Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            E. DEAN SMITH,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 888079
 
            CHURCHILL TRUCKLINES, INC.,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Earl 
 
            Dean Smith against Churchill Trucklines, Inc., his employer, 
 
            and Liberty Mutual Insurance Company.  Claimant seeks 
 
            compensation for the permanent disability which was 
 
            proximately caused by his August 12, 1988 injury.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on September 11, 1990.  The evidence consists of joint 
 
            exhibits 1 through 5, 6a, 6b, 6c, claimant's exhibits 7 and 
 
            8, defendants' exhibits 9, 10, 11 and 12, and testimony from 
 
            Earl Dean Smith, Allan G. Fuller, Paul Ficken and Lorraine 
 
            Hackett.  Official notice was taken of file number 511618 
 
            which is the file which deals with a prior injury affecting 
 
            Earl Dean Smith.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Earl Dean Smith is a 59-year-old married man who has 
 
            lived in Des Moines, Iowa since 1950.  He is a high school 
 
            graduate who has been in the trucking industry since 1954.  
 
            Prior to that time, he had farmed for several years and also 
 
            worked briefly for John Deere & Company.  His work in the 
 
            trucking industry was initially in the moving business where 
 
            he loaded, unloaded and drove moving vans.  He also worked 
 
            in the warehouse.  At one point, he estimated in order to 
 
            bid moving jobs.
 
            
 
                 In 1972, Smith became employed by Churchill Trucklines, 
 
            Inc., a general commodities carrier.  He loaded trailers and 
 
            straight trucks for deliveries.  In 1978, he injured his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            back while handling a crate and underwent back surgery.  
 
            Later in 1978, he had surgery performed upon his neck by 
 
            Robert Jones, M.D.  He returned to work in 1982 after 
 
            recuperating from those injuries and surgeries.
 
            
 
                 During the first four years of his return to work, he 
 
            bid into a job where he made round trips with freight 
 
            between Des Moines and Kansas City.  During the most recent 
 
            four years, he was on a city job where he unloaded trailers 
 
            and placed freight into delivery trucks.  He considered the 
 
            work to be heavier than the Kansas City run.  He was earning 
 
            approximately $15.00 per hour and had a very good fringe 
 
            benefit package.
 
            
 
                 On August 12, 1988, a carton weighing approximately 80 
 
            pounds slipped out of his hands while he was loading a 
 
            trailer.  The carton hit him on the top of his head causing 
 
            him to fall to the floor, landing on his buttocks.  When the 
 
            discomfort did not resolve, he sought treatment from the 
 
            company doctor who in turn referred him to S. Randy Winston, 
 
            M.D.  Smith was off work for a few days in August, but then 
 
            returned to work and continued working until March.  He 
 
            explained that he kept working because he needed money and 
 
            did not want to undergo more surgery.
 
            
 
                 Dr. Winston diagnosed him as having cervical radicular 
 
            compression at the C7 and C8 levels of his spine.  Claimant 
 
            was evaluated by Steven R. Adelman, D.O., who agreed that 
 
            surgical decompression surgery would be appropriate (exhibit 
 
            3).  On March 22, 1989, cervical laminectomy surgery with 
 
            decompression of the nerve roots was performed from the C6 
 
            through the T1 level of Smith's spine (exhibit 2; exhibit 
 
            5).  Consistent with the stipulation of the parties, Dr. 
 
            Winston had reported that claimant reached a plateau in his 
 
            recovery on or about July 20, 1989 (exhibit 1d).  Dr. 
 
            Winston went on to state that the 1988 injury had produced a 
 
            15 percent permanent functional impairment of claimant's 
 
            body as a whole.  He further recommended that claimant 
 
            should not engage in employment which would require lifting 
 
            more than 20 pounds or any repetitive lifting.  Dr. Winston 
 
            stated that claimant was precluded from working as a truck 
 
            driver (exhibit 1d).  In a subsequent report, Dr. Winston 
 
            related that claimant should be able to return to work in a 
 
            sedentary occupation which would allow him to get up and 
 
            move about periodically.  He had no problem with claimant 
 
            dispatching or answering a telephone, but did object to 
 
            claimant doing general cleaning and painting work (exhibit 
 
            1e).
 
            
 
                 Smith did not make any significant efforts to resume 
 
            employment with his employer.
 
            
 
                 On July 12, 1988, R. J. Foley, M.D., examined claimant 
 
            and reported that he agreed with Dr. Winston to the extent 
 
            that claimant is permanently disabled from any type of 
 
            employment which requires full use of the back, neck and 
 
            extremities.  He agreed with a 12 percent disability rating 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            (exhibit 4).
 
            
 
                 In early 1990, Lorraine Hackett, a vocational 
 
            consultant, became involved in claimant's case.  She 
 
            conducted vocational testing and a transferrable skills 
 
            analysis.  She developed a number of targeted jobs which she 
 
            felt would be appropriate for the claimant (exhibit 6).
 
            
 
                 During the summer of 1990, claimant was offered two or 
 
            three different positions by his employer, positions which 
 
            appear to have been ones which the claimant quite possibly 
 
            would have been capable of performing adequately (exhibits 
 
            6b and 6c).  Claimant declined to accept any of the offered 
 
            positions because he felt that there were parts of the jobs 
 
            which exceeded his physical capacities and also because he 
 
            felt he did not have the background and experience which 
 
            would be required for performing those jobs.  Those jobs 
 
            with Churchill Trucklines would have provided a level of 
 
            income comparable to that which he had been earning with the 
 
            company.
 
            
 
                 Lorraine Hackett also developed a number of job 
 
            prospects, but claimant declined to follow up on those 
 
            prospects.  Those jobs would have involved a reduction of 
 
            income which would have been greater than 50 percent in 
 
            comparison to what claimant had been earning with Churchill 
 
            Trucklines.  They would have also provided a very large 
 
            reduction in fringe benefits.
 
            
 
                 Claimant declined to accept any of the jobs or to make 
 
            any efforts to resume employment.  He quite frankly stated 
 
            that he preferred to retire and possibly travel.  He has 
 
            applied for and been awarded Social Security disability 
 
            benefits.  He testified at hearing that he had applied for 
 
            his Teamsters pension and expected no problem in obtaining 
 
            it.  Claimant's decision to retire under the circumstances 
 
            appears quite reasonable.  His lack of employment and 
 
            earnings from employment is not an accurate reflection of 
 
            his earning capacity.  It does not establish that he is 
 
            totally disabled.
 
            
 
                 It is specifically found that Earl Dean Smith probably 
 
            could have resumed employment in one of the positions 
 
            offered by Churchill Trucklines and that, if he had done so, 
 
            he would not have experienced any reduction in his actual 
 
            earnings.  It is further found that Earl Dean Smith was 
 
            physically capable of performing some of the prospective 
 
            jobs which had been identified by Lorraine Hackett.  If he 
 
            had accepted any of those positions, he would have 
 
            experienced a reduction in his actual earnings exceeding 50 
 
            percent.
 
            
 
                 The assessment of his disability and physical 
 
            restrictions as made by Dr. Winston is accepted as being 
 
            correct.
 
            
 
                                conclusions of law
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 12, 
 
            1988 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The reports from Dr. Winston clearly relate claimant's 
 
            present disability to the 1988 injury.  It is clear that he 
 
            had some preexisting physical disability, but it was not 
 
            totally disabling as claimant had resumed employment for 
 
            four years following recuperation from his 1978 injuries and 
 
            surgeries.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Defendants assert that claimant's disability should be 
 
            apportioned between this injury and the 1978 injury.  They 
 
            are correct in the sense that their liability is only for 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            the degree of disability which is proximately caused by the 
 
            1988 injury.  Industrial disability is not, however, a 
 
            mathematically precise concept.  It is not something which 
 
            can be determined through a mathematical formula.  The loss 
 
            of earning capacity which is to be compensated in this case 
 
            is the reduction based upon the earning capacity that 
 
            existed immediately prior to the injury on August 12, 1988, 
 
            not the earning capacity that the claimant might have had 
 
            immediately prior to his 1978 injury or at any other point 
 
            in his life.  The 1978 injury reduced this claimant's 
 
            earning capacity.  That residual earning capacity which 
 
            existed immediately prior to the 1988 injury then became 100 
 
            percent of Earl Dean Smith's earning capacity.  All 
 
            individuals differ in their earning capacities based upon 
 
            their individual skills, strengths and weaknesses.  An 
 
            individual's earning capacity in all likelihood changes 
 
            through his lifetime.  One individual who has sustained a 50 
 
            percent loss of earning capacity due to an injury may still 
 
            have more earning capacity than some other individual who 
 
            has never been injured.  The earning capacity is reflected 
 
            to some extent by the actual earnings which in turn 
 
            determine the weekly rate of compensation.  Whenever 
 
            industrial disability is determined, it is based upon the 
 
            earning capacity that existed immediately prior to the 
 
            injury rather than some abstract concept of the earning 
 
            capacity of the perfect, unimpaired individual.  In this 
 
            case, it is determined that the 1988 injury proximately 
 
            caused a 30 percent reduction in this claimant's earning 
 
            capacity, as that earning capacity had existed immediately 
 
            prior to August 12, 1988.  This entitles claimant to receive 
 
            150 weeks of compensation.
 
            
 
                 Defendants are entitled to credit for all weekly 
 
            compensation for permanent partial disability which has been 
 
            previously paid.  The amount of the credit is based upon the 
 
            number of dollars paid.
 
            
 
                 Claimant seeks to recover costs consisting of his 
 
            $65.00 filing fee and $50.00 for a medical report.  The 
 
            amounts are reasonable and fall within the matters 
 
            contemplated by 343 IAC 4.33.  They will therefore be 
 
            assessed against defendants since claimant has prevailed in 
 
            his claim.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Earl Dean 
 
            Smith one hundred fifty (150) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of four 
 
            hundred and 58/100 dollars ($400.58) per week payable 
 
            commencing July 21, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants receive credit 
 
            against the foregoing award for the amount of permanent 
 
            partial disability compensation previously paid.  Any unpaid 
 
            past due amounts shall be paid in a lump sum together with 
 
            interest pursuant to Iowa Code section 85.30.
 
            
 

 
            
 
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                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants in the amount of one hundred 
 
            fifteen and 00/100 dollars ($115.00) pursuant to 343 IAC 
 
            4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue
 
            Suite 201
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 1806
 
                           Filed November 20, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            E. DEAN SMITH, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 888079
 
            CHURCHILL TRUCKLINES, INC.,   :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803
 
            Fifty-nine-year-old truck driver with a history of three 
 
            back and neck surgeries elected to retire rather than return 
 
            to jobs offered by the employer or located by a vocational 
 
            consultant.  Awarded 30 percent permanent partial 
 
            disability.
 
            
 
            1806
 
            In case where there was preexisting industrial disability, 
 
            it was held that the permanent partial disability was not 
 
            apportioned strictly, but that the percent of permanent 
 
            partial disability was based on earning capacity immediately 
 
            prior to the most recent injury rather than that which might 
 
            have existed at some earlier time in the claimant's life.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ISABELLE SEXTON,                :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 888085
 
            MANATTS, INC.,                  :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE        :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUE
 
            
 
                 The issue on appeal is:  Whether claimant proved that 
 
            decedent's death arose out of and in the course of his 
 
            employment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Earl J. Sexton ("decedent"), 57 hears of age on July 
 
            28, 1988, was employed by defendant Manatts, Inc., as a 
 
            "fine grade foreman," in charge of a highway construction 
 
            crew.  The crew, in sequence with others, was responsible 
 
            for preparing a properly-graded road bed of crushed concrete 
 
            prior to paving.  Decedent, apparently a "Type A" 
 
            personality and a demanding supervisor, was responsible for 
 
            making sure that string lines were properly set up to guide 
 
            a "trimmer" machine and regularly checking that the machine 
 
            continued to grade correctly.
 
            
 
                 Decedent kept himself in good physical condition, 
 
            frequently engaging in contests of strength with crew 
 
            members.  He was not hesitant to pitch in and perform hard 
 
            physical labor when necessary.  However, he had a number of 
 
            risk factors for cardiovascular disease, including a history 
 
            of high blood pressure, family history, elevated blood 
 
            cholesterol, history of formerly being a cigarette smoker, 
 
            use of a diuretic medication and "Type A" personality.  
 
            Nonetheless, he had never been diagnosed as suffering from 
 
            cardiovascular disease.
 
            
 
                 July 28, 1988 was a very hot day, in the vicinity of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            100 degrees Fahrenheit or even warmer.  Decedent's crew had 
 
            previously worked on a road project in Kansas and had been 
 
            exposed to similarly high temperatures for several weeks.
 
            
 
                 Decedent's normal duties were relatively light.  They 
 
            mostly involved measuring to make sure that a proper grade 
 
            was maintained by the trimmer machine and occasionally 
 
            making adjustments that trimmer machine operator Claude 
 
            Collins (who testified by deposition on February 20, 1991) 
 
            described as similar to operating a window crank, such as 
 
            could be done by his 10-year-old daughter.  On July 28, 1988 
 
            decedent's duties were lighter even than usual, since he was 
 
            in charge of two trimmer machines operating some distance 
 
            apart; he had to drive back and forth between the machines 
 
            in an air conditioned pickup truck, rather than walking 
 
            constantly behind one machine.
 
            
 
                 At approximately 2:00 or 3:00 p.m., decedent complained 
 
            to Collins of chest pain, but in a more or less light or 
 
            joking manner.  Collins suggested that he rest in the 
 
            pickup, but decedent refused.  Shortly thereafter, perhaps 
 
            two hours before his eventual collapse, decedent drove to a 
 
            service station to fill water jugs.  While there, he 
 
            reportedly mentioned his chest pains to a service station 
 
            employee, although evidence of this conversation is hearsay.  
 
            While hearsay may be admissible in an administrative 
 
            proceeding under Iowa Code chapter 17A, it comes into the 
 
            record only for what it is worth, and with the same 
 
            intrinsic weaknesses which are the basic grounds for the 
 
            general rule excluding it from evidence.  DeLong v. Highway 
 
            Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).  Nonetheless, the 
 
            finder of fact accepts the testimony of Steve Rhoads that 
 
            this "old fellow that worked in the gas station" reported to 
 
            Rhoads that decedent discussed his chest pains and asked if 
 
            the "old fellow" thought it was possibly a heart problem or 
 
            heart attack.
 
            
 
                 In any event, decedent continued to work.  Collins once 
 
            worked in a care center and has a father who has suffered 
 
            multiple heart attacks.  Collins considers himself 
 
            knowledgeable of physical signs of a heart attack, but did 
 
            not observe any such signs in decedent.
 
            
 
                 Duane McDonald is defendant's superintendent of 
 
            construction.  He stopped to check on progress at some time 
 
            after 5:00 p.m. and found decedent apparently uncomfortable, 
 
            as he was pacing in a rigid fashion and holding his arm, 
 
            apparently in pain.  He looked ill.  McDonald suggested that 
 
            decedent get in the pickup and cool off, but was refused.  
 
            Decedent hoisted a jug of water (weighing perhaps 40 pounds) 
 
            over his head to get a drink, and apparently had difficulty.  
 
            Shortly afterwards, he collapsed.  Collins called a hospital 
 
            in Ames, Iowa (approximately six miles from the work site) 
 
            at 5:24 p.m.  An ambulance was dispatched and decedent taken 
 
            to the hospital.  Repeated attempts at CPR and 
 
            defibrillation failed and Mr. Sexton expired.  The death 
 
            certificate, prepared by Rick Wilkens, M.D., certified death 
 
            as caused immediately by cardiac arrest, with probable 
 

 
            
 
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            myocardial infarction.  No autopsy was performed.
 
            
 
                 Three cardiologists have discussed the relationship 
 
            between decedent's work and his death:  Robert Kreamer, 
 
            D.O., Paul From, M.D., and Ernest Theilen, M.D.
 
            
 
                 Dr. Kreamer, testifying by deposition on behalf of 
 
            claimant on May 10, 1990, believed that decedent was 
 
            "working very hard" at the time of his collapse.  This 
 
            misunderstanding seriously affects the weight to be given 
 
            his testimony.  He believed that decedent died of 
 
            ventricular fibrillation (the heart became electrically 
 
            unstable and failed to beat in rhythm) probably caused by a 
 
            myocardial infarction (death of heart tissue through 
 
            insufficient blood, probably due to an occlusion of a 
 
            coronary artery).  Dr. Kreamer hypothesized that decedent 
 
            became dehydrated, causing his blood to become thicker and 
 
            more predisposed to clot; the thickened blood was unable to 
 
            pass a narrowed area in an artery "and when the sludge 
 
            became immovable, the tissue downstream then was not 
 
            irrigated, and the heart attack occurred."  Noting 
 
            decedent's various risk factors, Dr. Kreamer opined that the 
 
            combination of heat and emotional demands of running the 
 
            construction team combined as factors in pushing decedent 
 
            "over the brink."  Decedent was described as "an accident 
 
            looking for a place to happen."  Although, in the absence of 
 
            an autopsy, Dr. Kreamer could not be certain as to whether 
 
            decedent had suffered a myocardial infarction, his reading 
 
            of electrocardiographic tracing taken in the hospital after 
 
            his collapse indicated a "current" of injury such as is 
 
            normally seen in cases of coronary thrombosis or at least a 
 
            temporary occlusion of coronary arteries.  It was Dr. 
 
            Kreamer's opinion that cardiac patients do not tolerate heat 
 
            well, although it will be recalled that decedent was not a 
 
            cardiac patient at any time prior to his death.  He agreed 
 
            that decedent's chances of surviving would have been 
 
            increased had he sought medical attention when symptoms 
 
            first developed.  Dr. Kreamer indicated that it was not 
 
            clearly defined whether the decedent had a preexisting heart 
 
            disease.
 
            
 
                 Dr. From is a cardiologist who is board certified in 
 
            internal medicine, but not cardiology.  He testified for 
 
            defendants by deposition on May 9, 1990.  Dr. From also 
 
            misunderstood a significant background fact:  He believed 
 
            that Mr. Sexton first developed chest pain approximately 
 
            3:00 to 3:30 p.m. and collapsed at 3:30.  This error affects 
 
            the weight to be given his testimony.
 
            
 
                 Dr. From also agreed that decedent died of ventricular 
 
            fibrillation, but did not agree it was clear that decedent 
 
            had first suffered a myocardial infarction.  He really had 
 
            no opinion as to what precipitated fibrillation, although 
 
            the most likely cause would be coronary artery disease.  He 
 
            suggested that in the heat, if decedent had been sweating 
 
            and losing salt from his body, then given his history of 
 
            hypertension and medications, these things combined might 
 
            have led to arrhythmia.  In particular, Dr. From did not 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            believe that arrhythmia could be related to work activities.  
 
            However, when it was suggested to Dr. From that decedent had 
 
            suffered pain for 1-2 hours before his collapse, the chest 
 
            pain could either be related to a blockage with infarction 
 
            or merely angina.  Interestingly, Dr. From described the 
 
            heart pain of an infarction as usually starting and quickly 
 
            building in intensity, rather than gradually building up; 
 
            and, once present, remaining constant until relieved, 
 
            usually through medication.  That is, the pain is not 
 
            intermittent in nature.  Dr. From also agreed that had 
 
            decedent sought medical attention upon developing symptoms, 
 
            chances of survival would have been improved.  Dr. From 
 
            indicated that without an autopsy it was impossible to tell 
 
            whether the decedent had heart disease.
 
            
 
                 Dr. Theilen, who testified for defendants by deposition 
 
            on January 17, 1991, is board certified both in cardiology 
 
            and internal medicine.  He is a Professor of Medicine at the 
 
            University of Iowa College of Medicine.  Dr. Theilen 
 
            believed it a reasonable assumption that decedent suffered 
 
            coronary thrombosis leading to ventricular fibrillation, 
 
            although noting that, in the absence of an autopsy, there 
 
            was no way to distinguish between angina, transient 
 
            occlusion or permanent and total occlusion.  Noting that 
 
            decedent was acclimated to the temperature, he did not 
 
            believe temperature to have been a significant factor, 
 
            particularly where decedent was not doing much physical 
 
            work.  He generally did not ascribe Mr. Sexton's death to 
 
            his work activities.  Dr. Theilen agreed that decedent may 
 
            have been better off to seek medical attention when he 
 
            developed symptoms, but further noted that this was no 
 
            guarantee of survival.  Even prompt hospitalization 
 
            apparently does not improve chances of survival appreciably, 
 
            unless in a properly-equipped cardiac unit.  If, for 
 
            example, decedent had suffered an occlusion of his left main 
 
            coronary artery, there is little chance that he would have 
 
            survived despite every possible effort.  Dr. Theilen felt it 
 
            largely irrelevant as to whether decedent's earliest 
 
            symptoms were simple angina or the actual beginning of a 
 
            myocardial infarction.  That is so because there is 
 
            essentially a continuum between these states, and 
 
            fibrillation may occur at any point.  Dr. Theilen indicated 
 
            that there was no documentation that would support a 
 
            diagnosis of coronary artery disease although he assumed 
 
            that an underlying coronary disease manifested on the date 
 
            of death.
 
            
 
                 The opinions of Dr. Theilen are found to be the most 
 
            reliable.  Of the expert physicians, he alone has been shown 
 
            not to have misunderstood significant background facts.  In 
 
            addition, Dr. Theilen is board certified in cardiology.  
 
            Where opinions conflict, the views of a board-certified 
 
            physician may be accorded more weight.  Dickey v. ITT 
 
            Continental Baking Co., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 89 (1979); Richland v. Palco, Inc., 
 
            Thirty-second Biennial Report of the Industrial Commissioner 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            56 (1975).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The medical experts in this case agree that decedent 
 
            died from an acute cardiac incident.  There is insufficient 
 
            evidence in the record to find that decedent had a 
 
            preexisting heart disease.  Dr. Kreamer indicated it was not 
 
            clearly defined whether decedent had a preexisting heart 
 
            disease.  Dr. From indicated it was impossible to tell 
 
            without an autopsy.  Dr. Theilen assumed there was coronary 
 
            artery disease but indicated there was no supporting 
 
            documentation for the diagnosis.  The suddenness of 
 
            decedent's death also indicates a lack of a preexisting 
 
            condition.  Also, no autopsy was done and decedent had never 
 
            been diagnosed as suffering from cardiovascular disease.  
 
            Therefore, the line of cases in which an employee had a 
 
            preexisting condition are not directly applicable.  Claimant 
 
            must prove entitlement to   ion 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 is whether claimant 
 
            has proved that one of the standards of the legal test has 
 
            been satisfied.
 
            
 
                 The record is clear that decedent did not engage in 
 
            "heavy exertion" or "unusually strenuous employment 
 
            exertion" compared either with his normal employment (it 
 
            will be recalled that his duties were less strenuous on the 
 
            day in question) or with the exertions of normal, 
 
            nonemployment life of decedent or any other person.  Except 
 
            for the matter of temperature, decedent's exertions on July 
 
            28, 1988, were mild.  He walked perhaps 1-3 miles over a 
 
            period of many hours, measured string with a ruler, 
 
            occasionally turned a crank similar to an ordinary house 
 
            window, and drove short distances in an air conditioned 
 
            pickup truck.  Decedent was under no particular pressure to 
 
            complete the job at any particular time, as the crew 
 
            normally worked until the allotted work for the day was 
 
            completed.  Normal procedure was to determine early how much 
 
            grading was to be done in a given day, and work until that 
 
            was completed without regard to "watching the clock" or 
 
            quitting at a predetermined time.  There was no factory 
 
            whistle to beat.  The "positional or actual risk" doctrine 
 
            adopted in heatstroke cases in Hanson v. Reichelt, 452 
 
            N.W.2d 164 (Iowa 1990) has previously been held limited to 
 
            those cases, and not applicable to heart attack cases.  See 
 
            for example Neil v. John Deere Component Works, Appeal 
 
            Decision, August 30, 1990.
 
            
 
                 Claimant has not met either of the two standards of the 
 
            legal test involving work exertion greater than normal 
 
            nonemployment life or work exertion greater than normal 
 
            work.
 
            
 
                 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, claimant has 
 
            failed to show that decedent underwent additional physical 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            or mental stress caused by delaying the acquisition of 
 
            medical assistance.  In the absence of an autopsy, it cannot 
 
            even be said that Mr. Sexton suffered a myocardial 
 
            infarction leading to fibrillation.  Obviously, Mr. Sexton 
 
            cannot testify as to his status some two or more hours prior 
 
            to his collapse.  It may well be that his early symptoms 
 
            were those of angina or crescendo angina, and not actual 
 
            heart attack symptoms.  After all, while he made complaint 
 
            to Claude Collins and, shortly thereafter, to an unnamed 
 
            service station attendant, decedent continued to work for 
 
            perhaps two hours without further complaint or showing signs 
 
            of distress to Collins, who has a practiced eye in looking 
 
            for heart symptoms.  If the early symptoms were merely 
 
            angina, it apparently cannot be said that continuing to work 
 
            worsened decedent's condition or brought on a coronary 
 
            occlusion.  After all, Mr. Sexton has been credibly 
 
            described as an accident waiting to happen.  Work activities 
 
            did not in any event appear strenuous.  When severe symptoms 
 
            came on (Mr. Sexton began pacing and holding his arm), his 
 
            collapse followed in just a few minutes.  He had a drink of 
 
            water and collapsed without apparently working during the 
 
            interim.  The span of time was so short that decedent could 
 
            not have obtained medical attention, even had he left 
 
            immediately for the hospital.  Even then, it is speculative 
 
            to believe the result would have been different, since, in 
 
            the absence of an autopsy, it cannot be said that even the 
 
            best medical attention would have saved him (for example, if 
 
            decedent did suffer an occlusion of a left main coronary 
 
            artery).  Also, given the suddenness of the clear symptoms 
 
            of the heart attack and decedent's rapid demise, it cannot 
 
            be said that decedent worked at all after the onset of 
 
            symptoms.  Furthermore, there is no evidence that decedent 
 
            felt impelled to continue working after his early 
 
            complaints.
 
            
 
                 The second issue to be determined 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 
 
            in a situation involving an employee with a preexisting 
 
            heart disease.  Because claimant would not satisfy the legal 
 
            test, consideration of the medical test would be for 
 
            discussion purposes only.  As discussed above, claimant has 
 
            not proved by reliable medical evidence that decedent's work 
 
            was the cause of his fatal heart attack.
 
            
 
                 In summary, there was no supporting medical evidence 
 
            that decedent had a preexisting heart disease.  Claimant did 
 
            not prove that decedent's fatal heart attack was caused by 
 
            his employment.  Even if the decedent did have a preexisting 
 
            heart condition, claimant met neither the legal nor the 
 
            medical test for proving decedent's heart attack arose out 
 
            of and in the course of his employment.  Decedent's fatal 
 
            heart attack did not arise out of and in the course of his 
 
            employment.
 
            
 
                 WHEREFORE, the decision of the deputy is reversed.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from this proceeding.
 
            
 
                 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. Douglas A. Fulton
 
            Attorney at Law
 
            820 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. James C. Huber
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
                                           1100; 1108.10; 2202
 
                                           Filed September 30, 1992
 
                                           Byron K. Orton
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ISABELLE SEXTON,                :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 888085
 
            MANATTS, INC.,                  :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            LIBERTY MUTUAL INSURANCE        :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            1100; 1108.10; 2202
 
            There was insufficient evidence to find that decedent had a 
 
            preexisting heart disease.  The reliable medical evidence 
 
            indicated that the work did not cause decedent's heart 
 
            attack.
 
            It was also discussed that 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.
 
            Decedent's work duties were very light, involving only some 
 
            walking, turning a crank similar to a window crank, 
 
            measuring strings with a ruler and driving between sites in 
 
            a pickup truck.  However, temperatures were very high.  The 
 
            facts did not indicate that decedent worked after the onset 
 
            of his acute heart attack.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ISABELLE SEXTON (surviving    :
 
            spouse of EARL SEXTON),       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888085
 
            MANATTS, INC.,                :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Isabelle 
 
            Sexton, claimant, against Manatts, Inc., employer 
 
            (hereinafter referred to as Manatts), and  Liberty Mutual 
 
            Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of the death of 
 
            Earl Sexton on July 28, 1988.  On March 11, 1991, a hearing 
 
            was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employer-employee relationship existed between 
 
            decedent, Earl Sexton, and Manatts at the time of Earl 
 
            Sexton's death.
 
            
 
                 2.  With reference to claimant's rate of weekly 
 
            compensation, it was agreed that decedent was married and 
 
            entitled to two exemptions at the time of his death.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 The issues submitted by the parties for determination 
 
            in this proceeding are:
 
            
 
                 I.  Whether Earl Sexton's death arose out of and in the 
 
            course of his employment with Manatts; and
 
            
 
                 II.  The extent of claimant's entitlement to death 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 (Note:  Decedent will hereinafter be referred to as 
 
            Earl).
 
            
 
                 Earl was 57 years old at the time of his death.  The 
 
            testimony of his wife, fellow workers and supervisors at 
 
            Manatts established that Earl was a very committed, hard 
 
            working employee.  Earl was a "fine grade foreman" or in 
 
            charge of a crew which prepared the level or grade of a 
 
            roadway just prior to the laying of concrete.  Earl took 
 
            great pride in his work and was very demanding of not only 
 
            his employees but of himself.  He was also hot tempered and 
 
            had quit for a short period of time two weeks prior to his 
 
            death in a dispute with Manatts.  Manatts' superintendent 
 
            referred to him as a grumpy supervisor.  Earl took pride in 
 
            keeping his body in shape and was not a complainer.  He was 
 
            not overweight.  Immediately prior to his death, he was 
 
            watching his diet and exercising regularly.  Earl was the 
 
            type of person that would shrug off or discount physical 
 
            pain.
 
            
 
                 On or about July 28, 1988, while performing his duties 
 
            at Manatts, Earl suffered a heart attack, collapsed and died 
 
            shortly before 5:25 p.m., the recorded time the emergency 
 
            service received a call from a Manatts employee.  Shortly 
 
            before his collapse, Earl had just returned from a nearby 
 
            service station to fill his water jugs.  After first 
 
            delivering a jug to one of his employees, Earl began to pace 
 
            and hold his arm as if in pain according to Manatts' 
 
            superintendent who was standing next to him.  Earl then took 
 
            a drink of water and collapsed.  Fellow employees began CPR 
 
            and this was continued after the arrival of paramedics who 
 
            also attempted defibrillation.  This treatment continued 
 
            until Earl arrived at the hospital and was pronounced dead.
 
            
 
                 It is found that Earl's death arose out of and in the 
 
            course of his employment at Manatts.  This finding is based 
 
            upon the views of Robert Kreamer, D.O., a cardiologist, that 
 
            Earl's job duties specifically contributed to the heart 
 
            attack and his death.  It is also based upon the combined 
 
            views of Dr. Kreamer and two other cardiologists who 
 
            testified in this case, Paul From, M.D., and Ernest Theilen, 
 
            M.D., with reference to the consequences of Earl's decision 
 
            to stay on the job and not seek medical care after the onset 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of chest pains approximately one and one-half hours prior to 
 
            his collapse and death.
 
            
 
                 Earl had preexisting coronary heart disease.  Although 
 
            no autopsy was performed and there was no prior medical 
 
            diagnosis or treatment of heart disease, this finding is 
 
            based upon the views of Dr. Kreamer and Dr. Theilen who 
 
            opined to a reasonable degree of medical certainty that 
 
            claimant had coronary artery disease which contributed to 
 
            his death.  This disease was not symptomatic or disabling 
 
            until Earl's death.  These physicians based their opinions 
 
            upon Earl's prior history of high blood pressure, which was 
 
            being treated at the time of his death with diuretic 
 
            medication; Earl's history of high cholesterol in his blood 
 
            stream; and the events on the day of Earl's death.  Contrary 
 
            views received into the evidence from Dr. From were not 
 
            convincing and were outweighed by the other two 
 
            cardiologists.
 
            
 
                 Immediate cause of Earl's death was ventricular 
 
            fibrillation.  This was caused by myocardial infarction or 
 
            death of a portion of Earl's heart muscle.  The infarction 
 
            was due to blockage from a blood clot in a narrowed portion 
 
            of one Earl's coronary arteries.  This finding is based upon 
 
            the views of cardiologists Kreamer and Theilen.  Although 
 
            they could not be scientific certain due to the absence of 
 
            an autopsy, they felt this was more likely than not the 
 
            sequence of death from the circumstances.  Again, contrary 
 
            views from Dr. From were not convincing and were outweighed 
 
            by the views of the other two cardiologists.
 
            
 
                 According to Dr. Kreamer, Earl's job duties on the date 
 
            of death were a significant contributing factor in 
 
            precipitating the onset of the myocardial infarction.  The 
 
            day in question was very hot.  A fellow employee testified 
 
            in his deposition that the temperature was well over 100 
 
            degrees and Earl was performing his duties in even a hotter 
 
            area near a running engine on the grade machine that was 
 
            being operating by the fellow employee.  Although Earl's 
 
            actual physical labor that day was very minor in that he was 
 
            simply measuring the grade with rulers while walking along 
 
            next to the machine, he still was performing his work in a 
 
            hot environment and was under the mental stress of his job.  
 
            Both Dr. From and Dr. Theilen rejected a causal connection 
 
            of claimant's job duties to the onset of the heart attack.  
 
            Dr. From's views were rejected largely because of his 
 
            misdiagnosis of the immediate cause of Earl's death, as 
 
            explained above.
 
            
 
                 Dr. Theilen's views were rejected because he was not 
 
            convincing in his deposition testimony.  Admittedly, Dr. 
 
            Theilen is a professor of medicine at the University of Iowa 
 
            Hospitals and Clinics and is board certified.  However, two 
 
            aspects of his testimony did not make much sense to this 
 
            deputy commissioner.  The first problem was a total 
 
            rejection by Dr. Theilen that the heat that day played any 
 
            role in the death sequence.  Dr. Theilen admitted that heat 
 
            does cause stress on the heart but stated that simply 
 
            because it was 100 degrees that day meant nothing as it 
 
            would have to also involve high humidity.  He theorized that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            even if it were that hot, low humidity as would be 
 
            experienced in a desert environment would cause little 
 
            stress on the heart.  As a lifelong resident of the state of 
 
            Iowa, it is absurd to suggest that a late July day could 
 
            resemble desert heat.  After all, we must approach these 
 
            issues with some semblance of common sense.  Although Dr. 
 
            Theilen took issue with Dr. Kreamer as to Earl's dehydration 
 
            stating that Earl had plenty of liquids available, it 
 
            apparent Dr. Theilen failed to realize that claimant had to 
 
            travel to a nearby service station to fill water jugs.  
 
            Access to water was certainly limited and delayed.  Dr. 
 
            Kreamer, in his deposition, mentioned that Earl was 
 
            performing strenuous work that day.  Although the actual 
 
            physical tasks Earl was performing are not demanding for a 
 
            normal heart, given Earl's diseased heart, the high 
 
            temperatures and the emotional stress of supervision was 
 
            extremely strenuous for Earl.  Although Earl was a long-time 
 
            construction worker and was accustomed to physical work and 
 
            adverse working conditions, such work at those temperatures 
 
            was more than the physical and emotional stress of everyday, 
 
            non-employment, looking at the general population of this 
 
            nation as a whole.
 
            
 
                 Independent of the finding that Earl's work duties were 
 
            a significant cause of the myocardial infarction, it is also 
 
            found that Earl's employment was the cause of death due to 
 
            Earl's decision to ignore chest pain complaints and remain 
 
            on the job approximately an hour and a half before his 
 
            death.  Fellow employees even advised at that time he seek 
 
            medical care for a possible heart attack.  There was ample 
 
            time after the onset of chest pain to obtain coronary care 
 
            as Earl was working only a few miles from a major metro area 
 
            in the state of Iowa.  According to all the cardiologists 
 
            who testified, Earl's decision to not seek medical care and 
 
            to remain on the job significantly reduced his chances of 
 
            survival.
 
            
 
                 It is more likely than not that although ventricular 
 
            fibrillation may not have been avoided, had Earl sought 
 
            care, he would have been placed on a monitor and treated and 
 
            fibrillation could have been treated immediately as soon as 
 
            it occurred.  Dr. Theilen stated that chances are Earl would 
 
            be alive today if he had sought such immediate treatment 
 
            after the first onset of pain.
 
            
 
                 It is found that claimant, Isabelle Sexton, is the 
 
            surviving spouse of Earl Sexton and was wholly dependent 
 
            upon Earl for her support at the time of his death.  
 
            According to Exhibit 7, claimant's average weekly earnings 
 
            over 13 weeks prior to the injury were $688.39.  It is found 
 
            that Earl was a construction worker at the time of his death 
 
            and that he occasionally worked 12 months a year seeking 
 
            employment in the South during Winter seasons.  Decedent's 
 
            employment and occupation was not exclusively seasonal.
 
            
 
                                conclusions of law
 
            
 
                 I.  Claimant is seeking benefits as a result of the 
 
            death of her husband.  Such benefits are available under 
 
            chapter 85, Code of Iowa, because a work injury is defined 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            in the statute to include death as a result of injury.  Iowa 
 
            Code section 85.61(5)(a).  However, an employer is liable 
 
            for death benefits only if claimant establishes by a 
 
            preponderance of the evidence that the death arose out of 
 
            and in the course of employment.  The words "out of" refer 
 
            to the cause or source of the injury.  The words "in the 
 
            course of" refer to the time and place and circumstances of 
 
            the injury.   See generally Cedar Rapids Community School 
 
            District v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 In work injuries involving the heart, Iowa claimants 
 
            with preexisting circulatory heart conditions are permitted 
 
            upon proper proof to recover workers' compensation benefits 
 
            when the employment contributes something substantially to 
 
            increase the risk of injury or death.  The employment 
 
            contribution must take the form of an exertion greater than 
 
            that of employment life.  Sondag v. Ferris Hardware, 220 
 
            N.W.2d 903 (Iowa 1974).  The comparison, however, is not 
 
            with the employee's usual exertion in his employment but 
 
            with exertions of normal non-employment life of this or any 
 
            other persons.  Id.  These exertions may be physical or 
 
            emotional.  Swalwell v. William Knudson & Son, Inc., II Iowa 
 
            Indus. Comm'r Rep. 385 (Appeal Dec. 1982).  The Sondag rule 
 
            is favored by Professor Larson in his treatis on workers' 
 
            compensation.  See 1A Larson, Workmen's Compens 
 
            
 
            
 
            
 
            the deceased employee's last illness.  Iowa Code sections 
 
            85.27 and 85.29.  Claimant is further entitled to burial 
 
            expenses of decedent not to exceed the sum of $1,000.  Iowa 
 
            Code section 85.28.  Also, defendants are liable to the 
 
            Second Injury Fund in the amount of $4,000 as decedent in 
 
            this case died with dependents.  Iowa Code section 85.65.  
 
            Furthermore, weekly benefits are also available from the 
 
            employer to the surviving spouse.  Such benefits are paid in 
 
            the same amount and manner as a work injury except that 
 
            benefits are paid to the surviving spouse for life or until 
 
            remarriage.  Iowa Code section 85.31.  A surviving spouse is 
 
            conclusively presumed dependent unless there has been a 
 
            willful desertion of decedent by the spouse.  Iowa Code 
 
            section 85.41(1).
 
            
 
                 With reference to the appropriate rate of weekly 
 
            compensation in this case, the parties agreed to various 
 
            facts in the prehearing report if Iowa Code section 
 
            subsections 85.36(1) or (9) were applicable to this 
 
            situation.  It is held that neither of these code 
 
            subsections are appropriate for determination of the gross 
 
            weekly rate of compensation in this case.  Iowa Code section 
 
            85.36(1) is available only if Earl's weekly rate did not 
 
            vary.
 
            
 
                 It has long been the policy of this agency that Iowa 
 
            Code section 85.36(9) is only applicable to occupations 
 
            which are "exclusively" seasonal.  This agency has taken 
 
            official notice that construction as an occupation is 
 
            carried out on a year-round basis in this country.  Wolfe v. 
 
            Weigel & Stapf Construction Co., Thirty-three Biennial Rep., 
 
            Iowa Indus. Comm'r 221 (1977).  It has been the long-
 
            standing practice of this agency to apply Iowa Code section 
 
            85.36(6) when the earnings of an injured worker vary from 
 
            week to week, especially construction workers.  Under this 
 
            Code subsection, the last 13 "representative" weeks prior to 
 
            the injury is averaged to determine gross weekly earnings 
 
            for rate purposes.
 
            
 
                 According to the commissioner's published rate booklet 
 
            for a death occurring on July 28, 1988, and giving 
 
            claimant's gross weekly earnings of $688.39 along with 
 
            marital status and entitlement to two exemptions, as 
 
            stipulated by the parties, claimant's rate of weekly 
 
            compensation for death benefits is found to be $413.26.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant weekly death 
 
            benefits at the rate of four hundred thirteen and 26/100 
 
            dollars ($413.26) per week from July 28, 1988 until her 
 
            death or remarriage, whichever occurs first.
 
            
 
                 2.  Defendants shall pay to claimant the expenses of 
 
            her husband's last care and treatment as a result of the 
 
            heart attack and attempts to revive him as well as burial 
 
            expenses up to a maximum sum of $1,000.
 
            
 
                 3.  Defendants shall pay to the Treasurer of the State 
 
            of Iowa as custodian of the Second Injury Fund the sum of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            four thousand dollars ($4,000).
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 7.  Defendants shall file activity reports upon payment 
 
            of this award as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this _____ day of May, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Douglas A Fulton
 
            Attorney at Law
 
            820 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            Mr James C Huber
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108; 3001
 
                      Filed May 13, 1991
 
                      Larry P. Walshire
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ISABELLE SEXTON (surviving    :
 
            spouse of EARL SEXTON),       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888085
 
            MANATTS, INC.,                :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Heart attack death case.
 
            
 
            3001
 
            
 
            Claimant's occupation as a road construction supervisor was 
 
            not exclusively seasonal.  Rate arrived at by averaging last 
 
            thirteen weeks before death.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLENDA J. SCHOENHERR,
 
         
 
              Claimant,                               File No. 888117
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         WELLS DAIRY, INC.,                           D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JUN 20 1990
 
         ATLANTIC MUTUAL INSURANCE
 
         COMPANY,                              IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,   IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              May 30, 1990, was the time set for hearing on claimant's 
 
         petition filed herein.  However, on May 29, 1990, sanctions were 
 
         imposed by another deputy commissioner which closed the record to 
 
         further evidence or activity by claimant.  Defendants have 
 
         submitted a list of exhibits and exhibits.  Defendants wish to 
 
         place such evidence into the record and they request a negative 
 
         finding against the claimant.
 
         
 
              As the record was closed to claimant, claimant was notable 
 
         to submit evidence in support of her claim.  Claimant's claim is 
 
         therefore dismissed as no evidence could be offered in her 
 
         case-in-chief.  As the case was dismissed before defendants case 
 
         could be opened, no evidence will be received from the 
 
         defendants.  The request for a negative finding against claimant 
 
         is unnecessary and will not be done.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Claimant offered no evidence.  No findings could be made.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant failed to show by a preponderance of the evidence 
 
         an injury which arose out of and in the course of his employment.
 
         
 
                                      ORDER
 
         
 
              1.  Claimant's petition is dismissed with prejudice.
 
         
 
              2.  Claimant is assessed the costs of this action as set 
 
         forth in Division of Industrial Services Rule 343-4.33.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              Signed and filed this 29th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Alice S. Horneber
 
         Attorney at Law
 
         Suite 400 First Nat'l Bank Bldg
 
         P 0 Box 1768
 
         Sioux City, IA  51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St, Suite 200
 
         P 0 Box 3086
 
         Sioux City, IA  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-2902
 
                                            Filed June 20, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GLENDA J. SCHOENHERR,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 888117
 
         WELLS DAIRY, INC.,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         ATLANTIC MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-2902 - Nonprecedential
 
         
 
             Claimant failed to show compensable injury due to sanctions 
 
         imposed.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MARVIN TIMMERMAN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                     File No. 888128
 
            WILSON FOODS CORPORATION,     
 
                                                      A P P E A L
 
                 Employer, 
 
                 Self-Insured,  
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            SECOND INJURY FUND 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.  The decision of the deputy 
 
            filed August 26, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Claimant clearly suffered a prior injury to his lower 
 
            extremity in the form of an injury during his service in 
 
            Vietnam.  Claimant testified that as a result of this 
 
            injury, his injured leg is shorter than the other, requiring 
 
            him to wear a special shoe and partial leg brace.  Claimant 
 
            contends this constitutes a prior loss for purposes of 
 
            qualifying for second injury fund benefits.  
 
            However, the record establishes that claimant has no work 
 
            restrictions connected with his leg; claimant has not missed 
 
            work because of his leg injury; claimant is and has been for 
 
            many years able to perform all the duties of his job in 
 
            spite of the leg injury.  Claimant does not have to actually 
 
            miss work because of his leg injury in order to establish an 
 
            impairment of his leg.  However, claimant failed to produce 
 
            a medical rating of impairment of his leg in order to 
 
            establish a prior loss.  A military disability rating 
 
            provided in 1973 does not establish a present loss of use of 
 
            the leg.  Claimant has not offered a more recent rating of 
 
            impairment for his leg, has been able to work without 
 
            restriction, and claimant's testimony indicates he does not 
 
            currently suffer a loss of use of his leg. Claimant bears 
 
            the burden of proof.  Claimant has failed to establish that 
 
            he currently suffers a prior loss of use of his leg for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            purposes of Iowa Code section 85.64.  
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            P.O. Box 188
 
            Storm Lake, Iowa 50588
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            P.O. Box 535
 
            Cherokee, Iowa 51012
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
                                            9999
 
                                            Filed September 29, 1992
 
                                            Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MARVIN TIMMERMAN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                      File No. 888128
 
            WILSON FOODS CORPORATION,     
 
                                                       A P P E A L
 
                 Employer, 
 
                 Self-Insured,  
 
                                                    D E C I S I O N
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed August 26, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SYLVIA MARIE BORREGO,         :
 
            Surviving Child of DANIEL     :
 
            BORREGO, JR.,                 :
 
                                          :
 
            and                           :
 
                                          :
 
            KIMBERLY S. ANDRIES, as Mother:
 
            and Next Friend of SHAWNA LISA:
 
            ANDRIES and GREGORY DANIEL    :
 
            ANDRIES,                      :
 
                                          :
 
                 Claimants,               :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888132
 
            HAWKEYE PAVING CORPORATION,   :
 
                                          :  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., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 In this contested case proceeding, three surviving 
 
            children (claimants) of Daniel Borrego, Jr., seek death 
 
            benefits from his employer, Hawkeye Paving Corporation, and 
 
            its insurance carrier, Fireman's Fund Insurance Company.
 
            
 
                 A hearing was accordingly held in Des Moines, Iowa, on 
 
            July 20, 1993.  The record consists of defendants' exhibit 
 
            1, claimants' exhibits 1 and 2 and official notice taken at 
 
            hearing of the entire litigated file, except for the 
 
            prehearing conference notes prepared on May 4, 1992.
 
            
 
                                      ISSUES
 
            
 
                 The parties entered into the following stipulations:
 
            
 
                 .  Daniel Borrego's death on June 9, 1988, arose out of 
 
            and in the course of his employment with Hawkeye Paving;
 
            
 
                 .  The correct rate of compensation is $264.69 per 
 
            week;
 
            
 
                 .  Medical benefits are not at issue;
 
            
 
                 .  Sylvia Marie Borrego, Shawna Lisa Andries and 
 
            Gregory Daniel Andries are surviving children of Daniel 
 
            Borrego, Jr; and
 
            
 

 
            
 
            Page   2
 
            
 
            
 
                 .  A fair and equitable apportionment of death benefits 
 
            would be one-third to each surviving child as long as each 
 
            is entitled to receive benefits; thereafter, remaining 
 
            benefits should be apportioned equally among all such 
 
            children who may remain entitled.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 .  Whether and to what extent defendants are entitled 
 
            to "credit" under Iowa Code section 85.22 with respect to a 
 
            third party settlement; and
 
            
 
                 .  Whether the industrial commissioner has subject 
 
            matter jurisdiction to determine the nature and extent of 
 
            that "credit."
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Daniel Borrego was employed as a highway construction 
 
            laborer on June 9, 1988, when he was struck and killed by a 
 
            passing motorist, one Arthur Olson.  
 
            
 
                 Mr. Borrego was survived by three children born of two 
 
            different mothers.  An estate was opened on behalf of Sylvia 
 
            Marie Borrego, born September 24, 1976, by Attorney Kent 
 
            Hutcheson, whose license has since been suspended for 
 
            violation of temporary restraining orders and false 
 
            testimony under oath, Committee on Professional Ethics and 
 
            Conduct v. Hutcheson, 471 N.W.2d 788 (Iowa 1991).  On behalf 
 
            of the estate, Hutcheson prosecuted a lawsuit against Arthur 
 
            Olson and, on June 17, 1988, so notified Hawkeye Paving 
 
            Company.
 
            
 
                 The lawsuit was apparently settled at policy limits in 
 
            the gross sum of $100,000.  On October 3, 1988, the Des 
 
            Moines County District Court, sitting in probate, approved 
 
            certain death expenses to be paid from those proceeds, along 
 
            with attorney fees to Hutcheson totalling $33,330.  The 
 
            balance was allocated to the conservatorship of Sylvia 
 
            Borrego.  
 
            
 
                 The industrial commissioner was not asked to approve 
 
            the settlement, nor was a written memorandum of that 
 
            settlement filed by the employer or insurance carrier in the 
 
            office of the industrial commissioner as required by Iowa 
 
            Code section 85.22(4).  
 
            
 
                 The estate also received $25,000 in uninsured or 
 
            under-insured motorist coverage held by Mr. Borrego.  
 
            Defendants make no claim that they are entitled to "credit" 
 
            or indemnity on account of this payment.
 
            
 
                 Apparently in March 1989, the probate court recognized 
 
            the existence of two additional children:  Shawna Lisa 
 
            Andries (born January 28, 1982) and Gregory Daniel Andries 
 
            (born June 28, 1984).  On February 21, 1991, the Des Moines 
 
            County District Probate Court entered an order sharply 
 
            critical of Mr. Hutcheson's doings, which required him 
 

 
            
 
            Page   3
 
            
 
            
 
            either to make an appropriate application for attorney's 
 
            fees or to reimburse the estate in the sum of $41,700 for 
 
            fees and expenses.  Due to procedural defects, this judgment 
 
            was later vacated by the supreme court and the matter 
 
            remanded (on September 23, 1992) to the Des Moines County 
 
            District Court for further proceedings, In re Estate of 
 
            Borrego 490 N.W.2d 833 (Iowa 1992).  The record does not 
 
            show any further probate proceedings as of the time this 
 
            case was tried.  However, Hutcheson's malpractice carrier 
 
            has reimbursed the Borrego estate for all fees and expenses 
 
            he received.  Committee on Professional Ethics and Conduct 
 
            v. Hutcheson, 504 N.W.2d 898 (Iowa 1993).  In this case, 
 
            Hutcheson was again suspended from the practice of law due 
 
            to his handling of the Borrego estate.
 
            
 
                 Relying on their "credit" resulting from the third 
 
            party settlement, defendants have paid no death benefits 
 
            whatsoever.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 Claimants take the position that the industrial 
 
            commissioner lacks subject matter jurisdiction to determine 
 
            the existence of or extent of defendants' section 85.22(1) 
 
            lien or right to "credit."  They rely on the recent case of 
 
            Fisher v. Keller Industries, Inc., 485 N.W.2d 626 (Iowa 
 
            1992), a declaratory judgment action originally brought in 
 
            the Clay County District Court to establish the extent of an 
 
            85.22(1) lien against a third party judgment.  In Fisher, 
 
            the defendant insurance carrier contended that the district 
 
            court lacked subject matter jurisdiction and that exclusive 
 
            jurisdiction rested with the commissioner.  The court 
 
            summarily dismissed this contention, noting that disputes 
 
            over the amount or validity of the right to 85.22 
 
            indemnification have consistently been raised in district 
 
            court.  Several citations served to illustrate the point.
 
            
 
                 Clearly then, the district court has original 
 
            jurisdiction to determine a claimed 85.22(1) lien.  However, 
 
            the court did not address the reverse issue:  Does the 
 
            industrial commissioner share concurrent jurisdiction?
 
            
 
                 This appears to be an issue of first impression.  The 
 
            commissioner has, as a matter of routine, accepted 
 
            jurisdiction to determine 85.22 credits in the past.  See, 
 
            e.g. Higgins v. Arthur R. Peterson, II Iowa Industrial 
 
            Commissioner Reports 199 (App. Dec. 1982).  However, it does 
 
            not appear that a challenge to subject matter jurisdiction 
 
            has previously been raised and litigated.
 
            
 
                 One starts with the recognition that examples of such 
 
            concurrent jurisdiction do not spring readily to mind.  
 
            Where original jurisdiction of a dispute is vested in the 
 
            district court, this writer knows of no example in Iowa law 
 
            of any lesser or quasi-judicial body holding concurrent 
 
            jurisdiction over the same dispute.  The Administrative 
 
            Procedure Act, chapter 17A, contemplates judicial review of 
 
            agency action, but does not directly address possible 
 
            instances of concurrent jurisdiction.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
                 Of course, as the statute is written, the commissioner 
 
            is unable to exercise wholly concurrent jurisdiction.  Under 
 
            section 85.22(1), an employee or carrier shall be 
 
            indemnified to the extent of compensation payments made 
 
            "except for such attorney fees as may be allowed, by the 
 
            district court," and sets up a lien on the claim for 
 
            recovery.  Note that exclusive jurisdiction to determine the 
 
            reasonableness of attorney fees is statutorily granted to 
 
            the district court, not the commissioner.  Therefore, in an 
 
            overwhelming majority of such third party claims, the 
 
            commissioner lacks the ability to make a determination on an 
 
            essential element going to the extent of any lien.  Attorney 
 
            fees in such cases commonly reach one-third of the net 
 
            recovery, sometimes more in complex cases.
 
            
 
                 Other provisions of section 85.22 convince this writer 
 
            that the lien process was intended to rest in the sole 
 
            jurisdiction of the district court.  The employer perfects 
 
            the lien by, within 30 days after receiving notice of suit, 
 
            filing notice in the office of the clerk of the court where 
 
            the action is brought.  That notice itself is to be given by 
 
            claimant to the employer not less than ten days before the 
 
            trial of the case, thus pegging the notice requirement to a 
 
            district court event, not any action on the part of the 
 
            industrial commissioner.  Under 85.22(4), a written 
 
            memorandum of any settlement, "if made," is to be filed with 
 
            the commissioner.  As written, this contemplates notice of 
 
            an action already taken, not one to be taken by the 
 
            commissioner.
 
            
 
                 For all these reasons, it must be concluded that the 
 
            legislature intended to vest exclusive jurisdiction to 
 
            determine 85.22(1) liens in the district court.  
 
            
 
                 In this case however, it seems appropriate to briefly 
 
            discuss the merits of the claimed credit, so as to possibly 
 
            avoid the necessity of remand should the commissioner adopt 
 
            a more inclusionary view of this agency's jurisdiction.  
 
            Section 85.22(1) provides:
 
            
 
                      If compensation is paid the employee or 
 
                 dependent or the trustee of such dependent under 
 
                 this chapter, the employer by whom the same was 
 
                 paid, or the employer's insurer which paid it, 
 
                 shall be indemnified out of the recovery of 
 
                 damages to the extent of the payment so made, with 
 
                 legal interest, except for such attorney fees as 
 
                 may be allowed, by the district court, to the 
 
                 injured employee's attorney or the attorney of the 
 
                 employee's personal representative, and shall have 
 
                 a lien on the claim for such recovery and the 
 
                 judgment thereon for the compensation for which 
 
                 the employer or insurer is liable.  In order to 
 
                 continue and preserve the lien, the employer or 
 
                 insurer shall, within thirty days after receiving 
 
                 notice of such suit from the employee, file, in 
 
                 the office of the clerk of the court where the 
 
                 action is brought, notice of the lien.  (Emphasis 
 
                 supplied).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
                 The Iowa court has adopted a literal reading of this 
 
            language.  Fisher, 485 N.W.2d 626.  There is no credit for 
 
            future payments of compensation benefits defendants intend 
 
            to make.  The credit is limited to compensation already paid 
 
            to the dependents.  In this case, the amount of the credit 
 
            is, accordingly, zero.
 
            
 
                 Defendants, however, assert that Fisher did not address 
 
            "whether parties can by agreement have a credit as part of 
 
            the settlement and consent to settlement of a third party 
 
            claim." (defendants' brief, page 9).  
 
            
 
                 Defendants' reliance upon certain correspondence from 
 
            Attorney Hutcheson is misplaced.  First, there is nothing in 
 
            the record to show that Hutcheson at any time represented 
 
            claimants Shawna Andries and Gregory Andries.  He could 
 
            hardly settle or waive any right to benefits held by those 
 
            dependents.  Even if he could make a settlement, it would be 
 
            valid only if signed by all parties and approved by the 
 
            industrial commissioner under section 86.13.  The file does 
 
            not disclose the approval of any settlement by this office.  
 
            Likewise any claim of waiver is barred under Iowa Code 
 
            section 85.55, which provides:
 
            
 
                 No employee or dependent to whom this chapter 
 
                 applies, shall have power to waive any of the 
 
                 provisions of this chapter in regard to the amount 
 
                 of compensation which may be payable to such 
 
                 employee or dependent hereunder.  
 
            
 
                 Iowa law does not recognize any equitable right of 
 
            indemnification independent of section 85.22, Daniels v. 
 
            Hi-way Truck Equipment, Inc., 505 N.W.2d 485 (IOwa 1993).  
 
            Accordingly, defendants' claim of credit is without merit.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Defendants shall pay death benefits at the stipulated 
 
            rate of two hundred sixty-four and 69/100 dollars ($264.69) 
 
            commencing September 9, 1988, equally (one-third each) to 
 
            Sylvia Marie Borrego, Shawna Lisa Andries and Gregory Daniel 
 
            Andries so long as each is entitled to receive benefits 
 
            under the provisions of Iowa Code section 85.31; benefits 
 
            shall continue to be apportioned equally among all children 
 
            who remain entitled to benefits until such time as no such 
 
            entitlement remains under the provisions of section 85.31.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest under Iowa Code section 
 
            85.30.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY   
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Gordon Liles
 
            Attorney at Law
 
            710 Ave F
 
            Ft. Madison,  Iowa  52627
 
            
 
            Ms. Merry C. Ford
 
            Attorney at Law
 
            STE 205 Hoth Bldg
 
            PO Box 1111
 
            Burlington, Iowa  52601
 
            
 
            Mr. Steven E. Ort
 
            Attorney at Law
 
            121 W Main St
 
            New London, Iowa  52645
 
            
 
            Ms. Deborah Dubik
 
            Ms. Vicki Seeck
 
            Mr. Greg Egbers
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport, Iowa  52801-1596
 
            
 
 
         
 
         
 
         
 
         
 
                                    1704 2301 2906 3301 1301 3900
 
                                    Filed November 17, 1993
 
                                    David R. Rasey
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         SYLVIA MARIE BORREGO,    
 
         Surviving Child of DANIEL     
 
         BORREGO, JR.,  
 
                   
 
         and       
 
                   
 
         KIMBERLY S. ANDRIES, as Mother
 
         and Next Friend of SHAWNA LISA
 
         ANDRIES and GREGORY DANIEL    
 
         ANDRIES,  
 
                   
 
              Claimants,     
 
                   
 
         vs.       
 
                                                    File No. 888132
 
         HAWKEYE PAVING CORPORATION,   
 
                                                 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., 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         1704 2301
 
         Under Fisher v. Keller Industries, 485 N.W.2d 626 (1992), 
 
         industrial commissioner was held to lack subject matter 
 
         jurisdiction to determine nature and extent of 85.22 lien against 
 
         third party recovery.  
 
         
 
         2906
 
         Where commissioner was held to lack subject matter jurisdiction 
 
         in a case of first impression, a provisional ruling on the merits 
 
         was also suggested so as to avoid possible remand.
 
         
 
         3301 1301
 
         Claimed agreement or settlement to forego weekly death benefits 
 
         was not valid against dependents where no such agreement had been 
 
         approved under section 86.13.
 
         
 
         3900
 
         Under section 85.55, dependents could not validly waive right to 
 
         death benefits.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JANET E. MEYERS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888380
 
            UNITED PARCEL SERVICE,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Janet E. 
 
            Meyers, claimant, against United Parcel Service, employer, 
 
            and Liberty Mutual Insurance Company, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act.  Claimant alleges that she sustained an 
 
            occupational disease and physical and psychological problems 
 
            as a result of chronic chemical poisoning at her place of 
 
            employment.
 
            
 
                 This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on July 28, 1992, in 
 
            Davenport, Iowa.  The claimant was present and testified.  
 
            Also present and testifying were Robert Black, Lisa Hopper, 
 
            Lee Moore, Roger Wuestenberg, and Mary Beth Andrews.  
 
            Documentary evidence identified in the record consists of 
 
            joint exhibits 1 through 24 and claimant's exhibits A and B.  
 
            
 
                                      ISSUES
 
            
 
                 The parties have presented the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant suffers from chronic poisoning due 
 
            to overexposure, for an extended period of time, to toxic 
 
            chemicals in the work place, and as a result, has suffered 
 
            psychological and physical disabilities;
 
            
 
                 2.  Whether claimant's occupational disease arose out 
 
            of and in the course of employment with employer;
 
            
 
                 3.  Whether the alleged disease is a cause of temporary 
 
            and permanent disability;
 
            
 
                 4.  The extent of entitlement to weekly compensation 
 
            for temporary and permanent disability, if defendants are 
 
            liable for the injury;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 5.  The commencement date for permanent partial 
 
            disability, in the event such benefits are awarded;
 
            
 
                 6.  Whether claimant is entitled to medical expenses 
 
            under Iowa Code section 85.27; and
 
            
 
                 7.  Whether fees charged for medical services by 
 
            Bertram Carnow, M.D., are reasonable.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on June 13, 1943, and graduated from 
 
            high school in 1960.  She commenced working for employer in 
 
            1976.  She performed odd jobs until 1979 when she started 
 
            working as a washer and fueler.  Claimant terminated her 
 
            employment with employer on May 1, 1992.  On May 15, 1992, 
 
            she was placed on a company disability plan and receives 
 
            benefits in the amount of $110 per week.  Claimant alleges 
 
            that she suffers physical and emotional problems brought on 
 
            by her employment environment and exposure to chemicals.  
 
            She alleges forgetfulness, irritability, sleep disturbance, 
 
            mood swings, skin blistering and oozing, second degree burns 
 
            on her face, visual deficits, muscle spasms, black liquid 
 
            discharge from her breasts, green perspiration, swollen 
 
            lymph glands, diarrhea, vomiting, loss of memory and 
 
            dexterity, speech problems, loss of equilibrium, and 
 
            depression. 
 
            
 
                 Claimant testified that her physical problems surfaced 
 
            the beginning of 1986, but it wasn't until April 1987 that 
 
            she realized they were work related.  In her deposition 
 
            dated January 30, 1992, claimant testified that when she 
 
            learned that chemicals, Zep T N T and G P Forward, were in 
 
            the detergents used to wash the trucks, she filed a 
 
            complaint with OSHA in 1987.  She stated that no safety gear 
 
            was provided and the tunnel was poorly ventilated.  In 
 
            addition, a solvent called Zepteen was used to clean off the 
 
            frames of the tractors.  Other chemical additives were used 
 
            to clean the interior of the cab and she was exposed to 
 
            anti-freeze, deicers, transmission fluid, clutch oil, glass 
 
            cleaners, and grease.  Occasionally, when a tractor was 
 
            undercoated, the cleaning process involved using sand 
 
            silicone.  Claimant testified that even though these 
 
            chemicals were applied with a brush, they would drip on her 
 
            skin and clothing and the mist would permeate her lungs.  
 
            Claimant testified that the company was cited by OSHA for 
 
            various safety violations and the company responded by 
 
            eliminating Zep T N T and G P Forward as cleansing agents 
 
            and substituted J-Wax. 
 
            
 
                 The documentary evidence in the record corroborates 
 
            claimant's testimony that in July 1987, an OSHA citation was 
 
            issued to employer for various infractions regarding the use 
 
            of potentially hazardous chemicals and employer's failure to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            provide information and training to employees using these 
 
            chemicals.  Furthermore, employer was cited for failure to 
 
            maintain copies of the required material safety data sheets 
 
            for each hazardous chemical in the work place and to insure 
 
            they were readily accessible to employees.  The record also 
 
            indicates that employer complied with complaint resolution 
 
            on January 7, 1988, and took corrective measures requested 
 
            by OSHA (exhibit 15a-d).  
 
            
 
                 As is apparent from the voluminous medical evidence in 
 
            this case, claimant has had extensive medical evaluations 
 
            for a myriad of physical and emotional symptoms which she 
 
            contends are the result of chronic ongoing chemical 
 
            poisoning during the course of employment with employer.  
 
            
 
                 On January 13, 1987, claimant presented to John F. 
 
            Collins, M.D., her treating physician, with complaints of a 
 
            productive cough with fatigue, diarrhea and decreased 
 
            appetite.  She was treated with Lomotil and amoxicillin (ex. 
 
            6, p. 6).  A follow-up examination by Dr. Collins on April 
 
            13, 1987, found claimant complaining of easy fatigability 
 
            and breast discharge for one month.  A blood chemistry 
 
            profile was normal except for a slightly increased chloride.  
 
            A complete blood count and urinalysis was normal.  Dr. 
 
            Collins noted a rash on claimant's face and cheeks which was 
 
            reddish and scaly.  The rest of her skin was normal.  He was 
 
            not certain as the etiology of the rash but stated it could 
 
            likely be due to exposure to toxic chemicals.  On April 28, 
 
            1987, claimant reported to Dr. Collins that employer removed 
 
            the chemicals she was using and introduced a safer chemical.  
 
            
 
                 On April 6, 1987, claimant submitted an employee 
 
            accident report, claiming severe fatigue, lightheadedness, 
 
            face dermatitis, gastroenteritis, bronchial pneumonia, loss 
 
            of sleep, decreased appetite, muscle aching, headaches, and 
 
            breast discharge for the past fifteen months.  She 
 
            attributed her symptoms to chemical exposure in the work 
 
            place (ex. 21).
 
            
 
                 On April 21, 1987, claimant was seen by James D. King, 
 
            D.O., for evaluation.  She presented with multiple 
 
            complaints, including black watery discharge from her 
 
            breasts, green perspiration, progressive exhaustion, 
 
            fatigue, diarrhea, vomiting, weakness, recurrent and 
 
            intermittent dermatitis, periods of disorientation, 
 
            shortness of breath and wheezing for the past sixteen 
 
            months.  She related to Dr. King that she had been working 
 
            in the truck wash at United Parcel for the past eight years 
 
            and using the same type of soap (Zep T N T detergent) for 
 
            two years prior to the onset of her symptoms.  On 
 
            examination, no specific lesions or dermatitis was found on 
 
            her face.  A very dark, black-green discharge was seen from 
 
            her breasts. Laboratory tests were performed which showed 
 
            that the breast nipple discharge was essentially normal for 
 
            culture and pap smear of the nipple discharge was negative.  
 
            Bilateral mammograms were consistent with fibrocystic 
 
            disease.  A blood count was normal as were thyroid function 
 
            tests.  Claimant returned for a follow-up visit on May 28, 
 
            1987, and was feeling much better since the company stopped 
 
            using the Zep T N T.  Dr. King was unable to relate 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's symptoms to the particular soap she was using at 
 
            work because none of the environmental protection agency 
 
            records detailed the type of symptom complex she described 
 
            (ex. 11a, pp. 1-2).
 
            
 
                 On August 13, 1987, at claimant's request, Robert B. 
 
            Black, an environmental chemist, reviewed the cleaning 
 
            agents (Zep and Johnson Wax products) used by UPS personnel 
 
            and felt that their long-term use could have a detrimental 
 
            effect on the skin and internal irritation to the mouth, 
 
            throat and lungs.  He noted that the Zep product 0376 
 
            contained EDTA (ex. 3).  
 
            
 
                 Claimant was sent by defendant insurance carrier to 
 
            Chicago Occupational Medicine Services where she was 
 
            evaluated by E. Jay Van Cura, M.D., Director of Medical 
 
            Services, on November 18, 1988.  Pursuant to this 
 
            evaluation, Dr. Van Cura reviewed the records of Dr. 
 
            Collins, Dr. King, Mr. Black, letters written by claimant, 
 
            and the Material Safety Data Sheets (MSDS) for G P Forward 
 
            Cleaner, J-Wax Believe, Zepteen and Zep T N T.  
 
            
 
                 Dr. Van Cura conducted a physical examination which was 
 
            essentially within normal limits except for dry facial skin 
 
            and patches of mild redness and scaling, especially over the 
 
            neck.  There was a mild greenish pigment over the bilateral 
 
            axillary areas and a faint greenish color from her sweat.  
 
            There was also a small amount of greenish fluid emanating 
 
            from her breasts.  According to Dr. Van Cura, she presented 
 
            herself in a very intelligent, organized manner and her 
 
            emotional responses were normal.  
 
            
 
                 Dr. Van Cura concluded that while claimant has normally 
 
            dry skin, the work place exposure to water and soaps 
 
            probably contributes to her dry skin.  However, he felt this 
 
            was a mild condition which can be treated with moisturizing 
 
            agents and reduced direct contact with solvents.  As to the 
 
            greenish discharge from claimant's breasts and axillary 
 
            sweat glands, Dr. Van Cura knew of no occupational cause for 
 
            this phenomenon.  He felt she should be evaluated for a 
 
            possible metabolic or hereditary abnormality.  As to her 
 
            orthopedic complaints (soreness in her fingers and elbows), 
 
            Dr. Van Cura felt this was a manifestation of early 
 
            arthritic problems.  He could not explain her complaints of 
 
            burning spots throughout her body.  It was his opinion that 
 
            claimant was capable of performing normal work activity 
 
            without restrictions (ex. 5a, pp. 1-8).
 
            
 
                 On September 6, 1989, claimant was referred by Andrew 
 
            A. Andresen, M.D., to St. Luke's Hospital, Outpatient 
 
            Facility, for evaluation and possible treatment of right 
 
            elbow joint pain.  During the course of treatment, it was 
 
            recommended that claimant become involved in the Back In 
 
            Balance program for work hardening.  This was sanctioned by 
 
            Dr. Andresen (ex. 7, pp. 5-7).
 
            
 
                 Initial testing at the Back In Balance program occurred 
 
            from October 16 through October 19, 1989.  This included a 
 
            psychological evaluation by W. David McEchron, Ph.D., 
 
            licensed psychologist.  On the Minnesota Multiphasic 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Personality Inventory (MMPI) the results were suggestive of 
 
            a histrionic or passive-aggressive personality disorder, 
 
            with a strong possibility of a conversion disorder or 
 
            somatization disorder.  The profile suggested an individual 
 
            who exaggerates physical problems due to an underlying 
 
            emotional disorder (ex. 9, p. 29; ex. 4a, p. 1).
 
            
 
                 Claimant participated in 11 sessions of work hardening 
 
            at the Back in Balance program from October 30, 1989 through 
 
            November 17, 1989, when she was released to return to an 
 
            eight-hour work day only restricted from doing heavy lifting 
 
            (ex. 9, p. 34).
 
            
 
                 Dr. Collins referred claimant to the University of 
 
            Iowa, Occupational Medicine Clinic, for evaluation on 
 
            November 9, 1989.  Claimant presented with a rather "lengthy 
 
            list of somatic complaints including greenish black 
 
            discharge from breasts, greenish perspiration and shortness 
 
            of breath."  As reported by James Merchant, M.D.:
 
            
 
                 ...HEENT exam was unremarkable for mucosal 
 
                 erythema or lymphadenopathy or skin changes.  
 
                 Extremities were within normal limits without 
 
                 cyanosis or clubbing.  Lungs were clear to 
 
                 auscultation in all fields.  Heart revealed a 
 
                 regular rate and rhythm without murmurs or 
 
                 gallops.  Abdomen was slightly tender to palpation 
 
                 in the right upper quadrant without 
 
                 hepatosplenomegaly.
 
            
 
                    Chest x-ray revealed no active disease.  
 
                 Pulmonary function tests were excellent for her 
 
                 height and weight.
 
            
 
            (exhibit 1, pages 6)
 
            
 
                 Dr. Merchant concluded that there was no biological 
 
            basis for claimant's complaints of breast discharge, 
 
            perspiration or other somatic complaints (ex. 1, p. 6).
 
            
 
                 Claimant's attorney then referred her to Bertram 
 
            Carnow, M.D., Executive Vice President and Senior Scientist 
 
            with an occupational and environmental health consulting 
 
            firm in Chicago, Illinois for evaluation on March 26, 1990.  
 
            After reviewing the claimant's medical history and noting 
 
            her complaints, Dr. Carnow conducted a physical examination.  
 
            He observed a jet black discharge from claimant's breast 
 
            nipple and a greenish tint, but no green discharge, in the 
 
            axilla areas.  A chest x-ray, electrocardiogram, pulmonary 
 
            function studies, EMG and nerve conduction studies were 
 
            essentially normal.  Robert S. Wilson, Ph.D., administered 
 
            claimant a battery of neuropsychological tests and concluded 
 
            that claimant manifested "Clear deficits in attention and 
 
            fine motor speed and coordination; questionable deficit in 
 
            constructional praxis; and clinical significant depression."  
 
            According to Dr. Carnow, immune system testing carried out 
 
            by Dr. Ronald Kerman at the University of Texas revealed 
 
            multiple functional abnormalities.  
 
            
 
                 In summary, Dr. Carnow concluded that claimant was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            suffering from chronic chemical poisoning as a result of 
 
            exposure to a wide range of strong cleansing agents, 
 
            chelating agents, solvents, diesel fuel fumes, and other 
 
            chemicals while working in employer's wash tunnel.  He 
 
            recommended that claimant immediately remove herself from 
 
            the harmful work environment (deposition ex. 2, pp. 12-69).
 
            
 
                 On July 10, 1992, at the request of insurance carrier, 
 
            Dr. Van Cura reviewed Dr. Carnow's medical evaluation.  In a 
 
            letter dated July 27, 1990, Dr. Van Cura questioned the 
 
            validity of Dr. Carnow's findings and conclusions.  He noted 
 
            that nerve conduction velocity testing, which is an 
 
            objective test of the peripheral nerves was entirely within 
 
            normal limits.  Immune-electrophoresis performed by Metpath, 
 
            a national laboratory, was entirely within normal limits.  
 
            Liver function tests performed by Metpath were also within 
 
            normal limits.  He stated that claimant's most extreme 
 
            abnormality, (black icky discharge from the breast and 
 
            greenish discharge from the axillary sweat glands) has not 
 
            been explained by Dr. Carnow or anyone else.  He thought 
 
            that the possibility of a work place exposure to chemicals 
 
            causing this problem was extremely remote and recommended 
 
            further evaluation for metabolic or hereditary causes (ex. 
 
            5b, pp. 1-3).
 
            
 
                 Claimant was then referred by defendant insurance 
 
            carrier to Paul From, M.D., for evaluation on November 12, 
 
            1990.  Claimant presented with numerous physical and mental 
 
            complaints but indicated that her condition was beginning to 
 
            improve.  Dr. From reviewed extensive medical material in 
 
            conjunction with his evaluation, performed laboratory 
 
            testing and conducted a physical examination.  He noted that 
 
            all objective studies were normal and he found no connection 
 
            between claimant's work and her symptoms except for skin 
 
            dryness which may result from her frequent contact with 
 
            water (ex. 13).
 
            
 
                 On April 18, 1991, claimant presented to Dr. Collins 
 
            with complaints of severe chest pain (ex. 6, p. 27).  She 
 
            was referred to the Work Well Occupational Medicine Center 
 
            in Davenport, Iowa, on April 19, 1991, for evaluation.  
 
            Claimant brought with her Dr. Carnow's report and a note 
 
            from Dr. Collins indicating that "Janet is ill with chest 
 
            pains due to stress of her work, she will be unable to 
 
            return to work for the next two weeks."  Subsequently, a 
 
            stress test was performed at North Medical Center under the 
 
            direction of Dr. Bontu.  The tests showed no evidence of 
 
            ischemic changes.  Therefore, a psychiatric evaluation with 
 
            Patrick Campbell, M.D., psychiatrist was arranged (ex. 12a, 
 
            pp. 1-5).  
 
            
 
                 Dr. Campbell saw claimant for psychiatric evlauation on 
 
            April 29, 1991.  In a report dated February 21, 1992, Dr. 
 
            Campbell noted that initially claimant appeared to be 
 
            suffering from an acute anxiety disorder, depression, a 
 
            somatiform disorder, and a histrionic personality disorder.  
 
            However, she showed good response after a few psychiatric 
 
            sessions.  She was last seen on June 28, 1991 (ex. 14a, p. 
 
            1).  
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Progress notes from E.A. Motto, M.D., from Work Well 
 
            Occupational Center, dated May 2, 1991, indicate that Dr. 
 
            Campbell was reticent to make a definite diagnosis regarding 
 
            claimant's psychiatric state, but he felt that she could 
 
            return to work without restrictions.  He noted that Dr. 
 
            Campbell indicated to him that her acute episode of chest 
 
            pain was probably a panic reaction and that much of her 
 
            problem may be related to a somatization disorder (ex. 12a, 
 
            pp. 5-6).
 
            
 
                 On February 5, 1992, defendants' attorney sent to Dr. 
 
            From reports from Robert Black noting the possible hazards 
 
            associated with the use of Zep and Johnson Wax products.  
 
            Dr. From commented that EDTA, a chelating agent, is used in 
 
            medicine for removing arterial blockage.  He noted however, 
 
            "There was no history given by Ms. Meyers as to any actual 
 
            irritations within her throat and lung area and no history 
 
            of any significant skin irritation or burns during her work 
 
            at United Parcel Service."  He reported that his examination 
 
            of claimant did not indicate any irritation about the mouth, 
 
            throat, lungs, or skin and her neurological examination was 
 
            normal (deposition ex. 13, p. 41).
 
            
 
                 On March 13, 1992, defendants' attorney sent to Dr. 
 
            From four material safety data sheets for (1) Zepteen, 0432; 
 
            (2) Zep T N T, 0376; (3) G P Forward Cleaner; and (4) J-Wax 
 
            Believe.  These sheets were examined by Dr. From.  He noted 
 
            that the products contain certain ingredients which can 
 
            cause irritation to the eyes and upper gastrointestinal 
 
            tract and occasionally to the respiratory tract.  However, 
 
            these symptoms would result from acute overexposure.  He 
 
            concluded, "I could find nothing in these MSDS sheets which 
 
            would make me change my opinion outlined in my letter to 
 
            Liberty Mutual of November 21, 1990."  (deposition ex. 13, 
 
            p. 53).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant alleges she has suffered from chronic exposure 
 
            to a wide range of toxic chemicals while in the employ of 
 
            employer which has resulted in systemic organ abnormalities 
 
            and psychological problems.
 
            
 
                 The first issue to be determined is whether claimant 
 
            suffers from an occupational disease under Iowa Code section 
 
            85A.
 
            
 
                 Iowa Code section 85A.14 provides as follows:
 
            
 
                    No compensation shall be payable under this 
 
                 chapter for any condition of physical or mental 
 
                 ill-being, disability, disablement, or death for 
 
                 which compensation is recoverable on account of 
 
                 injury under the workers' compensation law.
 
            
 
                 The existence of section 85A.14 indicates a legislative 
 
            intent to preclude recovery under both chapter 85 and 
 
            chapter 85A for the same injury or condition.  Thus, 
 
            claimant cannot be compensated for an injury under chapter 
 
            85 and an occupational disease under chapter 85A for the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            same work-related condition. 
 
            
 
                 Iowa's occupational disease law was enacted in 1947 and 
 
            was designed to compensate "victims of disease resulting 
 
            solely from the nature of the employment as opposed to 
 
            traumatic injury...." [34 Iowa Law Review, 510, 512 (1949)].  
 
            
 
                 One commentator has opined that, "Chapter 85A was 
 
            remedial legislation intended to ameliorate the proof 
 
            requirements normally associated with establishing a 
 
            traumatic injury, and to obviate discrimination against 
 
            disabled workers whose productivity has been terminated by 
 
            disease.  Shepler, "Occupational Disease Claims," 30 Drake 
 
            Law Review 841, 841-2 1980-81. 
 
            
 
                 Iowa Code section 85A.8 was amended in 1973.  Prior to 
 
            1973 chapter 85A set forth a list of specific conditions 
 
            that would constitute occupational diseases.  The list of 
 
            diseases compensable under chapter 85A was contained in 
 
            section 85A.9.  Of the 17 enumerated conditions, eight were 
 
            types of poisonings; two involved skin diseases from 
 
            reactions to chemicals of substances; two involved diseases 
 
            resulting from the handling of animals; two involved 
 
            exposure to radiant energy; and one involved exposure to a 
 
            chemical dust.  The other condition enumerated was bursitis, 
 
            synovitis or tenosynovitis or any process/occupation 
 
            involving continued or repeated pressure on the parts 
 
            affected. 
 
            
 
                 The 1973 amendment struck the references in section 
 
            85A.8 to a designated list of diseases and repealed section 
 
            85A.9, which set out the list of diseases compensable.  The 
 
            amendment also changed references to silicosis in sections 
 
            85A.10, 85A.12 and 85A.13 to refer to pneumoconiosis, a 
 
            condition defined in section 85A.13 as the characteristic 
 
            fibrotic condition of the lungs caused by the inhalation of 
 
            dust particles.  Commonly, those sections referred only to 
 
            silicosis and the inhalation of silica dust particles. 
 
            
 
                 Chapter 85A defines occupational disease as follows:
 
            
 
                    Occupational diseases shall be only those 
 
                 diseases which arise out of and in the course of 
 
                 the employee's employment. Such diseases shall 
 
                 have a direct causal connection with the 
 
                 employment and must have followed as a natural 
 
                 incident thereto from injurious exposure 
 
                 occasioned by the nature of the employment.  Such 
 
                 disease must be incidental to the character of the 
 
                 business, occupation or process in which the 
 
                 employee was employed and not independent of the 
 
                 employment. Such disease need not have been 
 
                 foreseen or expected but after its contraction it 
 
                 must appear to have had its origin in a risk 
 
                 connected with the employment and to have resulted 
 
                 from that source as an incident and rational 
 
                 consequence.  A disease which follows from a 
 
                 hazard to which an employee has or would have been 
 
                 equally exposed outside of said occupation is not 
 
                 compensable as an occupational disease.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 The definition of occupational disease is set out in 
 
            Iowa Code section 85A.  To prove that claimant is suffering 
 
            from an occupational disease, she must show by a 
 
            preponderance of the evidence that the disease:  (1) Arises 
 
            out of and in the course of the employment; (2) Is causally 
 
            related to exposure to harmful conditions in the field of 
 
            employment; and (3) That harmful conditions must be more 
 
            prevalent in the employment concern than in everyday life or 
 
            in other occupations.
 
            
 
                 If claimant is successful in establishing these 
 
            elements of an occupational disease, then she must also 
 
            prove that she has been disabled by the disease.  Iowa Code 
 
            section 85A.4, provides that claimant must be actually 
 
            incapacitated from performing her work or earning equal 
 
            wages in other suitable employment as a result of the 
 
            occupational disease.  Doerfer Div. of CCA v. Nichol, 359 
 
            N.W.2d 428, 433 (Iowa 1984); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181, 192 (Iowa 1980); Frit Ind. v. Langenwalter, 
 
            443 N.W.2d 88, 90 (Iowa Ct. App. 1989).
 
            
 
                 Recently, the industrial commissioner in Noble v. 
 
            Lamoni Products, file numbers 857575 & 851309 (App. Dec. 
 
            1992), defined "disease" which is not defined in chapter 
 
            85A.  The commissioner specifically stated that "disease" 
 
            and "injury" were not interchangeable terms, otherwise, all 
 
            injuries compensable under chapter 85 may also be 
 
            compensable under chapter 85A as well, contrary to section 
 
            85A.14.  The commissioner determined that the legislative 
 
            intent in enacting chapter 85A was to compensate those 
 
            work-related conditions that result from exposure to various 
 
            agents that would invade the body and act adversely on it, 
 
            and which could not be compensated as a traumatic injury 
 
            under chapter 85.  Noble at page 13.  
 
            
 
                 Claimant has the burden of proof.  To prove the 
 
            causation element described in section 85A.8, the Iowa 
 
            Supreme Court in McSpadden, stated that claimant must meet 
 
            two basic requirements.  First, she must show that her 
 
            disease is causally related to the exposure to harmful 
 
            conditions in the field of employment in which she was 
 
            engaged and secondly, that those harmful conditions are more 
 
            prevalent in the employment concerned than in everyday life 
 
            or in other occupations.  
 
            
 
                 Although McSpadden might be read as eliminating the 
 
            arising out of and in the course of requirements, the 
 
            statute clearly retains those elements.  
 
            
 
                 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 
 
            v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
            N.W.2d 732 (1955).  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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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 v. Fischer, Inc., 257 
 
            Iowa 516, 133 N.W.2d 867 (1965).  See also Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that claimant has not met 
 
            her burden of proof.  Claimant has a long and complicated 
 
            medical history.  She has conferred with numerous physicians 
 
            and has participated in extensive evaluations and testing.  
 
            Claimant began working in the wash tunnel in 1978.  She 
 
            testified that she began experiencing a multitude of 
 
            symptoms in 1986 and by 1987 she was convinced that her 
 
            symptoms were the result of toxic exposure to chemicals at 
 
            work.  This impression was reinforced by Dr. Bertram Carnow 
 
            in March 1990 but disputed by Dr. Van Cura, Dr. Merchant and 
 
            Dr. From.  Dr. Carnow is convinced that claimant was exposed 
 
            to a multiplicity of toxic agents and such exposure resulted 
 
            in multiple organ systems abnormalities and psychological 
 
            problems.  The greater weight of the evidence does not 
 
            support his conclusions.  While it is true that claimant has 
 
            a dry skin condition, she does not have acute dermatitis.  
 
            Extensive testing at the University of Iowa Medical Center 
 
            in November 1989 could find no biological basis for any of 
 
            her complaints.  Psychological evaluations indicate that 
 
            claimant is prone to exaggerate her physical symptoms and 
 
            she has been described on more than one occasion as 
 
            suffering from a somatization or conversion disorder as part 
 
            of her overall personality.  Dr. Van Cura and Dr. From 
 
            vigorously dispute any suggestion that claimant suffers from 
 
            chronic chemical poisoning or systemic damage as a result of 
 
            chronic exposure to a wide range of toxic chemicals.  No 
 
            physician has been able to explain the black discharge from 
 
            her breasts or her green colored perspiration.  Causation 
 
            cannot be established by conjecture or possibility.  Burt v. 
 
            John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 
 
            732 (1955).
 
            
 
                 In evidence are the depositions of Dr. Paul From and 
 
            Dr. Bertram Carnow.  Dr. From was asked to review a 
 
            statement made by Dr. Carnow on June 25, 1990, to claimant's 
 
            attorney (deposition ex. 13, p. 18).  The statement reads, 
 
            "As a result of the chronic chemical poisoning, she is 
 
            suffering damage to, and dysfunction of, multiple organ 
 
            systems, particularly of the brain and central nervous 
 
            system but also of the peripheral nervous system, the immune 
 
            system, liver metabolism and perhaps, others."  
 
            
 
                 During the course of his deposition, Dr. From was asked 
 
            the following questions:
 
            
 
                    Q.  Doctor, in the course of your practice, 
 
                 have you diagnosed or have you observed any 
 
                 patients who you believed to be suffering from 
 
                 chronic poisoning from exposure to any of the four 
 
                 compounds that are mentioned in the first 
 
                 paragraph of your March 24, 1992, letter, which is 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Exhibit 12?
 
            
 
                    A.  I have not seen any that I can recall of 
 
                 those particular four products, no, sir.
 
            
 
                    Q.  Was there anything in the information that 
 
                 you obtained from Janet Meyers that -- or that you 
 
                 had an opportunity to review that suggested to you 
 
                 that she may have been overexposed to any toxic 
 
                 chemicals in the course of her work with UPS?
 
            
 
                    A.  From an objective standpoint in going over 
 
                 her history of subjective complaints with what I 
 
                 did, what I observed in the laboratory, from 
 
                 various physicians who had often repeated many of 
 
                 the studies that I already did -- that I had done, 
 
                 I could conclude that there seemed to be nothing 
 
                 about the symptomatology and the exposure to which 
 
                 she complained and what could be objectively 
 
                 found.
 
            
 
            (exhibit 13, pages 38-40)
 
            
 
                 Dr. From testified that when he examined claimant on 
 
            November 12, 1990, claimant did not complain of any 
 
            irritation to her eyes; burning, irritation in swallowing, 
 
            dryness, swelling or any symptoms of upper gastrointestinal 
 
            tract problems; shortness of breath, coughing, wheezing, or 
 
            other respiratory tract symptoms.  Dr. From testified that 
 
            there was no objective evidence to indicate that claimant's 
 
            neurological system was impaired in any way.  Finally, Dr. 
 
            From agreed with Dr. Van Cura that immune-electrophoresis 
 
            performed by Metpath, a national laboratory, was entirely 
 
            within normal limits, indicating that she has no damage or 
 
            dysfunction to her immune system (ex. 13, pp. 65-69).
 
            
 
                 Dr. Carnow, in his deposition dated July 6, 1992, 
 
            stated that claimant's exposure to the chelating agent, to 
 
            sodium hydroxide, to alcohols, and a host of unknown 
 
            chemicals, resulted in liver dysfunction, peripheral 
 
            polyneuropathy, central nervous system damage, memory 
 
            problems, profound fatigue, headaches, organic brain damage 
 
            and depression (ex. 2, pp. 32-34).  However, these findings 
 
            are not supported by the totality of the objective medical 
 
            evidence.
 
            
 
                 Dr. Carnow indicated that claimant's pulmonary function 
 
            tests were normal and her chest x-ray was negative (ex. 2, 
 
            p. 40).  A specimen of the black fluid was tested at Metpath 
 
            for chemical content and the results were negative (ex. 2, 
 
            pp. 62-64).  Finally, Dr. Carnow stated that the following 
 
            laboratory tests were all normal, bilirubin, total protein, 
 
            globulins, immunoglobulins, chem-screen (except for 
 
            depressed albumin), liver enzymes, immunofixation of the 
 
            serum (except for borderline abnormal low total protein), 
 
            and nerve conduction velocity (ex. 2, pp. 75-79).
 
            
 
                 Thus, the undersigned finds that the greater weight of 
 
            the evidence does not support claimant's contentions that 
 
            she is suffering from chronic exposure to a wide range of 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            toxic chemicals which has resulted in multiple organ system 
 
            abnormalities.  Accordingly, she has failed to prove by a 
 
            preponderance of the evidence that she has sustained an 
 
            occupational disease as a result of her employment with 
 
            employer.
 
            
 
                 On February 27, 1992, claimant amended her original 
 
            notice and petition and alleging emotional and/or 
 
            psychological injuries.
 
            
 
                 Claimant bears 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).
 
            
 
                 The standard for determining whether a mental injury 
 
            arose out of and in the course of employment was recently 
 
            discussed in Ohnemus v. John Deere Davenport Works, File No. 
 
            816947 (App. Decn., February 26, 1990) and Kelley v. 
 
            Sheffield Care Center, File No. 872737 (App. Decn., October 
 
            31, 1991) as follows:
 
            
 
                    In order to prevail claimant must prove that he 
 
                 suffered a non-traumatically caused mental injury 
 
                 that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or physical condition caused by mental 
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                       We have recognized that in both civil and 
 
                    criminal actions causation in fact involves 
 
                    whether a particular event in fact caused 
 
                    certain consequences to occur.  Legal causation 
 
                    presents a question of whether the policy of 
 
                    the law will extend responsibility to those 
 
                    consequences which have in fact been produced 
 
                    by that event.  State v. Marti, 290 N.W.2d 570, 
 
                    584-85 (Iowa 1980).  Causation in fact presents 
 
                    an issue of fact while legal causation presents 
 
                    an issue of law.  Id.
 
            
 
                 That language was the basis of the language in 
 
                 Desgranges v. Dept of Human Services, (Appeal 
 
                 Decision, August 19, 1988) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                    ....
 
            
 
                    Not only must claimant prove that his work was 
 
                 the factual cause of his mental injury, claimant 
 
                 must also prove that the legal cause of his injury 
 
                 was his work.  In order to prove this legal 
 
                 causation claimant must prove that his temporary 
 
                 mental condition "resulted from a situation of 
 
                 greater dimensions than the day to day mental 
 
                 stresses and tensions which all employees must 
 
                 experience."  Swiss Colony v. Department of ICAR, 
 
                 240 N.W.2d 128, 130 (Wisc. 1976).
 
            
 
            Kelley v. Sheffield Care Center, File No. 872737 (App. 
 
            Decn., October 31, 1991).
 
            
 
                 Claimant's mental state was referred to by Dr. Van Cura 
 
            on November 18, 1988.  He noted, "The patient appeared to 
 
            have a normal emotional response during my time with her.  
 
            She did not appear abnormally depressed nor excited.  She 
 
            seemed quite intelligent and very organized."  (ex. 5a, p. 
 
            5).  On October 27, 1989, claimant was administered an MMPI 
 
            and sentence completion forms while a patient at the 
 
            Bettendorf Physical Therapy Center.  The MMPI strongly 
 
            suggested the presence of a histrionic or passive-aggressive 
 
            personality disorder with a strong possibility of a 
 
            conversion disorder or somatization disorder present (ex. 9, 
 
            pp. 29-30).  Neuropsychological testing was performed by 
 
            Robert Wilson, Ph.D, on March 26, 1990.  Intelligence 
 
            testing on the Wechsler Adult Intelligence Scale revealed a 
 
            verbal IQ score of 98, a performance IQ score of 110 and a 
 
            full-scale IQ score of 102.  Dr. Wilson, without 
 
            explanation, reported that claimant suffers a diffuse 
 
            encephalopathy or brain damage (deposition ex. 2, p. 56).  
 
            Using this report, Dr. Carnow concluded that claimant has an 
 
            impaired ability to concentrate and clear deficits of 
 
            attention, fine motor speed and coordination (deposition ex. 
 
            2, pp. 21 & 56-57).  This was not evident at the hearing.  
 
            Claimant was able to tolerate two hours of sustained 
 
            questioning and answered all questions in a logical and 
 
            concise manner.
 
            
 
                 On April 18, 1991, when claimant presented to Dr. 
 
            Collins with complaints of chest pain and depression, he 
 
            referred her to Work Well Occupational Center for further 
 
            evaluation.  When a cardiac stress test showed no evidence 
 
            of ischemic changes, claimant was referred to Dr. Campbell 
 
            for psychiatric evaluation.  It was Dr. Campbell's 
 
            impression that claimant's acute episode of chest pain was 
 
            probably a panic reaction and that her problems may be 
 
            related to a somatization disorder.  He was reticent to make 
 
            a definite diagnosis but felt that she could return to work 
 
            without restriction (ex. 12a, p. 5).  
 
            
 
                 The evidence indicates that claimant probably has a 
 
            lifetime personality disorder.  Dr. Collins and Dr. Carnow 
 
            opined that work stressors caused claimant's depression.  In 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            view of claimant's underlying personality disorder, as 
 
            disclosed by MMPI testing, her reported perceptions of 
 
            unfair and discriminatory treatment by employer, this 
 
            opinion may be valid.  However, whether such resulted in an 
 
            acute anxiety disorder, depression, somatiform disorder and 
 
            histrionic personality disorder is questionable.  
 
            Nevertheless, even if claimant's perception of work place 
 
            stressors was an aggravating factor in the progressive 
 
            development of her mental deterioration, this only 
 
            constitutes "causation in fact and does not prove causation 
 
            in law."
 
            
 
                 To meet that test, claimant must show a situation of 
 
            greater dimensions than the day-to-day mental stressors 
 
            intentions which all employees must experience.  All 
 
            employment involves a degree of stress, although the 
 
            particulars vary widely from job to job.  Claimant has not 
 
            shown a situation of greater dimensions than the day-to-day 
 
            mental stressors and tensions which all employees must 
 
            experience.  Claimant testified, without being specific, "It 
 
            got so bad I could not tolerate it any longer."  She 
 
            voluntarily quit her job in May 1992.  Medical evidence on 
 
            this causation issue was not presented.  If, in fact, 
 
            claimant was driven to quit her job due to stress and 
 
            whether that stress caused her mental condition is not 
 
            clearly ascertainable from the medical evidence.  What is 
 
            clear is that claimant suffers from a long-term personality 
 
            disorder with a tendency to exaggerate physical problems.  
 
            These tendencies cannot be attributed to her employment.
 
            
 
                 Accordingly, claimant has not met her burden of proof 
 
            that her work environment was either the factual or legal 
 
            cause of her alleged mental injury.  There are virtually no 
 
            objective findings to substantiate her claim of emotional 
 
            and/or psychological work injuries.  Claimant has not proved 
 
            by a preponderance of the evidence that she suffered a 
 
            nontraumatically caused mental injury that arose out of and 
 
            in the course of her employment with employer.
 
            
 
                 The above determinations are dispositive of the entire 
 
            case and further analysis is unnecessary.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The parties shall pay their own costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Earl A. Payson
 
            Attorney at Law
 
            126 Kirkwood Blvd
 
            Davenport, IA  52803
 
            
 
            Ms. M. Leanne Tyler
 
            Attorney at Law
 
            1503 Brady St.
 
            Davenport, IA  52803
 
            
 
            Ms. Deborah Dubik
 
            Mr. Greg Egbers
 
            Attorneys at Law
 
            600 Union Arcade Bldg
 
            111 E. 3rd St.
 
            Davenport, IA  52801
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                             2203 2204
 
                                             Filed September 1, 1992
 
                                             Jean M. Ingrassia
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JANET E. MEYERS,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 888380
 
            UNITED PARCEL SERVICE,   
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2203
 
            Claimant has not shown by a preponderance of the evidence 
 
            that she has suffered from chronic exposure to a wide range 
 
            of toxic chemicals while in the employ of employer which has 
 
            resulted in multiple organ system abnormalities.
 
            
 
            2204
 
            Claimant has not proved by a preponderance of the evidence 
 
            that she has suffered a nontraumatically caused mental 
 
            injury that arose out of and in the course of her employment 
 
            with employer.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DARVIN M. BOBST,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 888438
 
            VIKING PUMP, INC.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Darvin M. Bobst, against his employer, Viking 
 
            Pump, Inc., and its insurance carrier, Liberty Mutual 
 
            Insurance Company, to recover benefits as a result of an 
 
            injury allegedly sustained on August 1, 1988.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner at Waterloo, Iowa, on November 25, 1991.  A 
 
            first report of injury has been filed.
 
            
 
                 The record consists of joint exhibits 1 through 21 as 
 
            well as the testimony of claimant, of Mark Durst, of John 
 
            Hanna, of Lynette Bobst, of Donald Knudsen, and of Walter V. 
 
            Cuvelier.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and the oral 
 
            stipulations of the parties at hearing, the parties have 
 
            agreed that the provider of medical services would testify 
 
            that services were reasonable and necessary treatment for 
 
            the condition treated and that the medical costs were fair 
 
            and reasonable and defendants will not offer contrary 
 
            evidence.  The parties further stipulated that claimant was 
 
            off work from August 10, 1988, through August 14, 1988, and 
 
            from February 13, 1989, through September 17, 1989, with a 
 
            light-duty work return on July 9, 1989 to full-time work 
 
            return on September 18, 1989.  The parties also stipulated 
 
            that claimant had a gross weekly wage of $496.00 when 
 
            injured and was married and entitled to four exemptions, 
 
            creating a rate of weekly compensation of $315.09.  They 
 
            further agreed that claimant has received two-sevenths of a 
 
            week of benefits totalling $83.49.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of and in the course of his employment on the alleged injury 
 
            date;
 
            
 
                 2.  Whether a causal relationship exists between the 
 
            alleged injury and claimed benefits;
 
            
 
                 3.  Whether claimant is entitled to benefits and the 
 
            nature and extent of any benefit entitlement;
 
            
 
                 4.  Whether claimant is entitled to payment of certain 
 
            medical costs pursuant to section 85.27;
 
            
 
                 5.  Whether claimant is entitled to additional benefits 
 
            under section 86.13, unnumbered paragraph 4, for 
 
            unreasonable delay or denial of benefits; and,
 
            
 
                 6.  Whether defendants are entitled to a credit in the 
 
            amount of $3,700.00 for sick pay and disability benefits 
 
            paid claimant pursuant to section 85.38(2).
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and reviewed the 
 
            documentary evidence, finds:
 
            
 
                 The claimant is 46-year-old married gentleman who has 
 
            completed tenth grade.  He has also taken several welding 
 
            classes to assist him in his job at Viking Pump.  Claimant's 
 
            welding training has been predominantly on the job, however.  
 
            Claimant worked a variety of unskilled jobs before beginning 
 
            work as a production welder at Viking Pump in 1968.  
 
            Claimant has remained employed with Viking Pump since that 
 
            time, initially working as a production welder and later as 
 
            a maintenance welder.  Subsequent to his August 1, 1988, 
 
            injury and his surgery, claimant was unable to perform as a 
 
            maintenance welder.  Claimant currently runs a small mill 
 
            putting a key way into a shaft used to power a pump.  Eighty 
 
            to ninety percent of the lifting involved is under 20 
 
            pounds; mechanical assistance is available for lifting over 
 
            20 pounds.  Claimant stands throughout the day.  At the end 
 
            of the day, his hips ache and his legs are weak.  Claimant 
 
            has not reached any pain level which he cannot tolerate, 
 
            however.
 
            
 
                 On August 1, 1988, claimant was working in a stooped 
 
            stance in the research and development lab test tank.  He 
 
            had to position by hand 3/4 inch steel pieces weighing 50-60 
 
            pounds.  Claimant experienced pain and then severe "charley 
 
            horses" in the back of his legs.  The Viking Pump nurse 
 
            referred claimant to Steven W. Tarr, M.D., who subsequently 
 
            referred him to Arnold E. Delbridge, M.D., an orthopaedic 
 
            physician.  Dr. Delbridge had previously treated claimant 
 
            for low back problems.  A myelogram of October 3, 1984, had 
 
            shown lumbar disc syndrome.  Dr. Delbridge had then 
 
            performed discograms and chymodiactin injections of the 
 
            L4/L5 and L5/S1 disc spaces.  Dr. Delbridge performed 
 
            surgery on February 13, 1989, which surgery revealed disc 
 
            herniation at both the L5/S1 and L4/L5 levels.  The disc 
 
            material found at L5/S1 was basically hard; free fragments 
 
            were also found.  Dr. Delbridge indicated the latter were 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            likely from the L4/L5 disc space.  The doctor opined the 
 
            free fragments likely represented a recent herniation, which 
 
            herniation likely occurred or was related to the August 1, 
 
            1988, work incident.  Dr. Delbridge previously had opined 
 
            that, given that claimant's back pain increased markedly 
 
            after having been bent over several days at work without a 
 
            chance to straighten up, the acute pain produced in August 
 
            1988 could very well be considered work related.  As 
 
            defendants have offered no countervailing evidence but for 
 
            claimant's previous low back episodes of which Dr. Delbridge 
 
            was aware, Dr. Delbridge's opinions are accepted.
 
            
 
                 On May 12, 1990, Dr. Delbridge instructed claimant not 
 
            to work Saturdays for at least six months to a year.  At 
 
            time of hearing, claimant apparently was still not routinely 
 
            working Saturdays.  Dr. Delbridge returned claimant to 
 
            full-time work on July 9, 1990, with a 25-pound lifting 
 
            restriction.  Also, on July 9, 1990, Dr. Delbridge opined 
 
            that claimant was at maximum medical healing and had a 
 
            permanent partial impairment of 17 percent of the body as a 
 
            whole.  Dr. Delbridge related 6 percent of such to the 
 
            August 1988 injury and 7 percent to the chymodiactin 
 
            injections in 1984.  Dr. Delbridge's testimony relative to 
 
            the August 1988 work activities producing claimant's 
 
            herniated disc and his need for surgery in February 1989 is 
 
            uncontroverted and is accepted.  It is noted that 
 
            chiropractors David E. Vorland, D.C., and L. C. Knutson, 
 
            D.C., treated claimant for a variety of problems including 
 
            lumbar, thoracic and cervical back pain from 1977 through 
 
            1985.  Those facts, like Dr. Delbridge's treatment of 
 
            claimant in 1985, establish that claimant had a preexisting 
 
            condition.  They do not counter Dr. Delbridge's opinion 
 
            testimony and his objective findings at surgery which 
 
            support that claimant had an actual work injury in August 
 
            1988, however.
 
            
 
                 Claimant testified that most other jobs he would be 
 
            able to perform at Viking Pump are not full-time jobs but 
 
            are jobs available for only one or two days and generally 
 
            performed by utility workers.  Claimant earns approximately 
 
            $.25 per hour less than his earnings as a maintenance 
 
            welder.
 
            
 
                 Walter V. Cuvelier, factory manager at Viking Pump, 
 
            indicated that, even if claimant should experience a 25 
 
            percent decline in his work load at his machine (a 
 
            possibility to which claimant alluded), claimant would be 
 
            provided with other work within his restrictions.  Cuvelier 
 
            stated and it is accepted that 6-8 jobs have opened up in 
 
            the past year that are within claimant's restrictions, all 
 
            at approximately the same pay rate.  Cuvelier admitted that 
 
            not all of them would be on the first shift, the shift 
 
            claimant has customarily worked and prefers.  Cuvelier 
 
            indicated that Viking Pump has no current plans for layoffs 
 
            and, if layoffs were to happen, the least senior people 
 
            would be laid off first.  He characterized claimant with 24 
 
            years of work time as having "a lot of seniority."  Cuvelier 
 
            stated, and it is accepted, that Viking has been in 
 
            operation since 1911 and is a stable business unlikely to 
 
            close its doors.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that he can no longer ride 
 
            motorcycles subsequent to his August 1988 work injury.  A 
 
            note of Dr. Delbridge of November 31, 1978, indicates that a 
 
            chiropractic physician, Dr. Miller, had advised claimant not 
 
            to ride his motorcycle the previous summer.  The note 
 
            further states that claimant had sold his cycle subsequent 
 
            to that advice.  Claimant's testimony that he routinely rode 
 
            motorcycles in the time between 1978 and 1988 is found to be 
 
            entitled to little weight, therefore.  Likewise, claimant's 
 
            testimony that he saw chiropractic physicians for his 
 
            shoulder and not for his back is found not credible as it is 
 
            not supported by the chiropractic records in evidence.  It 
 
            is accepted that claimant can no longer roller skate, cannot 
 
            dance without leg problems, and has problems doing gardening 
 
            and yard work as well as doing vehicle maintenance and home 
 
            maintenance.  Given claimant's significant preexisting 
 
            problems, however, and given claimant's tendency to 
 
            overstate which of his problems actually began subsequent to 
 
            August 1988, such limitations are given less weight in 
 
            assessing the actual physical disabilities which developed 
 
            subsequent to August 1988, however.
 
            
 
                 Thomas W. Magner, a certified rehabilitation 
 
            consultant, evaluated claimant and indicated that he 
 
            estimated an industrial disability of "close to" 60 percent 
 
            as the result of claimant's limitations, age, lack of 
 
            transferrable skills, lack of education and reading 
 
            problems.  Magner accepted the characterization by claimant 
 
            and claimant's spouse that he likely has a learning 
 
            disability.  Magner also reported that claimant has 
 
            congenital near blindness in the left eye.  Magner's 
 
            estimate of claimant's industrial disability is given less 
 
            weight in that Magner does not appear to have considered the 
 
            fact that claimant's employer has returned claimant to work, 
 
            has worked with claimant in finding jobs within claimant's 
 
            limitations, and represents a stable, long-term employer 
 
            with whom claimant has had an apparently satisfactory work 
 
            relationship for 24 years.
 
            
 
                 Claimant has seen Glen L. Groothuis, D.C., from 
 
            December 29, 1989, through October 1, 1991, for treatment of 
 
            lumbalgia, facet syndrome and thoracic spine myalgia.  The 
 
            record does not causally relate claimant's treatment with 
 
            Dr. Groothuis to the August 1988 work injury.
 
            
 
                 Claimant has submitted medical charges with Cedar 
 
            Valley Physical Therapy in the amount of $1,128.25.  The 
 
            record reflects that Dr. Delbridge prescribed physical 
 
            therapy for claimant subsequent to his surgery.  Charges are 
 
            also submitted with Dr. Delbridge in the amount of $3,174.00 
 
            all subsequent to and found related to the August 1988 work 
 
            incident.  Additional charge of $693.00 is submitted for 
 
            Beth H. Penrose, M.D., an anesthesiologist, for services 
 
            rendered on February 13, 1989, the date of claimant's 
 
            surgery.  Such is found causally related to claimant's 
 
            August 1988 work injury.
 
            
 
                                conclusions of law
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Our first concern is whether claimant received an 
 
            injury arising out of and in the course of his employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Claimant has established an injury arising out of his 
 
            employment.  Claimant had a work incident that extended over 
 
            several days in early August 1988.  Dr. Delbridge has 
 
            indicated that the finding of fresh soft fragments at 
 
            surgery on February 13, 1989, made it probable that the work 
 
            incident produced claimant's new problems which required 
 
            surgical intervention.
 
            
 
                 Our next concerns are causation and temporary benefit 
 
            entitlement.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 Additionally, a worker who accepts suitable work while 
 
            temporarily partially disabled shall be appropriately 
 
            compensated with temporary partial benefits.  Section 85.33 
 
            (2) and (3).
 
            
 
                 Again, claimant prevails.  Dr. Delbridge's 
 
            uncontroverted testimony once again establishes causal 
 
            relationship between claimant's August 1988 work injury and 
 
            his claimed disabilities.  It is noted that Dr. Delbridge 
 
            has causally related claimant's need for surgery with his 
 
            August 1988 work incident.  Claimant therefore is entitled 
 
            to healing period benefits from August 10, 1988, through 
 
            August 14, 1988, as well as from February 13, 1989, through 
 
            July 9, 1989.  The parties stipulated that claimant was on 
 
            light duty and the record reflects that claimant was on 
 
            part-time duty from July 9, 1989, through August 17, 1989.  
 
            Claimant is therefore entitled to temporary partial 
 
            disability benefits for that time as provided in the 
 
            statute.
 
            
 
                 We reach the question of industrial disability 
 
            entitlement, if any.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 As noted, Dr. Delbridge has attributed six percent of 
 
            claimant's overall permanent partial impairment to his 
 
            August 1988 work injury.  That allocation appears consistent 
 
            with the factual record in that claimant obviously had 
 
            problems requiring either chiropractic or medical 
 
            intervention from at least 1977 onward.  Claimant's previous 
 
            problems did not require any change in his work activities, 
 
            however.  Hence, apportionment of industrial disability is 
 
            not appropriate.
 
            
 
                 Having so said, we consider claimant's appropriate 
 
            industrial disability entitlement.
 
            
 
                 Claimant has a 25-pound work restriction.  That 
 
            restriction required him to leave his established job of 
 
            maintenance welder.  Doing so caused a $.25 per hour wage 
 
            loss.  Additionally, claimant is permitted to work only an 
 
            occasional Saturday.  That also has produced an impact upon 
 
            claimant's actual wages earned.  Those factors appear to be 
 
            most important in assessing claimant's industrial disability 
 
            in this case.  This is true in that the employer has 
 
            retained claimant, albeit with a work transfer, and remains 
 
            committed to retaining claimant.  Additionally, the employer 
 
            is a long-term employer of claimant's and is a 
 
            well-established entity in the local industrial community.  
 
            Given the long-term satisfactory relationship between 
 
            claimant and employer and the employer's commitment to 
 
            retaining claimant, it does not appear likely that claimant 
 
            will need to transfer to another employer.  For that reason, 
 
            claimant's loss of job mobility is given less weight than it 
 
            might otherwise be given.  When the loss of hourly wages, 
 
            the loss of the ability to work routinely on Saturdays and 
 
            the 25-pound weight restriction are all considered in 
 
            balance with claimant's likelihood of stable employment, it 
 
            is found that claimant has sustained a loss of earning 
 
            capacity of 20 percent of the body as a whole, entitling him 
 
            to 100 weeks of permanent partial disability benefits.
 
            
 
                 We reach the question of whether claimant is entitled 
 
            to additional benefits under section 86.13, unnumbered 
 
            paragraph 4, for unreasonable delay or denial of benefits.
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).
 
            
 
                 Early on, some question existed as to whether claimant 
 
            had had a work-related injury.  Dr. Delbridge's early 
 
            correspondence with the company and the insurance carrier so 
 
            reflects.  After claimant's February 13, 1989, surgery, 
 
            however, Dr. Delbridge clearly related claimant's condition 
 
            and his need for surgery to the work incident in August 
 
            1988.  Defendants have produced no viable evidence 
 
            contradicting Dr. Delbridge's opinion testimony in this 
 
            regard.  Dr. Delbridge had long treated claimant and had 
 
            great familiarity with his overall medical history.  Given 
 
            that, it cannot be said that defendants reasonably denied 
 
            claimant benefits after Dr. Delbridge's clear opinion 
 
            testimony supported by objective findings at time of surgery 
 
            was rendered on March 6, 1989.  Claimant is entitled to a 
 
            penalty of 50 percent of healing period and temporary 
 
            partial disability benefits owed between March 6, 1989, and 
 
            September 17, 1989.
 
            
 
                 On July 9, 1990, Dr. Delbridge indicated that six 
 
            percent of claimant's permanent partial impairment related 
 
            to his August 1988 injury.  Given claimant's secure work 
 
            position, however, and the employer's willingness to retain 
 
            claimant, it cannot be said that defendants did not 
 
            reasonably believe that a fair question existed as to 
 
            whether claimant would be entitled to permanent partial 
 
            disability benefits.  Therefore, claimant is not entitled to 
 
            a penalty relative to any amount of permanent partial 
 
            industrial disability awarded.
 
            
 
                 We reach the question of defendants' entitlement to a 
 
            credit under section 85.38(2).
 
            
 
                 Defendants seek a credit of $3,700.00 for previous 
 
            payment of sick pay and disability income.  Defendants are 
 
            apparently asserting that the benefits would not have been 
 
            paid had claimant been entitled to workers' compensation.  
 
            Section 85.38(2).  The record is largely silent in that 
 
            regard.  Claimant, however, has not offered evidence showing 
 
            that the benefits would have been paid in addition to 
 
            workers' compensation benefits.  In most cases, such 
 
            benefits are not paid in addition to workers' compensation 
 
            benefits.  Given that claimant has not offered evidence 
 
            indicating that they would have been paid in addition to 
 
            workers' compensation benefits, defendants are found 
 
            entitled to the credit sought in the amount of $3,700.00.
 
            
 
                 Claimant seeks payment of medical costs under section 
 
            85.27.  It is noted that claimant did not submit an itemized 
 
            list of medical costs seeking to be recovered as required 
 
            under the hearing assignment order.  Given such, the 
 
            undersigned has had some difficulty discerning those costs 
 
            for which recovery is sought.  Defendants, of course, are 
 
            required to provide payment for all charges related to 
 
            compensable injury.  Section 85.27.  As noted in the above 
 
            Findings of Fact, the record does not support that the care 
 
            received with Dr. Groothuis subsequent to August 1988 
 
            relates to claimant's compensable injury.  The record does 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            demonstrate that claimant's physical therapy with Cedar 
 
            Valley Physical Therapy, his treatment with Dr. Delbridge 
 
            and his services with anesthesiologist Penrose do relate to 
 
            his compensable injury.  Claimant is entitled to recovery of 
 
            those costs as delineated in the Order below.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant healing period benefits at the 
 
            rate of three hundred fifteen and 09/100 dollars ($315.09) 
 
            per week from August 10, 1988, through August 14, 1988, and 
 
            from February 13, 1989, through July 8, 1989.
 
            
 
                 Defendants pay claimant temporary partial disability 
 
            benefits from July 9, 1989, through September 17, 1989, at 
 
            the appropriate rate given the hours claimant worked each 
 
            week.
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for one hundred (100) weeks at the rate of three 
 
            hundred fifteen and 09/100 dollars ($315.09) per week with 
 
            such benefits to commence on September 18, 1989.
 
            
 
                 Defendants pay claimant additional benefits pursuant to 
 
            section 86.13(4) in the amount of fifty percent (50%) of 
 
            benefits due from March 6, 1989, through September 17, 1989.
 
            
 
                 Defendants pay accrued amounts in a lump sum.
 
            
 
                 Defendants pay interest pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Defendants pay claimant the following medical expenses:
 
            
 
                 Cedar Valley Physical Therapy, P.C.       $ 1,128.25
 
                 Arnold E. Delbridge, M.D.                   3,174.00
 
                 Beth H. Penrose, M.D.                         693.00
 
                 Total                                     $ 4,995.25
 
            
 
                 Defendants receive a credit in the amount of three 
 
            thousand seven hundred and 00/100 dollars ($3,700.00) for 
 
            sick pay disability income paid claimant.
 
            
 
                 Defendants pay the costs of this action pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as required by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. William S. Smith
 
            Attorney at Law
 
            501 Sycamore
 
            P.O. Box 1947
 
            Waterloo, Iowa  50704
 
            
 
            Mr. Jeffrey J. Greenwood
 
            Attorney at Law
 
            528 West Fourth Street
 
            P.O. Box 1200
 
            Waterloo, Iowa  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1100; 1108; 1801.1
 
                                               1803; 4000.2
 
                                               Filed February 26, 1992
 
                                               HELENJEAN M. WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DARVIN M. BOBST,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 888438
 
            VIKING PUMP, INC.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1100; 1108
 
            Uncontroverted medical evidence established that claimant 
 
            sustained a work injury and related disability.  Fact of 
 
            preexisting condition without more was insufficient to 
 
            override uncontroverted opinion of treating physician.
 
            
 
            1803
 
            Claimant, with 17 percent body as a whole permanent partial 
 
            impairment, 6 percent of which treating physician related to 
 
            work injury, whose lifting was restricted to 25 pounds and 
 
            who was permitted to work Saturdays only occasionally and 
 
            who required a job transfer albeit with the employer 
 
            subsequent to injury, awarded 20 percent permanent partial 
 
            disability.  Claimant had 24 years seniority and 
 
            satisfactory employment relationship with stable employer 
 
            that had existed since 1911 and was committed to retaining 
 
            claimant.
 
            
 
            4000.2; 1801.1
 
            Claimant awarded 50 percent penalty benefits from time 
 
            treating physician issued report relating claimant's 
 
            condition and subsequent surgery to the work incident until 
 
            the date claimant returned to full-duty work.  Period 
 
            included several months where claimant worked part time 
 
            under doctor's supervision for which temporary partial 
 
            benefits were awarded.