use of her 
 
         right extremity and shoulder.
 
         
 
              There was testimony by claimant that Dr. Kienker had 
 
         recommended checking with the right hand.  However, 
 
         defendant-employer did not modify the work station to that extent 
 
         because other individuals would be using the same station and the 
 
         proposed modification would interfere with their productivity.
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 3
 
         
 
         
 
              In October of 1988, Dr. Kienker provided an impairment 
 
         rating for claimant.  The physician opined claimant had a 
 
         permanent partial impairment of 13 percent to the left upper 
 
         extremity which converted to an eight percent permanent 
 
         impairment to the body as a whole.
 
         
 
              Pursuant to a request from defendant - Fireman's Fund, 
 
         claimant was examined by S. Randy Winston, M.D., on December 22, 
 
         1988.  Dr. Winston determined claimant had a three percent 
 
         impairment to the body as a whole.
 
         
 
              In January of 1989, Dr. Neff again saw claimant.  He ordered 
 
         an arthrogram of the left shoulder.  The test revealed no 
 
         abnormalities of the left shoulder.  Dr. Neff released claimant 
 
         to return to work on February 9, 1989.  Dr. Neff found no 
 
         permanent physical impairment of the left shoulder.
 
         
 
              Claimant, however terminated her employment with defendant 
 
         in February of 1989.  Since her resignation, claimant has held 
 
         several temporary positions.  At the time of the hearing, 
 
         claimant was employed as a policy service clerk at Midwest 
 
         Casualty for $5.63 per hour.  This was $1.37 per hour less than 
 
         what she earned at defendant-employer's establishment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on March 10, 1988 and April 
 
         5, 1988, which arose out of and in the course of her employment.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp, 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 4
 
         
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 
 
         1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that her injury arose out of and in the course of her employment.  
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove her injury occurred at a place where she reasonably may be 
 
         performing her duties.  McClure, 188 N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of March 10, 1988 and April 5, 
 
         1988, are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945). A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              Claimant has proven she has sustained an injury to her left 
 
         shoulder.  The injury arose out of and in the course of her 
 
         employment with defendant-employer.  The injury was the result of 
 
         repeated trauma at work.  Claimant was required to repeatedly 
 
         move and sack grocery items.  The repeated acts involved the 
 
         continual use of the left arm and shoulder.  Dr. Kienker, a 
 
         treating physician, opined claimant's injury was:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 5
 
         
 
         
 
              [A] result of repetitive use of the shoulder.  Her condition 
 
              resulted from repetitive activities.  Her injury was a 
 
              result of cumulative trauma or a series of microtraumas.
 
         
 
              Claimant has established that she has an injury which is 
 
         cumulative in nature.  Her injury fits under the Iowa cumulative 
 
         injury rule established by the Supreme Court in McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  Under 
 
         McKeever, supra, the cumulative injury rule applies when 
 
         disability develops gradually or as a result of repeated trauma.  
 
         Furthermore, in cases involving the cumulative injury rule, the 
 
         Supreme Court has determined the injury occurs when an employee, 
 
         because of pain or physical inability, can no longer work.  
 
         McKeever, supra at 374.
 
         
 
              In the case at hand, it is overwhelmingly clear claimant did 
 
         not miss work because of her left shoulder until April 5, 1988.  
 
         Claimant did not see Dr. Neff for her shoulder until April 4, 
 
         1988. claimant maintains she reported left shoulder pain to Dr. 
 
         Boulden, the physician who treated her for a ganglion cyst on the 
 
         left wrist.  Nevertheless, Dr. Boulden did not include mention of 
 
         any left shoulder problem in his office notes until April 4, 
 
         1988, the day he referred claimant to Dr. Neff.
 
         
 
              Therefore, in light of the above, it is the determination of 
 
         the undersigned that claimant has sustained a cumulative injury 
 
         to her left shoulder.  The injury date, under McKeever is the 
 
         date claimant first missed work because of her left shoulder 
 
         injury.  That date is April 5, 1988.  Claimant did not sustain a 
 
         left shoulder injury on March 10, 1988.  At the time of 
 
         claimant's injury on April 5, 1988, defendant-employer was 
 
         insured by defendant - Fireman's Fund.  Defendant Fireman's Fund 
 
         is liable for benefits and medical expenses.  Defendant - Aetna 
 
         Casualty and Surety Company is not liable for any portion of the 
 
         left shoulder injury.
 
         
 
              The next issue to address is the nature and extent of 
 
         claimant's injury.  Dr. Kienker has noted claimant as having an 
 
         eight percent impairment to the body as a whole.  The physician 
 
         diagnosed claimant as having myofascial pain syndrome.  Upon 
 
         examination of claimant, Dr. Kienker found:
 
         
 
              Physical examination: Range of motion of the neck, left 
 
              shoulder, and left elbow were recorded today for calculation 
 
              of percentage of permanent impairment.  She has limited 
 
              external rotation of the left shoulder.  This is only 40 
 
              degrees.  She has limited flexion of the elbow.  She only 
 
              flexes through a 130 degree angle.  Her impairments are 13% 
 
              of the left upper extremity or 8% of the whole person.  
 
              Measurements which were less than
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 6
 
         
 
         
 
              normal were repeated a second time.  The patient appeared to 
 
              give a good effort.
 
              
 
              Dr. Winston opined:as follows:
 
              
 
              It would be my impression that the patient suffers from 
 
              myofascial pain syndrome and has a permanent partial 
 
              impairment of 3% of the body as a whole as a result of this 
 
              cumulative injury.  I would be hopeful that this recent 
 
              change in job description will be helpful to her.  She 
 
              certainly is employable.
 
              
 
              Dr. Neff, in his report of January 15, 1990, wrote as 
 
              follows:
 
              
 
              This patient was sent by me to Dr. Karen Kienker, and 
 
              although I disagree with her impairment rating, I would 
 
              agree with her diagnosis of myofascial syndrome.
 
              
 
              The American Academy of Orthopaedic Surgeons [sic] defines 
 
              this syndrome as "cervico-thoracic [sic] myofascial tension 
 
              state".
 
              
 
              This type of thing can arise de novo, and we see this type 
 
              of a syndrome commonly in people who are under stress.  We 
 
              see it in CPAs in the spring when taxes are ready, and we 
 
              see it in Drake students when finals are approaching. we see 
 
              it in people who are under tension or stress for a variety 
 
              of causes.
 
              
 
              To the best of my knowledge, this patient has not had 
 
              repetitive micro-trauma, because that implies activity of a 
 
              severe enough intensity to cause actual injury.  Motion of 
 
              the upper extremity and shoulder, in this circumstance, 
 
              should not actually cause repetitive trauma, but can cause 
 
              overuse.  I think there is a subtle but important 
 
              difference, if not in actuality, certainly in intent.
 
              
 
              This patient has sore muscles.  These muscles have not 
 
              responded to physical therapy, and remain tender to 
 
              palpation.
 
              
 
              In my opinion, this patient does not have a permanent 
 
              impairment with reference to her orthopaedic or 
 
              musculoskeletal system, and does not have any reason why she 
 
              could not go back to her previous job.  I believe that I 
 
              have stated that previously in other reports.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 7
 
         
 
         
 
              She does have sore muscles, which can be treated with 
 
              heating pads, hot showers, home range of motion, physical 
 
              therapy, and other modalities.  No surgery is indicated, and 
 
              no restriction from reasonable activities is warranted.
 
         
 
              The undersigned finds claimant has a permanent partial 
 
         disability.  Claimant argues she has sustained an industrial 
 
         disability in that her earning capacity has been reduced.
 
         
 
              In Iowa, a finding of impairment to the body as a whole 
 
         found by a medical evaluator does not equate to industrial 
 
         disability.  This is so as impairment and disability are not 
 
         synonymous.  Degree of industrial disability can in fact be much 
 
         different than the degree of impairment because in the first 
 
         instance reference is to loss of earning capacity and in the 
 
         latter to anatomical or functional abnormality or loss.  Although 
 
         loss of function is to be considered and disability can rarely be 
 
         found without it, it is not so that a degree of industrial 
 
         disability is proportionally related to a degree of impairment of 
 
         bodily function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 8
 
         
 
         
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Here, claimant has a loss of range of motion of the left 
 
         shoulder.  Claimant believes she has a 10 pound weight 
 
         restriction and she believes she is restricted from the 
 
         repetitive use of her left shoulder.  The evidence is not clear 
 
         whether claimant is permanently restricted.  Claimant was not 
 
         advised by any physician to terminate her employment.  This was a 
 
         purely voluntary decision, although it is noted claimant's work 
 
         station was not modified to allow goods to pass on the right side 
 
         of claimant.
 
         
 
              Claimant's age of 50 is working against her.  She does have 
 
         a high school education and transferable skills from previous 
 
         clerical positions.  Claimant has had recent training in word 
 
         processing.  Claimant is currently employed, although in a 
 
         position which pays less per hour than her former position.  Her 
 
         current position does not provide benefits.  The greater weight 
 
         of the evidence establishes that claimant has a permanent partial 
 
         disability of eight percent.  Claimant is not an odd-lot 
 
         employee.
 
         
 
              Likewise claimant is entitled to healing period benefits.  
 
         The parties have stipulated to the following weeks: April 5, 1988 
 
         to June 6, 1988, June 28, 1988 to September 11, 1988, January 18, 
 
         1989 to February 9, 1989.  This is a period of 23.143 weeks at 
 
         the stipulated rate of $202.75 per week.  In addition, the 
 
         parties stipulated claimant is entitled to temporary partial 
 
         disability benefits.for the period from September 12, 1988 to 
 
         September 16, 1988, and from October 15, 1988 to October 25, 
 
         1988.  The amount due for temporary partial disability benefits 
 
         is unknown to the undersigned.  Claimant's counsel did not put on 
 
         evidence of the amount in question.  Therefore, temporary partial 
 
         disability benefits are not allowed for September 12, 1988 to 
 
         September 16, 1988 and from October 15, 1998 to October 25, 1988.
 
         
 
              The next issue to address is the issue of medical benefits 
 
         and mileage.  Claimant testified the following are unpaid:
 
         
 
         
 
          12-22-88   Mercy Hospital (MRI)                   $  836.00
 
          01-25-89   Mercy Hospital arthrogram               1,044.59
 
          05-10-88   Madison Cty. Hospital Physical Therapy     972.00
 
          06-29-88   Madison Cty. Hospital Physical Therapy     782.00
 
                                          Total      $3,317.59
 
         
 
         Medical Mileage for 5184 miles @ $.21 per mile     $1,088.64
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The employer is obliged to furnish reasonable and necessary 
 
         medical expenses.  The undersigned determines all of the above
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page  9
 
         
 
         
 
         are causally related to claimant's work injury of April 5, 1988.  
 
         The charges appear reasonable and necessary.  Defendant Fireman's 
 
         Fund is liable for the same.
 
         
 
              The final issue deals with section 86.13 penalty benefits.  
 
         Claimant seeks additional compensation under the fourth 
 
         unnumbered paragraph of section 86.13.
 
         
 
              Section 86.13 of the Iowa Code provides in relevant portion:
 
              
 
              If a delay in commencement or termination of benefits occurs 
 
              without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              This same issue was recently addressed by Deputy Industrial 
 
         Commissioner Michael Trier in the case of Parker v. Johnsrud 
 
         Transport Inc., File Nos. 894148, 894149 (Arbitration Decision 
 
         filed on May 15, 1990).  In his decision, Deputy Trier wrote:
 
         
 
              Claimant seeks to recover additional compensation under the 
 
              fourth unnumbered paragraph of Code section 86.13.  Chapter 
 
              85 of The Code makes employers responsible for payment of 
 
              compensation for all injuries which arise out of and in the 
 
              course of employment.  Chapter 87 requires all employers to 
 
              carry liability insurance, or qualify as a self-insured, in 
 
              order to guarantee sufficient solvency to pay the weekly 
 
              benefits as the same come due under Chapter 85.  As no 
 
              weekly compensation was awarded for the February 5, 1988, 
 
              injury, there is no need to discuss the reasonableness of 
 
              the denial of payment of compensation for that injury.  The 
 
              October 28, 1988 injury, however, produced an extended 
 
              period of healing period and some permanent disability.  A 
 
              dispute between which of an employer's two insurance 
 
              carriers is liable is not a lawful defense to a claim for 
 
              benefits under Chapter 85.  In fact, section 85.21 provides 
 
              a method by which such disputes can be properly litigated 
 
              and determined without delaying or denying an otherwise 
 
              valid claim for workers' compensation benefits.  There is no 
 
              requirement for any insurance carrier to make use of section 
 
              85.21.  But, when the only bona fide, justicifiable [sic] 
 
              dispute in a case is to determine which of an employer's two 
 
              carriers is responsible for paying, it is very appropriate 
 
              to make use of section 85.21.  The law places the liability 
 
              for payment on the employer.  The primary roles of the 
 
              insurer are to act as the employer's representative for
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 10
 
         
 
         
 
              administering and paying the claim as well as a guarantee of 
 
              solvency.  When the only bona fide dispute in a case is that 
 
              of which of an employer's two carriers is liable for 
 
              payment, it is a classic, textbook example of a situation in 
 
              which the imposition of a penalty under section 86.13(4) is 
 
              fully warranted.  Failure to pay a claim is unreasonable 
 
              unless the validity of the claim is fairly debatable.  Dolan 
 
              v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988); Kimberly-Clark 
 
              Corp. v. Labor & Indus. Review Comm'n, 405 N.W.2d 685 (Wisc. 
 
              App. 1987); Anderson v. Continental Ins. Co., 271 N.W.2d 
 
              368, 376 (Wisc. 1978).  In this case, there was no 
 
              reasonable basis for denying Calvin Parker's claim for 
 
              healing period compensation following the October 28, 1988 
 
              injury.  An additional 12 weeks of compensation is therefore 
 
              awarded for the unreasonable denial of the claim....
 
         
 
              In the case before this deputy, there was no real dispute 
 
         that claimant had sustained a permanent disability.  Defendants' 
 
         own physicians, Winston and Kienker, had provided functional 
 
         impairment ratings.  The only real dispute was the dispute 
 
         between the two insurance carriers as to which carrier was 
 
         responsible for the injury on April 5, 1988.  Defendant Fireman's 
 
         Fund's letter of January 24, 1989, clearly demonstrated it did 
 
         not want to pay benefits because the company was attempting to 
 
         determine which one of two carriers was liable.  This was not a 
 
         valid defense.  Fireman's Fund did not tender payment for any 
 
         permanency until November 9, 1989.  Defendant's actions were 
 
         unreasonable.  Therefore, claimant is entitled to 15 weeks of 
 
         additional compensation for the unreasonable denial of the claim.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              For file number 910531: Defendants Fareway Stores and 
 
         Fireman's Fund are to pay forty (40) weeks of permanent partial 
 
         disability benefits to claimant at the stipulated rate of two 
 
         hundred two and 75/100 dollars ($202.75) per week commencing on 
 
         February 10, 1989.
 
         
 
              For file number 910531: Defendants Fareway Stores and 
 
         Fireman's Fund are to pay twenty-three point one-four-three 
 
         (23.143) weeks of healing period benefits at the stipulated rate 
 
         of two hundred two and 75/100 dollars ($202.75) per week.
 
         
 
              For file number 910531: Defendants Fareway Stores and 
 
         Fireman's Fund are to pay three thousand forty-one and 25/100 
 
         dollars ($3,041.25) to claimant in a lump sum, payable on the 
 
         date of this decision representing fifteen (15) weeks of compen-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 11
 
         
 
         
 
         sation payable as a penalty under the fourth unnumbered paragraph 
 
         of Iowa Code section 86.13.
 
         
 
              For file number 910531: Payments that have accrued shall be 
 
         paid in a lump sum together with statutory interest pursuant to 
 
         Iowa Code section 85.30.
 
         
 
              For file number 910531: Defendants Fareway Stores and 
 
         Fireman's Fund are liable for.the following medical expenses and 
 
         mileage:
 
         
 
         
 
          12-22-88  Mercy Hospital  (MRI)                         $  836.00
 
          01-25-89  Mercy Hospital arthrogram                      
 
         1,044.59
 
          05-10-88  Madison Cty. Hospital Physical Therapy 972.00
 
          06-29-88  Madison Cty. Hospital Physical Therapy     782.00
 
                                         Total       $3,317.59
 
         
 
         Medical Mileage for 5184 miles @ $.21 per mile     $1,088.64
 
         
 
              For file number 882959: Claimant takes nothing further from 
 
         these proceedings.
 
         
 
              Costs of these actions shall be paid by defendants, however, 
 
         defendant Aetna is only responsible for its own costs in file 
 
         number 882959.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
         
 
              Signed and filed this 27th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tom L. Drew
 
         Attorney at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         West Towers Office
 
         1200 35th St STE 500
 
         West Des Moines IA 50265
 
         
 
         
 
         
 
         MAREAN V. FAREWAY STORES, INC.
 
         Page 12
 
         
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines IA 50309
 
         
 
         Mr. Glenn Goodwin
 
         Ms. Lorraine J. May
 
         Attorneys at Law
 
         4th Floor Equitable Bldg
 
         Des Moines IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1800; 4000.2
 
                                         Filed June 27, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZABETH "JANE" MAREAN,
 
         
 
               Claimant,
 
         
 
          VS.                            File Nos. 882959 & 910531
 
         
 
          FAREWAY STORES, INC.,          A R B I T R A T I O N
 
         
 
               Employer,                    D E C I S I O N
 
         
 
          and
 
         
 
          FIREMAN'S FUND INSURANCE CO.,
 
         & AETNA LIFE AND CASUALTY,
 
         
 
               Insurance Carriers,
 
               Defendants.
 
         
 
         
 
         
 
         5-1800
 
         
 
         Claimant awarded 40 weeks of permanent partial disability 
 
         benefits for a shoulder injury.
 
         
 
         
 
         4000.2
 
         
 
         Defendant insurance carrier assessed 15 weeks of penalty benefits 
 
         where only defense was which one of two insurance carriers was 
 
         liable for benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRYAN BEMISDARFER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 882998
 
            DRAUGHN CONSTRUCTION CO.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            OHIO CASUALTY INS. CO.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Bryan Bemisdarfer, against his employer, 
 
            Draughn Construction Company, and its insurance carrier, 
 
            Ohio Casualty Insurance Company, defendants.  The case was 
 
            heard on December 11, 1991, in Des Moines, Iowa.  The record 
 
            consists of the testimony of claimant and the testimony of 
 
            Robert Levy.  The record is also comprised of exhibits 1-15.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; and, 3) 
 
            whether claimant is entitled to temporary disability/healing 
 
            period benefits or permanent disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 29 years old.  He is a high school graduate 
 
            but with no formalized training beyond the high school 
 
            level.  Claimant did participate in a three year 
 
            apprenticeship program with a plumbing contractor, Levy & 
 
            Associates, where claimant received on-the-job training.  
 
            While on the job, claimant assisted with the building of a 
 
            strip mall where claimant ran a jackhammer, put in and took 
 
            out fittings, laid plumbing pipes and acted as a plumbing 
 
            assistant.  With the passage of time, claimant's role 
 
            changed to a supervisory one.  However, the company 
 
            eventually dissolved.
 
            
 
                 Claimant testified that at all times he was able to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            perform his duties, even though he had sustained a 
 
            preexisting back condition.  The preexisting condition 
 
            necessitated back surgery in 1984 for a herniated disk.  
 
            Claimant was rated as having a five percent permanent 
 
            partial disability.  Mr. Levy testified he had no knowledge 
 
            of the preexisting back condition until claimant applied for 
 
            and received unemployment benefits.  Claimant testified he 
 
            received those benefits for approximately two months.  The 
 
            record indicates claimant commenced his employment with 
 
            defendant on Thursday, March 31, 1988.  Claimant received 
 
            wages for week ending April 1, 1988 and week ending April 8, 
 
            1988.  Defendant's records show claimant worked as follows:
 
            
 
            
 
                           Thursday,  3-31-88       8 hours
 
                           Monday,     4-4-88       8 hours
 
                           Tuesday,    4-5-88       8 hours
 
                           Wednesday,  4-6-88       8 hours
 
                           Thursday,   4-7-88       5 hours
 
                           Friday,     4-8-88       8 hours
 
            
 
                 Defendant-employer hired claimant to perform general 
 
            labor for its construction company.  Claimant was paid $6.50 
 
            per hour.
 
            
 
                 At the hearing, claimant testified he commenced his 
 
            employment with defendant approximately one month before the 
 
            date of the alleged injury.  However, records do not support 
 
            claimant's testimony.  Records indicate claimant started 
 
            just days before the alleged injury.
 
            
 
                 Prior to his employment with defendant, it appears that 
 
            in March of 1988, claimant was experiencing pain in his low 
 
            back and down into his right leg.  Claimant sought 
 
            chiropractic treatment from F. Dow Bates, D.C.  On March 22, 
 
            1988, claimant completed a patient information sheet for Dr. 
 
            Bates.  On the questionnaire, claimant indicated his 
 
            condition was not a "job incurred accident or illness."  On 
 
            page two of the same questionnaire, claimant answered the 
 
            questions as follows:
 
            
 
                 l. Explain in exact detail how and where the 
 
                    accident or exposure occured [sic].
 
            
 
                    Just over a 3 to 4 week period
 
                 Right leg and lower back began hurting.
 
            
 
                 2. Describe your symptoms in detail.
 
            
 
                    haveing [sic] trouble walking because my lower 
 
                 back      and Right leg are hurting
 
            
 
                 3. Day, date, time and hour of accident or 
 
                    exposure.
 
              15      2       88   
 
            (Day)   (Date)  (Year)              
 
            
 
                 4. List the lost time from work as a result of 
 
                    this   accident or exposure, giving the day and 
 
                    date you    first left work.     2-15-88                    
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                    .
 
            
 
                 5. Does your employer know of this accident or 
 
                    exposure?  Yes       No  X   .
 
            When did you first report it to your immediate 
 
            superior?  No      Name of superior?            
 
            .
 
            
 
                 6. Have you seen any other doctors about this 
 
                    condition?  Yes      No  X    If yes, please 
 
                    give name of doctor.                                 
 
                    .
 
            
 
                 7. Have you reported this case to any other person 
 
                    or Insurance Company? Yes     No  X   If yes, 
 
                    please give name.                                      
 
                    .
 
            
 
                 8. Have you ever had a similar condition or 
 
                    trouble before?  Yes  X   No   .
 
            
 
            
 
                    If yes, please give details, including dates 
 
                    and names of doctors who treated you.
 
                 .                                                     
 
            .
 
                 
 
                    Same  Symtoms [sic] Five or Six years ago.         .
 
            
 
                    Symtoms [sic] where [sic] corrected in about 2 
 
            months
 
            
 
                                                                  
 
            
 
                 Dr. Bates testified he treated claimant for low back 
 
            pain and right leg pain on the following dates:
 
            
 
                           Tuesday,       3-22-88
 
                           Wednesday,     3-23-88
 
                           Thursday,      3-24-88  (two treatments)
 
                           Wednesday,     3-30-88
 
                           Tuesday,        4-5-88
 
                           Wednesday,      4-6-88
 
            
 
                 Dr. Bates testified that on April 5, 1988, 
 
                 claimant voiced the following complaints:  "Back 
 
                 leg - - Back and right leg worse.  Could hardly 
 
                 lift this a.m.; 4 or 5 inches off of bed."  
 
                 (Exhibit 10, page 7, lines 15-17).
 
            
 
                 Nowhere in the records of Dr. Bates is it indicated 
 
            that a work-related injury occurred on any date.
 
            
 
                 At his hearing claimant testified he was assisting his 
 
            employer building a deck at an individual's residence.  
 
            Claimant described his work activities as setting in 4 x 4 
 
            posts, digging holes, filling the post holes with concrete, 
 
            carrying wood and 50 pound bags of concrete.  Claimant 
 
            testified he was bent over and nailing boards for the deck 
 
            when he heard a pop in his back.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was unclear relative to the events subsequent 
 
            to the alleged work injury.  He was uncertain whether he 
 
            stopped at his chiropractor's office on that date and then 
 
            went to the hospital, or whether he had been to the 
 
            chiropractor on two successive dates and then sent to the 
 
            hospital by his chiropractor.
 
            
 
                 Claimant was not an accurate historian.  However, 
 
            records establish that claimant was admitted to the 
 
            hospital.  Marshall Flapan, M.D., performed a 
 
            "hemilaminotomy right L4-5 with exploration of nerve and 
 
            repeat laminotomy L5-Sl on the right and a diskectomy."  Dr. 
 
            Flapan released claimant from his care on January 2, 1989.
 
            
 
                 A sworn statement was taken of Terri Bemisdarfer, then 
 
            wife of claimant.  At the time of the sworn statement, Terri 
 
            and the claimant were married, but separated.  Ms. 
 
            Bemisdarfer stated under oath that:
 
            
 
                    Q.  At that time did Bryan say anything else to 
 
                 you about his possible employment with Draughn 
 
                 Construction?
 
            
 
                    A.  He told me he thought he should take the 
 
                 job because he knows his back was going to go out, 
 
                 and if he took the job, he would be under 
 
                 workmen's comp., and that way he'd get all the 
 
                 medical bills taken care of like the first time 
 
                 plus get a weekly paycheck.
 
            
 
                    Q.  Was there anybody else present at that time 
 
                 when he told you that?
 
            
 
                    A.  I don't think so.
 
            
 
                    Q.  Do you remember roughly when it was that 
 
                 you had that conversation with Bryan when he told 
 
                 you that?
 
            
 
                    A.  Just to cite like the others, during the 
 
                 time he was on unemployment.
 
            
 
                    Q.  Obviously, before he started work with 
 
                 Draughn Construction?
 
            
 
                    A.  Right.  Right.
 
            
 
                    Q.  Did you say anything to him at that time?
 
            
 
                    A.  As far as?
 
            
 
                    Q.  What his intentions were.
 
            
 
                    A.  I told him he shouldn't do that because as 
 
                 bad as he hurt, he could hurt himself, but he 
 
                 said, "I'll have to suffer through it because I'm 
 
                 not going to be without a paycheck.  If I work 
 
                 with him, I know it will go out, and I'll get 
 
                 coverage and go see a chiropractor and get some 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 treatment;" and he'd pop him or this and that or 
 
                 whatever and get some relief so he could start the 
 
                 job at least.
 
            
 
                    Q.  Who are you referring to when you say "work 
 
                 with him"?
 
            
 
                    A.  Before Larry -- before he could go to work 
 
                 with Larry, the chiropractor could get him some 
 
                 relief.
 
            
 
                    Q.  What did he do next?
 
            
 
                    A.  He went to a chiropractor.  I can't 
 
                 remember if he went ahead and told Larry first yes 
 
                 or no that he would.  I think he did, but I'll not 
 
                 swear to that but -- I believe he did because I 
 
                 remember him telling the chiropractor that he was 
 
                 having some pain and he was offered a job, I 
 
                 believe is what he said, and he needed to get some 
 
                 relief from the pain so he could do this job that 
 
                 was coming up.
 
            
 
                    Q.  Did Bryan tell you that he was going to go 
 
                 see a chiropractor?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Did he see a chiropractor?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Who was the chiropractor he saw?
 
            
 
                    A.  Dr. Bates.
 
            
 
                    Q.  He is in Des Moines?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  That is before he started with Draughn 
 
                 Construction?
 
            
 
                    A.  Right.
 
            
 
                    Q.  Did Bryan tell you the reasons why he was 
 
                 seeing this chiropractor?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  What were they?
 
            
 
                    A.  To give him relief from the pain and try 
 
                 and help him so he could start this job with 
 
                 Draughn Construction.
 
            
 
            (Ex. 11, p. 16, l. 13 through p. 19, l. 3.
 
            
 
                 Ms. Bemisdarfer also testified that:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    Q.  Did Bryan give you any specifics about how 
 
                 he allegedly injured himself on the job at 
 
                 Draughn?
 
            
 
                    A.  He more or less said he was on the deck and 
 
                 bending down and over, and he told them the same 
 
                 thing; there wasn't one specific thing that did 
 
                 it.  When they filed the papers, Larry and his 
 
                 wife were asking the questions, and they said, "Is 
 
                 there one specific incident that did it?"  and he 
 
                 said, "No, it just built up and went."
 
            
 
                    Q.  Any other conversations with Bryan about 
 
                 what his plans would be with worker's compensation 
 
                 as far as receiving any benefits, what he was 
 
                 planning to do with the money or --
 
            
 
                    A.  He had a lot of plans what to do with the 
 
                 money.  He wasn't going to be without pay, and so 
 
                 this was the only way he could do it and have 
 
                 money coming in, so that's what had to be done, 
 
                 and I was to leave him alone because he wasn't 
 
                 going to go through my insurance company and be 
 
                 without money.
 
            
 
                    Q.  What were his plans with the money?
 
            
 
                    A.  You mean the weekly or the settlement?
 
            
 
                    Q.  Weekly.
 
            
 
                    A.  Just to live, more or less.  He said he was 
 
                 to have that money to live and not be without it.
 
            
 
            (Ex. 11, p. 26, l. 4 through p. 27, l. 5)
 
            
 
                 A sworn statement was also taken from Donna Anderson, 
 
            then mother-in-law of claimant.  She stated that:
 
            
 
                    Q.  And were you aware of his physical 
 
                 condition prior to his employment at Draughn 
 
                 Construction, which began in approximately April 
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 of 1988?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  And can you tell me, please, what you know 
 
                 or what you knew about his condition?
 
            
 
                    A.  I know that he had hurt his back.  How, I'm 
 
                 not sure how he hurt it, but I know he was in a 
 
                 lot of pain.  It was bothering -- it was his lower 
 
                 back and down into his leg, and he was complaining 
 
                 about it a lot.  That is why he went to the 
 
                 chiropractor.
 
            
 
                    Q.  Now, would he make these complaints of pain 
 
                 to you?
 
            
 
                    A.  Yes.  He was over to my house at different 
 
                 times when he was in severe pain, and I could tell 
 
                 just by the way he walked, and he was complaining 
 
                 about the pain.
 
            
 
                    Q.  And this would have been approximately 
 
                 when?  Several months before April of 1988 before 
 
                 he started at Draughn Construction?
 
            
 
                    A.  This was not several months.  This was just 
 
                 a while before.  I mean, his back may have hurt 
 
                 him, but I'm talking about the intense pain, and 
 
                 it was just a little while before he took that 
 
                 job.
 
            
 
                    Q.  So then roughly we're talking about March 
 
                 of 1988?
 
            
 
                    A.  Right.
 
            
 
                    Q.  Any other statements that he made to you 
 
                 that made you aware of his physical condition as 
 
                 far as any other pain, or did he add anything else 
 
                 to what you've already told us?
 
            
 
                    A.  Just about the pain?
 
            
 
                    Q.  Yeah.
 
            
 
                    A.  Just that I know he had had a hard time 
 
                 walking.  I saw him limping and he sat over there, 
 
                 and he was in a lot of pain.  And at one time he 
 
                 got up and went home.  He had planned on staying 
 
                 the evening, and he got up and went home because 
 
                 he said he was in such pain.
 
            
 
                    Q.  Now, when he made these statements to you 
 
                 when you were aware of these statements, did he 
 
                 make them directly to you, or were there other 
 
                 family members that were also present?
 
            
 
                    A.  Actually, it was in front of my daughter 
 
                 because she was there with him.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                    Q.  Your daughter is?
 
            
 
                    A.  Terry Bemisdarfer.
 
            
 
            (Ex. l2, p. 4, l. 6 through p. 6, l. 5)
 
            
 
                                conclusions of law
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 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.  The words "arising out of" refer to the 
 
            cause or source of the injury.  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (Iowa 1971).
 
            
 
                 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, 354
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 
 
            296, 297 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 In the instant case, the record was filled with 
 
            inconsistencies.  Claimant's recollection of the alleged 
 
            work injury of April 8, 1988, was hazy at best.  In the 
 
            statement written April 26, 1988, claimant wrote that his 
 
            back began hurting when he was digging post holes on March 
 
            31, 1988.  He denied any problems with his back once his 
 
            first surgery was completed.  However, Dr. Bates' records 
 
            indicate claimant had back problems as of February 15, 1988, 
 
            and that the back problems were unrelated to work.  Claimant 
 
            visited the chiropractor prior to his employment with 
 
            defendant.
 
            
 
                 Claimant was a very poor historian.  He was unable to 
 
            recall sequences.  At the hearing, the undersigned was 
 
            unable to determine whether claimant was claiming that his 
 
            injury was cumulative or whether claimant was alleging that 
 
            the post digging incident or the board nailing incident 
 
            caused his back condition.  The incidents were not described 
 
            clearly.
 
            
 
                 Claimant's testimony was successfully challenged by the 
 
            sworn statements of his ex-wife, Terri and her mother.  
 
            Their statements corroborated the records of Dr. Bates.  
 
            Claimant was not credible.  He did have back problems prior 
 
            to his first day of work with defendant.  Claimant's back 
 
            problems were not related to his short term employment with 
 
            defendant.  Claimant failed to meet his burden of proof.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Costs are assessed to claimant pursuant to rule 343 IAC 
 
            4.33. 
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Pennington
 
            Attorney at Law
 
            620 Fleming Building
 
            218 Sixth Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         1100; 1400; 1402.20;
 
         1402.30; 2902
 
         Filed March 18, 1992
 
         MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         BRYAN BEMISDARFER,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 882998
 
         DRAUGHN CONSTRUCTION CO.,     :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         OHIO CASUALTY INS. CO.,       :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         1100; 1400; 1402.20; 1402.30; 2902
 
         
 
              Claimant could not prove by a preponderance of the evidence 
 
         that he had sustained an injury which arose out of and in the 
 
         course of his employment.  The record was filled with inconsisten
 
         cies.  Claimant's recollection of the alleged work injury of 
 
         April 8, 1988, was hazy at best.  In the statement written April 
 
         26, 1988, claimant wrote that his back began hurting when he was 
 
         digging post holes on March 31, 1988.  He denied any problems 
 
         with his back once his first surgery was completed.  However, Dr. 
 
         Bates' records indicate claimant had back problems as of February 
 
         15, 1988, and that the back problems were unrelated to work.  
 
         Claimant visited the chiropractor prior to his employment with 
 
         defendant.
 
         
 
              Claimant was a very poor historian.  He was unable to recall 
 
         sequences.  At the hearing, the undersigned was unable to deter
 
         mine whether claimant was claiming that his injury was cumulative 
 
         or whether claimant was alleging that the post digging incident 
 
         or the board nailing incident caused his back condition.  The 
 
         incidents were not described clearly.
 
         
 
              Claimant's testimony was successfully challenged by the 
 
         sworn statements of his ex-wife, Terri and her mother.  Their 
 
         statements corroborated the records of the chiropractor.  
 
         Claimant was not credible.  He did have back problems prior to 
 
         his first day of work with defendant.  Claimant's back problems 
 
         were not related to his short term employment with defendant.  
 
         Claimant failed to meet his burden of proof.
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         JANICE L. ADAMS,  	   :
 
		                   :
 
              Claimant,		   :
 
		                   :
 
		         vs.       :
 
        		           :   File Nos. 883281/910528
 
         K-PRODUCTS, INC., 	   :
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
		                   :
 
         GENERAL CASUALTY COMPANIES,:
 
                   		   :
 
              Insurance Carrier,   :
 
                   		   :
 
		         and       :
 
		                   :
 
         SECOND INJURY FUND OF IOWA,:
 
                		   :
 
              Defendants.    	   :
 
         ___________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 26, 1991 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Theodore E. Karpuk
 
         Attorney at Law
 
         P.O. Box 1768
 
         Sioux City, Iowa 51102
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 26, 1991
 
            Byron K. Orton
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            JANICE L. ADAMS, 	      :
 
                      		      :
 
                 Claimant, 	      :
 
                      		      :
 
		            vs.       :
 
                		      :   File Nos. 883281/910528
 
            K-PRODUCTS, INC.,         :
 
		                      :        A P P E A L
 
                 Employer, 	      :	
 
		                      :      D E C I S I O N
 
            		and	      :
 
                      		      :
 
            GENERAL CASUALTY COMPANIES,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                      		      :
 
		            and       :
 
                		      :
 
            SECOND INJURY FUND OF IOWA,:
 
                      		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 26, 
 
            1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108
 
                      Filed
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JANICE L. ADAMS,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File Nos. 883281
 
            K-PRODUCTS, INC.,   :                910528
 
                      :
 
                 Employer, :    A R B I T R A T I O N
 
                      :
 
            and       :       D E C I S I O N
 
                      :
 
            GENERAL CASUALTY COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant sustained an injury to her left thumb, and was paid 
 
            permanent partial disability benefits.  One year later, she 
 
            claimed that the left thumb injury caused left and right 
 
            shoulder problems.
 
            Claimant had never complained of these problems until an IME 
 
            was performed one year after the initial injury.
 
            Claimant denied further benefits.