Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DOUGLAS C. SLAIKEU,           :
 
                                          :
 
                 Claimant,                :         File No. 894105
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE FOUNDRY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Douglas 
 
            C. Slaikeu against his former employer, John Deere Foundry, 
 
            based upon an alleged injury of May 15, 1987.  Claimant 
 
            seeks weekly compensation for healing period and permanent 
 
            partial disability associated with carpal tunnel syndrome.  
 
            The primary issues to be determined are whether the carpal 
 
            tunnel syndrome is an injury which arose out of and in the 
 
            course of his employment and determination of the claimant's 
 
            entitlement to weekly compensation.
 
            
 
                 The case was heard at Waterloo, Iowa, on February 3, 
 
            1992.  The evidence in this proceeding consists of testimony 
 
            from Douglas Slaikeu and claimant's exhibits 1, 2, 4, 6, 7 
 
            and 8.  Claimant's exhibits 3, 5 and 9 were offered but were 
 
            not received into evidence.  They are with the file as an 
 
            offer of proof only pursuant to agreement of the parties 
 
            made at the conclusion of the hearing, subsequent to the 
 
            departure of the court reporter.  Both counsel and the 
 
            undersigned have signed the exhibit envelope to indicate 
 
            that the documents are with the file as an offer of proof 
 
            but for no other purpose.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 Douglas C. Slaikeu is a 39-year-old high school 
 
            graduate who lives at Waterloo, Iowa.  He commenced his 
 
            employment with John Deere in 1972 and remained employed at 
 
            John Deere through the summer of 1987.  The last day that he 
 
            actually worked is uncertain.  It is noted, however, that he 
 
            was placed on restrictions against repetitive gripping and 
 
            twisting and from intense use of vibratory tools effective 
 
            commencing May 13, 1987 (exhibit 6, page 23).
 
            
 
                 According to the record, Slaikeu had no problems with 
 
            his hands until after resuming work on or about February 23, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            1987.  He had been in a layoff status since December 15, 
 
            1985.  The first report of any problem with his hands is 
 
            dated May 8, 1987 (exhibit 6, pages 22 and 23).  EMG tests 
 
            were conducted which showed him to have bilateral carpal 
 
            tunnel syndrome which was worse on the left side (exhibit 6, 
 
            pages 27 and 28).  Slaikeu apparently worked with activity 
 
            restrictions and then was known to be off work on June 30, 
 
            1987 (exhibit 6, page 35).  He did not return to work at 
 
            John Deere subsequent to June 30, 1987.  During the summer 
 
            and fall of 1987, he continued to receive treatment for his 
 
            carpal tunnel syndrome from the company physician (exhibit 
 
            6, page 35).  Repeat EMGs were conducted on September 24, 
 
            1987, and February 17, 1988.  The first of those two showed 
 
            slight improvement.  The second showed normal results on the 
 
            right extremity and improved but abnormal results for the 
 
            left upper extremity (exhibit 6, pages 29-33).
 
            
 
                 After Slaikeu obtained other employment, the company 
 
            discontinued care for the condition.  Slaikeu eventually 
 
            sought treatment at the University of Iowa Hospitals and 
 
            Clinics where he underwent surgery for the bilateral carpal 
 
            tunnel syndrome.  The precise amount of time he was disabled 
 
            as a result of that surgery appears uncertain, but it 
 
            appears to be in the range of approximately three months, an 
 
            amount which is within the range of that normally seen 
 
            following bilateral carpal tunnel release surgery.  While 
 
            the starting date is uncertain from the record, it appears 
 
            to have been approximately August 1, 1990.
 
            
 
                 In view of the provisions of the hearing assignment 
 
            order, the claimant was unable to submit into evidence any 
 
            medical ratings of permanent impairment, his medical records 
 
            associated with the surgery and his medical expenses 
 
            associated with the surgery.  According to claimant's 
 
            testimony at hearing, he continues to experience weakness 
 
            and fatiguability in his hands, although the numbness and 
 
            other complaints were resolved by the surgery.  His residual 
 
            complaints appear to be quite mild in comparison to those 
 
            sometimes seen in other cases dealing with this same 
 
            physical affliction.  The evidence fails to show the 
 
            existence of any permanent disability as a result of the 
 
            carpal tunnel syndrome.
 
            
 
                 The crucial issue in the case is whether the condition 
 
            is one which arose out of and in the course of Slaikeu's 
 
            employment with the John Deere Foundry.  William F. Blair, 
 
            M.D., the treating surgeon, has expressed an opinion that 
 
            the condition is most likely related to the claimant's work 
 
            activities (exhibits 1 and 2).  The history given to Dr. 
 
            Blair is not shown in the record, however, and that greatly 
 
            detracts from the amount of weight which can be given to the 
 
            opinion.  The history was possibly correct.  There is 
 
            nothing in the record to indicate that it was erroneous in 
 
            any way.  Claimant's exhibit 6 contains the records from the 
 
            employer's medical department.  Those records show a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            scenario of events which would be consistent with the 
 
            employment having caused the condition.  The employer 
 
            initially treated the condition as though it were work 
 
            related.  There is no expert opinion evidence which states 
 
            that the condition was not work related.  The claimant's 
 
            work activities which he described at hearing would be 
 
            expected to place considerable stress and strain on the 
 
            individual's hands and wrists, but they did not appear to be 
 
            as stressful as the causative activities often seen in 
 
            carpal tunnel syndrome cases.  When the record is viewed as 
 
            a whole, the assessment made by Dr. Blair is found to be 
 
            correct.  It is based upon an unknown medical history, but 
 
            if it were viewed in light of the information contained in 
 
            exhibit 6, such would certainly be sufficient to support the 
 
            opinion.  Where a medical opinion is uncontradicted by an 
 
            opposing opinion, questions regarding the accuracy of the 
 
            foundational facts upon which the opinion is based are less 
 
            important than if the opinion were controverted by other 
 
            expect evidence.  This is particularly true where the 
 
            foundational facts shown in the record support the opinion, 
 
            even though it cannot be certain whether or not the 
 
            physician was aware of those foundational facts at the time 
 
            of expressing the opinion.  Where the known foundational 
 
            facts support the expert opinion, it is more probable than 
 
            not that the opinion is based on those known facts, in the 
 
            absence of any indication to the contrary.
 
            
 
                 It is therefore found that the work Douglas Slaikeu 
 
            performed at the John Deere Foundry between the dates of 
 
            February 23, 1987, and May 13, 1987, were a substantial 
 
            factor in producing the carpal tunnel syndrome which was 
 
            diagnosed in May and June of 1987.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 13, 1987, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The words "arising out of" refer to the cause or source 
 
            of the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).  The "arising out of" requirement 
 
            is satisfied by showing a causal relationship between the 
 
            employment and the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
            415, 417 (Iowa 1986).
 
            
 
                 The actual date of injury is amended from May 15, 1987, 
 
            to May 13, 1987, in order to conform to the evidence.  The 
 
            variance is determined not to have any substantial impact on 
 
            the outcome of the case.  The evidence does not show that 
 
            the claimant left his employment with John Deere Foundry as 
 
            a result of disablement related to the carpal tunnel 
 
            syndrome.  The date of disablement is not a viable choice 
 

 
            
 
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            for the date of injury.
 
            
 
                 The assessment of the case made by Dr. Blair has been 
 
            determined to be correct.  The claimant has therefore 
 
            carried the burden of proving that the carpal tunnel 
 
            syndrome is an injury which arose out of and in the course 
 
            of his employment with the John Deere Foundry.  The onset of 
 
            his complaints occurred while in that occupation.  Once 
 
            removed from the work, his symptoms and the severity of the 
 
            condition improved.  These are all factors consistent with 
 
            the work having been a causative factor.
 
            
 
                 The claimant seeks compensation for healing period.  It 
 
            has previously been found that three months was a reasonable 
 
            amount of time for the claimant to have recovered from the 
 
            surgery and that August 1, 1990, appeared to be the date 
 
            that the first surgery was performed.  It has likewise been 
 
            found that the evidence does not show it to be probable that 
 
            the claimant has any ascertainable degree of disability 
 
            which resulted from the carpal tunnel syndrome.  His 
 
            entitlement is therefore limited to three months of 
 
            temporary total disability payable commencing August 1, 
 
            1990, in accordance with section 85.33 of The Code.  Three 
 
            months is equivalent to 13 weeks.
 
            
 
                 Since claimant's medical expense records are not in 
 
            evidence, no award of medical benefits can be made.
 
            
 
                 The parties dispute which 13 weeks should be counted in 
 
            determining the rate of compensation to be applied in this 
 
            case.  The claimant's contentions are found at exhibit 7, 
 
            page 1, while defendant's contentions are found at exhibit 
 
            7, pages 3-9.  Upon reviewing the pay records, it appears 
 
            that the claimant was off work due to an eye problem from 
 
            approximately March 29 through April 2, 1987 (exhibit 6, 
 
            page 18).  When determining the appropriate 13 weeks to be 
 
            considered, the 13 weeks should be those where the employee 
 
            would have worked the customary hours for the full pay 
 
            period in which he was injured.  Weeks which contain absence 
 
            due to injury, illness, vacation or other conditions where 
 
            the employee worked less than the normal hours of work 
 
            available are excluded when computing the rate.  Schotanus 
 
            v. Command Hydraulics, Inc., I Iowa Industrial Commissioner 
 
            Report 294, 298 (1981); Lewis v. Aalf's Mfg. Co., I Iowa 
 
            Industrial Commissioner Report 206, 207 (App. Decn. 1980).  
 
            Since carpal tunnel syndrome in this case is being treated 
 
            by the parties as a cumulative trauma injury, a correct date 
 
            of injury upon which to base the rate would be the last day 
 
            worked before disablement.  Since those records are not in 
 
            evidence, including the date of the last day of work, May 
 
            13, 1987, will be treated as the date of injury.  It is the 
 
            last date of exposure prior to partial disablement being 
 
            manifested in the form of activity restrictions.
 
            
 
                 The parties agree that the week ending May 17, 1987, 
 
            should be counted as the first week.  The parties seem to be 
 
            in agreement that the computation should include the weeks 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            ending May 10, May 3, April 26, April 19, 1987, December 8, 
 
            1985, November 17, 1985, and November 3, 1985.  Which of the 
 
            other weeks that should be used is in dispute.  The first 
 
            disputed week is the week ending April 12, 1987, when the 
 
            claimant worked 32 hours and was paid $379.04.  The records 
 
            do not show any unusual absence or that the working of less 
 
            than 40 hours was attributable to anything other than the 
 
            amount of work available.  It is therefore determined that 
 
            the week ending April 12, 1987, shall be included in 
 
            computing the rate.  The same situation exists for the week 
 
            ending March 22, 1987, and it will likewise be included with 
 
            earnings of $369.92.  It is determined that, despite the 
 
            apparent agreement, the week ending April 19, 1987, should 
 
            be excluded since it includes a paid holiday, even though 
 
            the rate of holiday pay appears to be the same as the rate 
 
            of pay for normal work hours.  It is not known whether work 
 
            would have been available on the holiday.  The week of March 
 
            15, 1987, is includable based upon the total of 32.5 work 
 
            hours and 8 hours of paid personal absence at the same rate 
 
            as the work hours.  If no work was available, there would 
 
            have been no need to take a personal absence.  The total 
 
            earnings for that week are therefore $466.62.  When 
 
            reviewing the pay records, it is determined that the weeks 
 
            to be counted are the weeks ending May 17, May 10, May 3, 
 
            April 26, April 12, March 29, March 22 and March 15, 1987.  
 
            The remaining weeks to be used in computing the rate are the 
 
            weeks ending December 8, November 17, November 10, November 
 
            3, and October 20, 1985.  The gross earnings are therefore 
 
            $6,501.98.  The 13-week average is therefore $500.15.  The 
 
            record appears to show that the claimant was married with 
 
            two children and therefore is entitled to four exemptions in 
 
            computing the rate of compensation.  Using the July 1, 1986, 
 
            benefit booklet, establishes that the average weekly wages 
 
            of $500.15 provide a weekly compensation benefit of $309.81.
 
            
 
                  Week
 
                 Ending                Hours               Earnings
 
            
 
                05-17-87               39.50             $  467.88
 
                05-10-87               47.88                567.04
 
                05-03-87               66.25                784.73
 
                04-26-87               68.00                805.46
 
                04-12-87               32.00                379.04
 
                03-29-87               40.15                475.58
 
                03-22-87               32.00                369.92
 
                03-15-87               32.50                466.62
 
                12-08-85               40.00                448.40
 
                11-17-85               39.50                437.99
 
                11-10-85               32.00                356.80
 
                11-03-85               40.00                495.80
 
                10-20-85               36.00                446.22
 
                             Total                       $6,501.98
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
                             13-Week Average                500.15
 
                             Compensation Rate              309.81
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the John Deere Foundry pay 
 
            Douglas C. Slaikeu thirteen (13) weeks of compensation for 
 
            temporary total disability payable at the rate of three 
 
            hundred nine and 81/100 dollars ($309.81) per week 
 
            commencing August 1, 1990.  The entire amount is past due 
 
            and owing and shall be paid to the claimant in a lump sum 
 
            together with interest computed pursuant to section 85.30 of 
 
            The Code.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            6th Floor, First National Building
 
            P.O. Box 2634
 
            Waterloo, Iowa  50704-2634
 
            
 
            Mr. John W. Rathert
 
            Attorney at Law
 
            620 Lafayette Street
 
            P.O. Box 178
 
            Waterloo, Iowa  50704
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                               1402.30; 1801; 1803; 3001
 
                                               Filed February 10, 1992
 
                                               MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DOUGLAS C. SLAIKEU,           :
 
                                          :
 
                 Claimant,                :         File No. 894105
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE FOUNDRY,           :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1402.30
 
            
 
                 Uncontroverted expert opinion finding causation held to 
 
            be sufficient to establish arising out of though the record 
 
            did not show what precise facts the expert had relied upon 
 
            when forming the opinion.  The facts shown to exist in the 
 
            record were consistent with the opinion that was expressed 
 
            and, if known by the expert, would have supported the 
 
            opinion.  There was no indication that the expert relied on 
 
            incorrect facts or assumptions.
 
            
 
            1801; 1803
 
            
 
                 Claimant, with bilateral carpal tunnel syndrome, had no 
 
            impairment ratings or medically imposed activity 
 
            restrictions and only mild subjective complaints.  It was 
 
            held that the evidence did not show any permanent 
 
            disability.  The record showed that the claimant had surgery 
 
            for bilateral carpal tunnel syndrome, but it did not contain 
 
            medical evidence showing the duration of recovery from the 
 
            surgery.  The claimant's testimony of the amount of time he 
 
            was in treatment before being released and agency expertise 
 
            from similar cases were relied upon to provide an 
 
            entitlement to 13 weeks of temporary total disability.
 
            
 
            3001
 
            
 
                 When determining the appropriate 13 weeks, those weeks 
 
            where the employee appeared to have worked whenever work was 
 
            available were counted.  Also counted were the weeks when 
 
            the employee was on a paid excused absence where the rate of 
 
            pay was the same as though he had been working.  Weeks which 
 
            included holidays were not included since it was not known 
 
            whether work would have been available, except for the 
 
            holiday.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MASTAN SINGH,                 :
 
                                          :
 
                 Claimant,                :         File No. 894106
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE DUBUQUE WORKS      :         D E C I S I O N
 
            OF DEERE & COMPANY,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Mastan Singh filed a petition in arbitration 
 
            against self-insured defendant employer John Deere Dubuque 
 
            Works upon allegations of psychological injury suffered as 
 
            the result of work-connected stress.  As a result, he seeks 
 
            benefits under the Iowa Workers' Compensation Act.
 
            
 
                 This cause came on for hearing in Dubuque, Iowa, on 
 
            October 15, 1991.  Claimant was under medical advice to 
 
            limit participation to 1-2 hours lest he risk a cerebral 
 
            vascular accident.  Claimant was allowed to discontinue his 
 
            testimony after two hours, but the hearing continued in his 
 
            absence.  Mr. Singh completed his hearing testimony by 
 
            deposition on November 5, 1991.  The deposition was 
 
            transcribed and filed with the agency on November 19, 1991.  
 
            The cause is fully submitted as of that date.
 
            
 
                 The record consists of claimant's exhibits 1 through 
 
            26, defendant's exhibits 1 through 49 and the testimony of 
 
            claimant (including by deposition), Rita Singh, Mervin 
 
            McClenahan, M.D., Alois Frommelt, Jeffrey Sanford, John 
 
            Myers, Frank Sercu and Joseph Brunskill.  Although the 
 
            hearing assignment order required the parties to make every 
 
            reasonable effort to avoid duplication of documentary 
 
            exhibits, it is clear that respective counsel made no effort 
 
            whatsoever to comply.  Attorneys Andres and McCarthy are 
 
            notified that this deputy reserves the option of requiring 
 
            proof of compliance with the hearing assignment order before 
 
            proceeding in future litigated cases.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship, the proper rate of compensation and 
 
            that defendant is entitled to certain credits in the event 
 
            of an adverse decision.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained a psychological injury 
 
            arising out of and in the course of his employment on 
 
            December 8, 1986;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the claimed injury and temporary or permanent disability; 
 
            and,
 
            
 
                 3.  The extent of temporary and permanent disability, 
 
            if any.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Mastan Singh, 55 years of age at hearing, was raised in 
 
            the state of Punjab, India, and came to the United States in 
 
            1956, attaining citizenship in 1961.  He graduated from high 
 
            school in India and has two years of junior college in the 
 
            United States, although no degree.  After employment as a 
 
            clerk and timekeeper with two other businesses, he commenced 
 
            employment with defendant John Deere Dubuque Works in 1966.  
 
            John Deere is engaged in heavy manufacture, particularly of 
 
            farm equipment.  Claimant discontinued working for John 
 
            Deere in December 1986, although he was paid full salary for 
 
            another year, and disability payments thereafter.
 
            
 
                 M. L. McClenahan, M.D., the company doctor, summarized 
 
            claimant's numerous physical problems in a letter to the 
 
            John Deere personnel manager dated October 28, 1987:
 
            
 
                 Mastan Singh is a 51 year old married gentleman 
 
                 who has been an employee of John Deere Dubuque 
 
                 Works since 28 June 1966.  He has been unable to 
 
                 work since 9 December 1986.  Mr. Singh suffers 
 
                 carotid artery stenosis, renal artery stenosis, 
 
                 labile hypertension and Diabetes mellitus.  The 
 
                 first condition is disabling in and of itself, so 
 
                 the combination preclude [sic] the employee's ever 
 
                 being able to perform meaningful duties here.
 
            
 
                 Mastan was in relatively good health until 1977 
 
                 when control of blood pressure began to be a 
 
                 problem.  (Episodic lumbar muscle problems dated 
 
                 to 1967, but have not been incapacitating).  
 
                 Diabetes mellitus was diagnosed in 1978 and 
 
                 adequate control of this has been difficult to 
 
                 achieve.  It is conceivable that current vascular 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 problems had some origin with the hyperglycemia.
 
            
 
                 Peculiarities of cerebral functioning began as 
 
                 early as 1980 when an episode of vertigo lasted a 
 
                 quarter hour.  In November of 1984 his "mind went 
 
                 blank" with resultant amnesia from 10:00 PM to the 
 
                 following morning.  In early August 1986, the 
 
                 patient phoned me describing a sudden onset of 
 
                 left sided weakness (arm and leg) with inability 
 
                 to speak.  This lasted several minutes and was 
 
                 later diagnosed as a transient ischemic attack.  
 
                 The patient continues manifesting some "memory 
 
                 lapses" light headedness, and emotional lability.
 
            
 
                 He has on-going care for elevated renin and 
 
                 unilateral renal artery stenosis.  At this time 
 
                 his nephrologist has the process under adequate 
 
                 control.
 
            
 
                 Mr. Singh reports that dizzy spells are becoming 
 
                 more frequent.  Two days ago "my left side went 
 
                 numb and I fell".  His primary physician has 
 
                 recommended that he not drive his car and not walk 
 
                 more than a few blocks from his home.  Mastan's 
 
                 illnesses are permanent.  It is clear that there 
 
                 is no job he will be able to perform here, 
 
                 therefore is permanently and totally disabled.
 
            
 
            (Defendant's exhibit 2, page 1)
 
            
 
                 Even this unhappy situation is but the tip of the 
 
            iceberg.  There is evidence that Mr. Singh has suffered one 
 
            or more strokes since leaving Deere (he testified to a loss 
 
            of function on the left side continuing through his 
 
            deposition on November 5, 1991), and he suffered a 
 
            myocardial infarction followed by triple coronary bypass 
 
            surgery in July 1988.  In addition, Mr. Singh asserts that 
 
            he is independently disabled on a permanent and total basis 
 
            due to psychiatric impairment stemming from harassment, 
 
            discrimination and general stress during his years of 
 
            employment at John Deere.
 
            
 
                 Although claimant personally blames essentially all of 
 
            his physical problems on work-related stress (including 
 
            dizziness and fainting spells, blurred vision in the right 
 
            eye, chest pain, left-sided paresthesias, hypertension, 
 
            strokes, renal artery stenosis and his infarction), he seeks 
 
            compensation for psychiatric impairment only in this 
 
            proceeding.
 
            
 
                 Claimant has a long history of psychiatric treatment 
 
            with multiple and frequent hospitalizations, both voluntary 
 
            and involuntary.  It is necessary to consider Mr. Singh's 
 
            underlying personality and psychological status not only to 
 
            determine if he has sustained an emotional insult from 
 
            alleged job stress, but also to weigh the validity of his 
 
            accusations, since Mr. Singh is the only eyewitness to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            support his version of events.
 
            
 
                 Sushil Upadhyay, M.D., testified by deposition on May 
 
            22, 1991.  Dr. Upadhyay, a psychiatrist, treated claimant 
 
            from February 5 through April 2, 1987, at the Mental Health 
 
            Institute in Independence, Iowa.  He testified:
 
            
 
                 Q.  Could you go ahead and tell me what the 
 
                 results were of the psychological testing that was 
 
                 performed?
 
            
 
                 A.  There was sufficient evidence in test findings 
 
                 to suggest a great deal of guilt followed by the 
 
                 depression.  The degree of the depression has also 
 
                 reached the point that passive paranoid ideation 
 
                 is taking place.  So even if somebody is talking 
 
                 nice to him, he feels that everybody is against 
 
                 him.  That's part of their thinking like if you 
 
                 want to help him, he feels that you have something 
 
                 against him.  Degree of the depression has also 
 
                 reached the point that passive paranoid ideation 
 
                 is taking place and is predominant in Mastan's 
 
                 over-all functioning.  Mastan is trying to hide 
 
                 his depression, inadequacy, worthlessness, despair 
 
                 and rejection and general emotional turmoil.  And 
 
                 the codes might suggest a borderline psychotic 
 
                 depression with very precarious defenses and 
 
                 controls.
 
            
 
                 Q.  Was an MMPI test administered?
 
            
 
                 A.  Yes.  These are the results from that.
 
            
 
                 Q.  Okay.
 
            
 
                 A.  And psychologist mentioned patient is 
 
                 suffering from passive dependent features.  It's a 
 
                 personality disorder.
 
            
 
            (Dr. Upadhyay deposition, page 12, line 22 through page 13, 
 
            line 22)
 
            
 
                 Another Minnesota Multiphasic Personality Inventory 
 
            (MMPI) was given on April 1, 1991, during a later 
 
            hospitalization.  The interpretation noted possible problems 
 
            with its own validity, as claimant's responses to items in 
 
            the latter portion of the MMPI were inconsistent with 
 
            earlier responses and he may have made the latter responses 
 
            carelessly or in a random manner.  The reviewer thought 
 
            there was some possibility that the clinical report was an 
 
            exaggerated picture of claimant's current situation, since 
 
            he was presenting an unusual number of psychological 
 
            symptoms; an "extreme response set" which could result from 
 
            poor reading ability, confusion, disorientation, stress, or 
 
            a need for attention.  "Clinical patients with this validity 
 
            profile are often confused, distractible, and show memory 
 
            problems.  Evidence of delusions and thought disorder may be 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            present.  He may be showing a high degree of distress and 
 
            personality deterioration."
 
            
 
                 In pertinent part, the reviewer found:
 
            
 
                 SYMPTOMATIC PATTERNS
 
            
 
                 Individuals with this MMPI-2 profile usually are 
 
                 experiencing much psychological distress and 
 
                 personality deterioration.  He is quite disturbed, 
 
                 hyperactive, and seems to have a great deal of 
 
                 difficulty with emotional control, all of which 
 
                 may seem threatening to others.  He may have quite 
 
                 unrealistic or bizarre plans and a loud and 
 
                 boastful manner.  Individuals with this profile 
 
                 are usually viewed as having a thought disorder.  
 
                 They are confused, disorganized, have a hard time 
 
                 concentrating, and tend to withdraw into fantasy 
 
                 and to manifest paranoid ideation.  There is a 
 
                 strong likelihood that the client is experiencing 
 
                 delusions or hallucinations, along with other 
 
                 signs of serious disturbance such as autistic 
 
                 thinking and bizarre speech.  Many individuals 
 
                 with this profile are unable to care for 
 
                 themselves and require supervision or a controlled 
 
                 environment.
 
            
 
                 The client seems to lack the cultural interests 
 
                 characteristic of individuals with his educational 
 
                 level.  He has a rather limited range of interests 
 
                 and prefers stereotyped masculine activities to 
 
                 artistic or literary pursuits or introspective 
 
                 experiences.  He tends to be quite competitive and 
 
                 may feel the need to be or appear macho.  He may 
 
                 over-emphasize the masculine role and feel the 
 
                 need to dominate women.  Interpersonally, he is 
 
                 likely to be somewhat intolerant and insensitive 
 
                 and others may find him rather crude, coarse, and 
 
                 narrow-minded.
 
            
 
                 INTERPERSONAL RELATIONS
 
            
 
                 He appears to have very disturbed interpersonal 
 
                 relationships.  He is unpredictable and demanding 
 
                 with others, becoming hostile when his needs are 
 
                 not met.  He appears to have a poor sexual 
 
                 adjustment.  He is probably behaving in 
 
                 unpredictable and erratic ways which may produce a 
 
                 great deal of marital strain.
 
            
 
                 BEHAVIOR STABILITY
 
            
 
                 His MMPI-2 profile reflects a pattern of extreme 
 
                 personal instability.  He is quite overactive and 
 
                 may behave in erratic and threatening ways.  If 
 
                 retested at a later date his profile might change 
 
                 somewhat; however, major personality features and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 symptoms are likely to remain fairly constant.  
 
                 His interpersonal style is not likely to change 
 
                 significantly if retested at a later date.
 
            
 
            (Defendant's exhibit 23, pages 3 and 4)
 
            
 
                 Measurements of claimant's intelligence have varied 
 
            widely.  During hospitalization at the Mayo Clinic in 
 
            Minnesota, claimant was measured on January 27, 1987, as 
 
            having a full scale IQ of 83 on the Wechsler Adult 
 
            Intelligence Scale, showing low average intelligence and low 
 
            average short-term memory with no indication of cognitive 
 
            deficits.  Rorschach and MMPI testing showed claimant 
 
            severely depressed and anxious with high scores on three 
 
            special scales measuring autistic thinking and impaired 
 
            reality testing, thus raising the possibility of psychosis.
 
            
 
                 However, further testing on February 6 and 10, 1987, at 
 
            the Independence Mental Health Institute found a full-scale 
 
            Wechsler IQ of 105, indicating an upper average intellectual 
 
            level.  Clinical psychologist Josh Rosenberg also employed 
 
            other tests, again including the Rorschach and MMPI.  
 
            Rosenberg reported that seven elevated codes in the MMPI 
 
            suggested a borderline psychotic depression with very 
 
            precarious defenses and controls.  Diagnostic impression was 
 
            of major depression, recurrent, with paranoid features and 
 
            passive dependent features.
 
            
 
                 In his testimony at hearing, claimant appeared to be 
 
            very slow, showed a poor memory, was frequently 
 
            non-responsive and in general failed to track well on 
 
            questioning.  A review of his subsequent deposition 
 
            testimony also suggests a degree of confusion and inability 
 
            to track.  According to his wife, Rita Singh, this is 
 
            related to two strokes claimant suffered in March 1991.  
 
            Claimant's intellectual functioning is apparently subject to 
 
            a fairly wide degree of day-to-day variation and, he is 
 
            somewhat disadvantaged by a lack of fluency in the English 
 
            language.  This observer could well believe that Mr. Singh 
 
            might experience difficulty fitting in well on a personal 
 
            level with other factory workers in this heavy industry.
 
            
 
                 It is Mastan Singh's belief that work-induced stress 
 
            accumulated over the years to cause his psychological 
 
            impairment.  He complains generally that management shifted 
 
            him from job to job, placed him in dangerous factory 
 
            settings, supervised him too closely (overly watchful and 
 
            suspicious) and considered him a malingerer due to frequent 
 
            medical complaints, especially of dizziness and faint 
 
            headedness.  (Rita Singh testified that claimant had been 
 
            hospitalized 27 times from 1977 to June 15, 1991; 7 of those 
 
            being psychiatric.)  He complains that other workers 
 
            discriminated against him on the bases of race and 
 
            nationality, for example, by suggesting that he return to 
 
            India to free up his job for a native American.  Claimant 
 
            now feels vindicated because only after he quit working did 
 
            physicians diagnose carotid artery stenosis of a greater 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            than 50 percent blockage; this recently discovered defect 
 
            furnishes a physiological explanation consistent with his 
 
            history of transient ischemic attacks (TIAs).
 
            
 
                 Generally speaking, claimant furnished few details as 
 
            to what he considers to constitute "harassment."  According 
 
            to his wife, he attributes every one of his problems to work 
 
            stress and his supervisors.
 
            
 
                 John Myers, an advance buyer for defendant, testified 
 
            that claimant became emotional when he was confronted over 
 
            complaints that he could never be found in his designated 
 
            work area.  He noted that claimant attracted complaints from 
 
            supervisors throughout the plant frequently, but saw no 
 
            harassment on the part of those supervisors.  Myers believed 
 
            that claimant thought he was harassed when he was questioned 
 
            in detail about his job performance, but that was only 
 
            because he drew so many complaints.  Myers on one occasion 
 
            disciplined another employee for criticizing claimant as a 
 
            poor worker.  However, Myers was aware of a degree of name 
 
            calling and practical jokes directed at claimant by 
 
            coworkers.
 
            
 
                 Frank Sercu, manager of processing, was claimant's 
 
            supervisor.  He noted that claimant refused to do jobs he 
 
            considered "too difficult," and that on one occasion when he 
 
            made special arrangements to procure a different job for 
 
            claimant, this, too, was refused at first.  He denied that 
 
            he or, to his knowledge, any other supervisor harassed 
 
            claimant and was unaware of any practical jokes played on 
 
            him.  Claimant did not complain of being harassed during his 
 
            employment, but made frequent exaggerated complaints on 
 
            other issues, such as noise levels.  When upset, claimant 
 
            refused to work hard.
 
            
 
                 Joseph Brunskill, supervisor of strategic production 
 
            control, directly supervised claimant during his last six 
 
            months on the job.  However, for various health reasons, 
 
            claimant worked only about four weeks during those six 
 
            months.  Brunskill also saw no harassment of claimant and 
 
            noted that he made no such complaints.  He testified that 
 
            coworkers frequently complained of claimant's error-ridden 
 
            work, and noted that claimant often accused others of 
 
            sabotaging his work at such times.  He generally described 
 
            claimant as recalcitrant and unwilling to try new jobs.  On 
 
            one occasion, claimant tried a new job only for about ten 
 
            minutes (after he had refused two different prior jobs) 
 
            before deciding that "I'm too dumb, I can't do that job," 
 
            breaking down emotionally and heading directly to the 
 
            medical department.  In one conference held to find claimant 
 
            an appropriate job, Mr. Singh refused to speak at all.
 
            
 
                 Alois Frommelt, personnel administrator, has known 
 
            claimant since 1975.  John Deere has had at least two major 
 
            reorganizations involving large work force reductions, these 
 
            being in 1977 and 1985.  In 1977, salaried employees were 
 
            reduced from approximately 2,000 to 1,000 and wage earners 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            from 6,000 to 2,000.  Claimant was essentially exempt from 
 
            these reorganizations, both due to his history of medical 
 
            problems and for affirmative action reasons, claimant being 
 
            valuable in the latter context due to his cultural 
 
            background.  According to Frommelt, John Deere management 
 
            has worked at least as hard to assist claimant since 1975 as 
 
            any other employee in the Dubuque plant.  Frommelt found 
 
            claimant at least 6-8 jobs to fit within various medical 
 
            restrictions, claimant many times displacing other workers, 
 
            including at least one minority employee.  Claimant was 
 
            permitted to refuse jobs, a privilege not granted to any 
 
            other employees.  Frommelt was unaware of any harassment 
 
            directed at claimant.
 
            
 
                 Dr. Upadhyay, who diagnosed adjustment disorder with 
 
            depression, is of the view that both medical problems and 
 
            the stress claimant perceived at work were material factors 
 
            in bringing about his adjustment disorder.  Asked to compare 
 
            stresses claimant experienced in his employment to those 
 
            which an individual ordinarily runs into in nonemployment 
 
            life, he testified:
 
            
 
                 A.  Actually, he was little different than the 
 
                 normal person.  When a person has some personality 
 
                 disorder, we cannot continue him with other -- 
 
                 like normal person can just tolerate some stress, 
 
                 and they can act, but he has no ability to exist 
 
                 with the stress.
 
            
 
                 Q.  He had no ability what?
 
            
 
                 A.  He had no ability to exist with this stress.
 
            
 
                 Q.  Okay.  The stresses, though, that were present 
 
                 at his place of employment, is it your opinion 
 
                 that those stresses were greater than what another 
 
                 individual might be confronted with in an ordinary 
 
                 non-employment life, or do you think that these 
 
                 stresses were less?  Just tell me how you compare 
 
                 the stresses that Mr. Singh was confronted with at 
 
                 work with stresses that people ordinarily are 
 
                 confronted with in their non-employment life.
 
            
 
                 A.  To me like normal person can realize how much 
 
                 they need employment so they tolerate stress quite 
 
                 frequently, and then he was not in a condition to 
 
                 tolerate normal stress.
 
            
 
                 Q.  But the stresses that were present at his 
 
                 place of employment, were these greater stresses 
 
                 than what people usually are confronted with?
 
            
 
                 A.  For him it was definitely greater.
 
            
 
                 Q.  What about for an ordinary individual?
 
            
 
                 A.  Oh, they would tolerate the stress.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Q.  Pardon?
 
            
 
                 A.  They tolerate the stress, and they work in a 
 
                 normal condition.
 
            
 
                 Q.  You're saying that ordinary people might be 
 
                 able to resolve this stress and overcome it?
 
            
 
                 A.  Sure.
 
            
 
                 Q.  I think you're saying Mr. Singh could not?
 
            
 
                 A.  Yeah, That's right.
 
            
 
                 Q.  Why could he not overcome them?
 
            
 
                 A.  It's partly his medical condition and partly 
 
                 personality disorder.
 
            
 
            (Dr. Upadhyay deposition, page 23, line 6 through page 24, 
 
            line 21)
 
            
 
                 And:
 
            
 
                 Q.  The stress present in Mr. Singh's employment, 
 
                 how does that stress compare with what people 
 
                 ordinarily have in their employment?  Do you think 
 
                 these were greater than usual stresses, average 
 
                 stresses of employment?  What is your opinion in 
 
                 that regard?
 
            
 
                 A.  Oh, people come with different type of stress, 
 
                 and he had -- like to looking at other people's 
 
                 stress, I feel it was average.
 
            
 
            (Dr. Upadhyay deposition, page 26, lines 13 through 21)
 
            
 
                 Dr. Upadhyay noted that claimant's personality disorder 
 
            is a life-long diagnosis which preexisted employment.  In a 
 
            continuing downhill pattern, each episode of psychiatric 
 
            distress has reduced his ability to tolerate stress.  He 
 
            noted that claimant's family has given a history indicating 
 
            a near life-long tendency to be overreactive to situational 
 
            stressors.
 
            
 
                 Newton Chun, M.D., testified by deposition on May 21, 
 
            1991.  Dr. Chun is board certified in general surgery and in 
 
            thoracic and cardiovascular surgery.  He has treated 
 
            claimant since 1974 and noted that as early as 1977, there 
 
            were complaints of emotional depression.  To his knowledge, 
 
            there was no precipitating factor other than job-related 
 
            stress.  Dr. Chun is also of the view that claimant is 
 
            medically disabled by organic reasons other than psychiatric 
 
            distress.  Within a reasonable degree of medical certainty, 
 
            claimant is not "completely" disabled by psychiatric 
 
            problems.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has long been treated by Richard H. Lee, M.D., 
 
            a psychiatrist.  As early as 1981, Dr. Lee suggested that 
 
            claimant made use of his medical problems in efforts to 
 
            manipulate John Deere into assigning what he believed would 
 
            be suitable work.  Dr. Lee cared for claimant from December 
 
            7, 1986, through January 6, 1987 (immediately following the 
 
            claimed work injury) and on the latter date released him to 
 
            return to light-duty work.  Dr. Lee has consistently 
 
            diagnosed claimant as suffering adjustment disorder with 
 
            depressed mood.
 
            
 
                 On January 23, 1987, claimant was admitted to the 
 
            closed psychiatric unit of St. Mary's Hospital due to 
 
            repeated suicidal threats.  M. Kevin O'Connor, M.D., wrote 
 
            that claimant was diagnosed a suffering a severe character 
 
            disorder with a minor depressive component.  He writes:
 
            
 
                 The patient has a long history of occupational and 
 
                 interpersonal dysfunction dating back as far as 
 
                 1977.  Our review of these difficulties has led us 
 
                 to believe that they are fundamentally due to the 
 
                 patient's unwillingness to accept circumstances or 
 
                 job duties which are not to his liking.  He has 
 
                 repeatedly resorted to what we view as the highly 
 
                 manipulative behavior of becoming tearful, 
 
                 distressed, and suicidal in an effort to 
 
                 manipulative [sic] his superiors at work and his 
 
                 family at home into complying with his wishes.
 
            
 
            (Defendant's exhibit 6, page 2)
 
            
 
                 Claimant was evaluated in February 1989 for Social 
 
            Security purposes by Thomas J. Hughes, M.D.  Dr. Hughes 
 
            concluded that claimant suffered arteriosclerotic heart 
 
            disease, a profound history of vertigo secondary to carotid 
 
            arteriosclerosis and emotional problems which were probably 
 
            to a great extent secondary to the previous two diagnoses.
 
            
 
                 Although claimant denies any other non-work stress, 
 
            particularly finances or family problems, the medical 
 
            records establish otherwise.  P. R. Whitis, M.D., wrote in 
 
            March 1991 that claimant described a long history of marital 
 
            stress and conflict dating back to 1961 when, he alleges, 
 
            his wife was discovered having some sort of affair with the 
 
            engineer of an ocean-going ship on a return trip from India.  
 
            Claimant stated that marital problems had continued, and 
 
            that his wife at times had left him, although they were 
 
            living together in 1991.  He was in 1991 feeling afraid for 
 
            his life, stating that his family had accused him of 
 
            visiting a prostitute, had followed him, had let the air out 
 
            of his tires and might be poisoning him.
 
            
 
                 It should further be noted that claimant's 
 
            psychological problems have not abated since he left work.
 
            
 
                                conclusions of law
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 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 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                    ....
 
            
 
                    Not only must claimant prove that his work was 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 The evidence shows that Mastan Singh is subject to a 
 
            lifetime personality disorder which has led to a 
 
            deteriorating mental health status.  The deterioration is 
 
            progressive.  There can be but little doubt that Mr. Singh 
 
            reacts badly to many stressors.  And it is doubtless true 
 
            that Mr. Singh has been subjected to more stressors than 
 
            most people.  Significant nonemployment stressors include 
 
            marital and family strife and his dramatically deteriorating 
 
            physical health.
 
            
 
                 No doubt stressors perceived in the work environment 
 
            have also been aggravating factors.  Given claimant's 
 
            underlying personality disorder as disclosed by MMPI 
 
            testing, there should be little doubt but that his reported 
 
            perceptions of unfair and discriminatory treatment were 
 
            largely true as he saw them.  By the same token, there is 
 
            much reason to doubt the objectivity of those perceptions.
 
            
 
                 The weight of the evidence shows that claimant's 
 
            perception of work place stressors was an aggravating factor 
 
            in the progressive development of his mental disease.  This 
 
            constitutes causation in fact.  But, it does not prove 
 
            "causation in law."  To meet that test, claimant must show a 
 
            situation of greater dimensions than the day-to-day mental 
 
            stresses and tensions which all employees must experience.  
 
            All employment involves a degree of stress, although the 
 
            particulars vary widely from job to job.  The cumulative 
 
            tension of delicate brain surgery is unlike the sensation of 
 
            physical danger as experienced by a peace officer on the 
 
            beat or the angst shared by a psychiatrist or rape 
 
            counselor.  Almost all jobs involve interaction with people, 
 
            whether the surroundings and participants be those of field, 
 
            factory, office or shop.  In Mr. Singh's case, the heavy 
 
            manufacturing facility in which he served no doubt involves 
 
            a degree of clamor.  John Myers corroborates claimant by 
 
            noting his awareness of some name calling and practical 
 
            jokes directed at him.  Of course, it would be surprising 
 
            indeed if a 20-year veteran of the factory environment did 
 
            not experience unmannerly conduct from time to time.  It is 
 
            also probable that claimant was something of a misfit.  He 
 
            may well have been regarded as something of a complainer and 
 
            possibly a little "different" in that he is of Indian 
 
            extraction and lacks fluency in English.  It is not 
 
            inconceivable that there may have been some resentment due 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            to claimant's preferential treatment (it will be recalled 
 
            that Mr. Singh was immune from large scale layoffs despite 
 
            being a marginal employee and that he was allowed to refuse 
 
            assigned jobs, unlike others).
 
            
 
                 In any event, it remains to determine whether those 
 
            stresses are of greater dimensions than the day-to-day 
 
            mental stresses and tensions which all employees must 
 
            experience.  The evidence in this case requires that this 
 
            question be answered in the negative.  Claimant's reports of 
 
            harassment and discrimination are much less persuasive than 
 
            the combined testimony of Messrs Frommelt, Sanford, Myers, 
 
            Sercu and Brunskill.  Claimant has no doubt received some 
 
            real slights, as well as those he merely perceives.  But the 
 
            reliable evidence does not establish stresses and tensions 
 
            beyond those normally to be expected in the ordinary course 
 
            of a long-term employment relationship.  Although Dr. 
 
            Upadhyay's comparison of work stress and nonemployment life 
 
            does not directly relate to the Desgranges test discussed 
 
            supra, it will be recalled that he also felt stress was 
 
            only of an average level compared to other employment.
 
            
 
                 Because claimant has failed to prove causation in law, 
 
            the cause must be decided for defendant.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action are assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert C. Andres
 
            Attorney at Law
 
            East 4th & Sycamore
 
            P.O. Box 2634
 
            Waterloo, Iowa  50704-2634
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Building
 
            P.O. Box 239
 
            Dubuque, Iowa  52004
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2204
 
                                               Filed February 20, 1992
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MASTAN SINGH,                 :
 
                                          :
 
                 Claimant,                :         File No. 894106
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE DUBUQUE WORKS      :         D E C I S I O N
 
            OF DEERE & COMPANY,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            2204
 
            Wisconsin rule was applied in "mental/mental" stress case.  
 
            Claimant proved "causation in fact," in that perceived 
 
            supervisory harassment accelerated mental illness, but not 
 
            "causation in law," since his perceptions were not reliable 
 
            and work conditions were not of greater dimensions than the 
 
            day-to-day stresses which all employees experience.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY ALLGOOD,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 894108
 
            ROLSCREEN COMPANY,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Gary 
 
            Allgood against his employer, Rolscreen Company, and its 
 
            insurance carrier, Employers Mutual Companies, based upon an 
 
            injury that occurred on May 22, 1987.  Claimant seeks 
 
            compensation for healing period, temporary partial 
 
            disability and permanent partial disability.  The rate of 
 
            compensation is also in issue with the dispute centering 
 
            upon whether or not the employer's annual bonus should be 
 
            included as part of the rate.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on October 26, 1990.  The evidence consists of 
 
            testimony from Gary Allgood, Myron Linn, Sue Pelon and Jerry 
 
            Stump.  The evidence also contains jointly offered exhibits 
 
            1 through 16.  Included in the evidence as part of the 
 
            prehearing report is a statement of stipulated facts 
 
            submitted by the parties which addresses the rate of 
 
            compensation issue.  One additional issue in the case is 
 
            whether the disability resulting from a fall which occurred 
 
            on or about January 13, 1989 should be compensated as part 
 
            of the May 22, 1987 injury or as a separate injury.
 
            
 
                                 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.
 
            
 
                 Gary Allgood is a 46-year-old married man who dropped 
 
            out of school after completing the ninth grade at age 15.  
 
            He has no further formal education.
 
            
 
                 After leaving school, Gary entered construction work.  
 
            Most of his construction work was in the area of masonry, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            concrete work and construction of large metal buildings.
 
            
 
                 Gary commenced work for Rolscreen Company in 1978 and 
 
            has remained so employed since that date.  Different jobs he 
 
            has performed have included clipping channel, laying glass 
 
            and cutting tape.  He has been a lead worker, but was 
 
            dropped from that position when he declined to advance into 
 
            management positions.  While at Rolscreen, he cut his arm on 
 
            one occasion and, in the early 1980's, injured his back for 
 
            which he was off work for approximately one week.  He 
 
            considers his prior injuries to have been minor.  Gary 
 
            denied having any significant problems with his back which 
 
            produced any continuing symptoms until the May 22, 1987 
 
            injury.
 
            
 
                 On May 22, 1987, Gary injured his back while attempting 
 
            to pick up mastic tape which was stuck to the floor.  After 
 
            treating briefly with the employer's physician, Stuart 
 
            Kanis, M.D., without success, claimant was referred to 
 
            Ottumwa orthopaedic surgeon Donald D. Berg, M.D.  When 
 
            further conservative treatment proved unsuccessful, 
 
            diagnostic tests were conducted which showed a bulging disc 
 
            at the L5 level of claimant's spine (exhibit 4, pages 1-4).  
 
            Gary was hospitalized for traction and other conservative 
 
            treatment in August 1987.  On October 2, 1987, laminectomy 
 
            surgery with removal of the L5-S1 disc was performed by Dr. 
 
            Berg (exhibit 4, page 10).  The surgery improved Gary's 
 
            symptoms, but did not completely resolve them.  Further 
 
            diagnostic tests were performed, but Dr. Berg was reluctant 
 
            to perform additional surgery.  He reported on January 14, 
 
            1988 that claimant cannot perform the heavy physical work 
 
            which employment at Rolscreen provides (exhibit 3, page 13).
 
            
 
                 Claimant's care was transferred to Des Moines 
 
            orthopaedic surgeon William R. Boulden, M.D.  Dr. Boulden 
 
            diagnosed claimant as having degenerative disc disease, but 
 
            no recurrent disc herniation.  The diagnostic tests did show 
 
            some nerve root scarring.  Facet blocks and other 
 
            nonsurgical treatments were administered to claimant, but 
 
            were not particularly beneficial.  On May 18, 1988, Dr. 
 
            Boulden reported that claimant could return to light-duty, 
 
            part-time employment.  He completed a work restriction 
 
            evaluation which indicated that claimant could resume 
 
            working by starting at two hours per day and then increasing 
 
            the work by one hour per day each week thereafter.  On June 
 
            30, 1988, Dr. Boulden clarified that the lifting restriction 
 
            which he had recommended was that claimant should not 
 
            perform lifting with his back, but that he could lift 10-20 
 
            pounds with his arms (exhibit 5, pages 4, 9, 10 and 11).  It 
 
            is noted that the work release was for restricted part-time 
 
            work.  It was not a release to perform work substantially 
 
            similar to that which claimant had performed at the time of 
 
            injury.  It is further noted that Dr. Boulden indicated that 
 
            maximum improvement had been reached on March 8, 1988, yet 
 
            the record in this case shows a continued course of 
 
            improvement well after March 8, 1988.  That portion of Dr. 
 
            Boulden's assessment is rejected in view of the fact of the 
 
            continued subsequent improvement.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 While off work, claimant received services from 
 
            vocational consultant Barbara Chaldy.  Chaldy attempted to 
 
            enter claimant into a pain management program and similar 
 
            types of programs, but claimant uniformly resisted them.  As 
 
            early as May 10, 1988 claimant was expressing his desire to 
 
            return to work (exhibit 1, pages 17-21).  Nonetheless, 
 
            Chaldy continued to schedule evaluations well into the month 
 
            of June 1988 (exhibit 1, pages 19 and 20).  Chaldy's report 
 
            of May 26, 1988 communicates to claimant that the employer 
 
            and its insurance carrier do not feel that claimant is ready 
 
            to return to work due to Dr. Boulden's quite limiting 
 
            restrictions (exhibit 1, page 16).
 
            
 
                 Gary was provided suitable work in accordance with Dr. 
 
            Boulden's restrictions and did resume work on June 27, 1988.  
 
            Thereafter, he gradually increased his working hours until 
 
            October 2, 1988, at which time he resumed full-time 
 
            employment.  During this period of resumption of full-time 
 
            employment, Gary worked limited hours (exhibit 11).  His 
 
            total earnings during those 12 weeks were $2,391.05.  
 
            According to the stipulated weekly gross earnings for the 13 
 
            weeks prior to May 22, 1987, this represents a loss of 
 
            $2,819.47.  Sixty-six and two-thirds percent of the 
 
            difference is $1,880.59.  The weekly difference is as set 
 
            out below:
 
            
 
                 Week Ending             Temporary Partial Disability
 
            
 
                 7-16-88                         $  230.43
 
                 7-23-88                            217.28
 
                 7-30-88                            250.16
 
                 8-6-88                             250.16
 
                 8-13-88                            210.70
 
                 8-20-88                            184.39
 
                 8-27-88                            164.66
 
                 9-3-88                             105.47
 
                 9-10-88                             59.44
 
                 9-17-88                             52.86
 
                 9-24-88                            112.05
 
                 10-1-88                             42.99
 
                 Total                           $1,880.59
 
            
 
                 It is specifically found that Gary Allgood did not 
 
            reach maximum medical improvement from the May 22, 1987 
 
            injury until October 2, 1988 when he resumed full-time 
 
            employment.  Prior to October 2, 1988, he did not resume 
 
            employment which was substantially similar to that in which 
 
            he was engaged at the time of injury and he was not capable 
 
            of doing so.
 
            
 
                 Gary is now working full-time for the Rolscreen 
 
            Company.  He clips channels, a job which he is able to 
 
            perform from a seated or standing position as he desires.  
 
            He moves about to obtain materials.  Gary feels that it is 
 
            working out nicely.  His current job is classified in the 
 
            middle 3 class, while his job at the time of injury was a 
 
            high 4.  This represents a reduction in actual wages of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            approximately $.70 per hour (exhibit 12).
 
            
 
                 Rolscreen Company also has an annual bonus which is 
 
            paid near Christmas.  It is a regular, recurring bonus which 
 
            provides the employee with an additional sum based upon a 
 
            percentage of the employee's actual earnings.  The 
 
            percentage is determined by longevity with the company.  
 
            Adoption of the bonus plan was discretionary with the 
 
            employer as is its continuation.  It exists by virtue of 
 
            written policy.  The only manner in which an employee can be 
 
            denied the bonus is if the employee is fired or resigns.  
 
            The plan has been in effect since 1952.  Social Security, 
 
            state and federal income taxes are withheld from the bonus 
 
            payment.
 
            
 
                 Claimant slipped and fell on or about January 13, 1989 
 
            in the employer's parking lot.  There is no indication in 
 
            the record that the May 22, 1987 injury was a proximate 
 
            cause of that slip and fall.  It is found that it is a 
 
            separate, distinct injury from the one now under 
 
            consideration.
 
            
 
                                conclusions of law
 
            
 
                 The January 13, 1989 slip and fall is a separate injury 
 
            claim which cannot be properly addressed in this decision.  
 
            It requires a separate contested case proceeding under the 
 
            controlling agency rules.
 
            
 
                 Under Iowa Code section 85.34(1), an employee is 
 
            entitled to recover compensation for healing period until 
 
            the first of one of the three specified events occurs.  The 
 
            law in section 85.33(2) also provides temporary partial 
 
            disability.  While claimant was working under restrictions, 
 
            he was clearly within the provisions of temporary partial 
 
            disability found in section 85.33.  He is therefore entitled 
 
            to recover temporary partial disability compensation for 
 
            those 12 weeks in the total amount of $1,880.59, all as 
 
            previously listed in this decision.
 
            
 
                 The healing period ended by claimant reaching maximum 
 
            improvement when he became capable of resuming full-time 
 
            employment on October 2, 1988.  The fact that the earlier 
 
            work release was with restrictions prevents it from being a 
 
            release for substantially similar employment.
 
            
 
                 It is therefore determined that claimant is entitled to 
 
            recover healing period compensation running from July 15, 
 
            1987 through October 1, 1988, a span of 63 and 4/7 weeks, 
 
            less the 12 weeks of temporary partial disability which 
 
            leaves a balance of 51 and 4/7 weeks.  It is specifically 
 
            noted that exhibit 11 does not contain any record of 
 
            earnings for the week which began June 28, 1988.  The first 
 
            record of earnings is for what would have been the week 
 
            commencing July 9, 1988.  The full healing period 
 
            compensation is therefore deemed to have been replaced by 
 
            temporary partial disability compensation commencing July 9, 
 
            1988.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 The actual reduction in claimant's earnings as a result 
 
            of the injury is less than 10 percent.  It is also apparent, 
 
            however, that in view of his limited educational achievement 
 
            and apparent lack of proficiency for academic pursuits, his 
 
            actual loss of earnings would have been very great if this 
 
            employer had not retained him in its work force.  Gary has 
 
            not received a particularly good result from his medical 
 
            treatment.  He does not appear to have the capacity to move 
 
            into management positions.  The position which he presently 
 
            occupies is very well suited for him.  When all pertinent 
 
            factors of industrial disability are considered, it is 
 
            determined that Gary Allgood has a 20 percent permanent 
 
            partial disability as a result of the May 22, 1987 injury.
 
            
 
                 Gary's rate of compensation is the remaining issue.  It 
 
            appears as though the employees at Rolscreen Company are 
 
            paid on a two-tier basis.  They are paid weekly based upon 
 
            the number of hours of work.  The bonus is then paid 
 
            annually.  The entitlement is the controlling factor.  
 
            George M. Moore v. Posters 'N Things, Ltd., IV Iowa 
 
            Industrial Commissioner Report 252 (App. Decn., 1984).  The 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            fact that claimant could have lost the bonus if he had 
 
            chosen to resign does not, under the prior agency precedent, 
 
            make the payment one which would not be considered as part 
 
            of the earnings for purposes of determining the rate of 
 
            compensation.  The bonus is not a premium payment since that 
 
            term has been applied to refer to shift differentials.  
 
            Burmeister v. Iowa Beef Processors, Inc., II Iowa 
 
            Industrial Commissioner Report 59, 64 (App. Decn., 1982).  
 
            While the type of bonus which exists in this case appears to 
 
            be one which would not be excludable from gross earnings 
 
            under Code section 85.61(12) and one which historically 
 
            would have been considered in determining the rate of 
 
            compensation, the most recent agency precedent holds that 
 
            the Rolscreen Christmas bonus is not to be used in 
 
            determining the rate of compensation.  The undersigned is 
 
            bound by that agency precedent.  Noel v. Rolscreen Co., file 
 
            number 878911 (App. Decn., December 16, 1990).  It is noted, 
 
            however, that according to the stipulated facts which were 
 
            submitted as part of the prehearing report, the claimant's 
 
            average weekly gross earnings for the appropriate time 
 
            period was shown to be $434.21.  With claimant being married 
 
            with four exemptions, his rate of compensation should 
 
            therefore be $273.96, rather than the stipulated rate of 
 
            $271.74.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Gary 
 
            Allgood fifty-one and four-sevenths (51 4/7) weeks of 
 
            compensation for healing period at the rate of two hundred 
 
            seventy-three and 96/100 dollars ($273.96) per week 
 
            commencing July 15, 1987.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Gary Allgood 
 
            weekly compensation for temporary partial disability for 
 
            twelve (12) weeks commencing July 9, 1988 in the total 
 
            amount of one thousand eight hundred eighty and 59/100 
 
            dollars ($1,880.59).  The weekly benefit amount is payable 
 
            as previously set forth in the Findings of Fact of this 
 
            decision.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Gary Allgood 
 
            one hundred (100) weeks of compensation for permanent 
 
            partial disability at the rate of two hundred seventy-three 
 
            and 96/100 dollars ($273.96) per week commencing October 2, 
 
            1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1801.1; 5-1802; 5-1803
 
                           5-3001
 
                           Filed February 11, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GARY ALLGOOD,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 894108
 
            ROLSCREEN COMPANY,  :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1801.1; 5-1802; 5-1803; 5-3001
 
            Claimant, with a bad result from back surgery, impairment 
 
            ratings ranging from 8-15 percent, and a less than 10 
 
            percent reduction in actual earnings due exclusively to the 
 
            employer's retaining him in its work force, was awarded 20 
 
            percent permanent partial disability.
 
            Healing period benefits were terminated when claimant 
 
            resumed part-time employment with the employer.  Temporary 
 
            partial disability awarded until he resumed full-time work.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANET COPPER,
 
         
 
              Claimant,                            File No. 894110
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         KITCHENS OF SARA LEE,                     D E C I S I O N
 
         
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     APR 18 1990
 
         THE TRAVELERS COMPANIES,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Janet L. Copper, against Kitchens of Sara Lee, employer, and 
 
         Travelers Insurance Company, insurance carrier, defendants, to 
 
         recover benefits as a result of an alleged injury sustained on 
 
         April 6, 1988.  This matter came on for hearing before the deputy 
 
         industrial commissioner in Waterloo, Iowa, on March 5, 1990.  The 
 
         record consists of the testimony of the claimant and Mary Jo 
 
         Talkington; claimant's exhibits 1 through 18; and defendants' 
 
         exhibits A and B.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's injury arose out of and in the course 
 
         of her employment;
 
         
 
              2.  Whether claimant's alleged disability is causally 
 
         connected to her April 6, 1988 injury;
 
         
 
              3.  The nature and extent of claimant's disability;
 
         
 
              4.  The weekly rate if liability is found;
 
         
 
              5.  Whether claimant is an odd-lot employee;
 
         
 
              6.  Whether claimant is entitled to Iowa Code section 85.27 
 
         medical benefits; and
 
         
 
              7.  Whether claimant is entitled to Iowa Code section 85.70 
 
         benefits.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified she is a high school graduate and has 
 
         received no further formal education.  Claimant described her 
 
         work history beginning upon graduation from high school and 
 
         involved working in a pet shop at a Pamida store, working at a 
 
         health care nursing home doing laundry and housekeeping 1977 to 
 
         1979, helping raise 500 head of hogs and 70 head of cattle on her 
 
         parent's farm full-time until 1984, and chicken deboning for 
 
         Allstate Quality Foods until she became employed by defendant 
 
         employer on August 3, 1987
 
         
 
              Claimant acknowledged she had been to the doctor for back 
 
         problems in 1974 resulting from a horse accident.  She said the 
 
         injury resolved itself and went away. Claimant said she was in an 
 
         automobile accident in June 1986 resulting in an injury to the 
 
         upper part of her back, but this also resolved itself after she 
 
         used heating pads.  Claimant also related a three-wheeler 
 
         accident in 1986 injuring the upper part of her back but stated 
 
         this never interfered with her work and she lost no time.
 
         
 
              Claimant stated she had hand trouble at Allstate Quality 
 
         Foods due to the repetitive hand motions connected with the work. 
 
         Defendant employer sent her to a doctor who, in turn, sent her to 
 
         her treating doctor.  This doctor said her hands were okay. 
 
         Claimant said she began working at Sara Lee in the packaging 
 
         department, which involved lifting boxes, some overhead.  In 
 
         April 1988, claimant was working with another employee making 
 
         cinnamon rolls.  She said she was lifting boxes of rolls weighing 
 
         ten pounds on April 6, 1988 when she experienced back pain.  
 
         Claimant was then put on light duty for one week by the company 
 
         doctor. Claimant indicated she was put on four hour days 
 
         initially and this was increased until May 1988, at which time 
 
         she was back to full-time duty.  At that time, claimant was told 
 
         workers' compensation benefits would stop.
 
         
 
              Claimant worked until October 1988, at which time she was 
 
         pushing 30 pound racks of pans into the refrigerator.  She said 
 
         these racks are stacked in eight foot tall racks which hold 18 to 
 
         20 racks.  Claimant related she hurt her back again at that time. 
 
         Claimant contends the pain in October 1988 was the same type pain 
 
         she had experienced in May 1988.
 
         
 
              Claimant said she went back to work and worked five days.  
 
         The company doctor, Roswell M. Johnston, D O., sent weight 
 
         restrictions for claimant on October 28, 1988 (Defendants' 
 
         Exhibit A, part 26)  Claimant said she was terminated November 2, 
 
         1988 by defendant employer because the employer contended she had 
 
         falsified her job application.  She has not worked for defendant 
 
         employer since.
 
         
 
              Claimant related she first knew she had spondylolisthesis 
 
         from Rodney E. Johnson, M.D., in April 1988.
 
         
 
              Claimant said she tried to find a job after termination but 
 
         it was hard due to her back. She testified she called vocational 
 
         rehabilitation and was referred to the Des Moines office.  She 
 
         said the recommendation was not to go to school due to the 
 
         results of her school testing. They suggested she find a job 
 
         working with people.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant related she currently cooks for twelve people in a 
 
         small home, working five hours per night.  She said she started 
 
         at $3.75 per hour and now makes $4.40 per hour.  Claimant said 
 
         she was making $6.07 per hour on April 6, 1988, the date of her 
 
         injury, and was making $6.79 when she was terminated by defendant 
 
         employer.  Claimant said she has not worked at any other jobs 
 
         since obtaining this position but she continues to look for a job 
 
         that pays more.  She states that $5.00 plus per hour is the 
 
         maximum she could make in her current job.
 
         
 
              Claimant said she currently lives with her parents on their 
 
         farm but doesn't help with the farming. She stated there are no 
 
         horses on the farm and she doesn't ride anymore.  Claimant was 
 
         referred to Dr. Breitbach's records concerning a July 1988 
 
         tailbone treatment.  Claimant said she was riding a horse then 
 
         and stopped riding shortly thereafter.  She related she sold her 
 
         horse in July 1988.  Claimant contends she rode the horse off and 
 
         on before July 1988, approximately once a month but it could have 
 
         been more often.  Claimant related that when riding the horse, it 
 
         did not cause her back to hurt.  Claimant said she rode a horse 
 
         as a child and actually most of her life.
 
         
 
              Claimant acknowledged she has not missed work since May 1988 
 
         due to the April 6, 1988 back injury.  She said any work she 
 
         missed is a result of other reasons.
 
         
 
              On cross-examination, claimant was asked about several 
 
         medical records referring to her back problems from 1974 to 1978. 
 
         Some of the dates claimant did not remember or forgot to mention. 
 
         Several of them involved a horse.
 
         
 
              Claimant acknowledged she did not report prior back problems 
 
         in her Sara Lee employment application.  She said her back was 
 
         not hurting at the time.  Claimant said she doesn't specifically 
 
         remember filling out the medical report section of her 
 
         application, but she does acknowledge signing the application 
 
         based on the fact that the contents are true and correct to the 
 
         best of her knowledge.
 
         
 
              Mary Jo Talkington, assistant personnel manager with 
 
         defendant employer three years in June 1990, testified that it is 
 
         important for a person to disclose prior back problems because 
 
         the work at Sara Lee is physical work requiring a lot of standing 
 
         on concrete floors, bending, twisting and repetitive motions.  
 
         She indicated that if claimant's prior medical history concerning 
 
         her back was disclosed, claimant would have been sent for a 
 
         physical examination with a back specialist.  Since claimant only 
 
         indicated prior hand problems, she was not sent for a back 
 
         examination.
 
         
 
              On June 8, 1988, Rodney E. Johnson, M.D., wrote:
 
         
 
                   This was patient [who] was seen for complaint of low 
 
              back pain that she has experienced intermittently since she 
 
              was 16 years old.  Most recent episode was of gradual onset 
 
              and felt to be releted [sic] to her work activity.  The 
 
              spondylolisthesis that is mentioned is a pre-existing defect 
 
              and is not necessarily related to employement [sic] at Sara 
 
              Lee.  I would expect her to return to functional activity 
 
              level that she was at prior to the onset of her of [sic] 
 
              recent complaints.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Defendants' Exhibit A, part 19)
 
         
 
              Claimant's medical records on July 23, 1988 reflect: 
 
         "Tailbone is still sore, tried riding a horose [sic] & couldn't 
 
         ride.  Low back is sore."  (Def. Ex. 8, pt. 22)
 
         
 
              On October 2, 1988, Dr. Johnson felt claimant's mechanical 
 
         low back pain was related to her work activities and not to the 
 
         preexisting spondylolisthesis.  He also wrote that "she would not 
 
         have any permanent impairment because of her injury."  (Def. Ex. 
 
         A, pt. 23)
 
         
 
              On October 28, 1988, Roswell M. Johnston, D.O., wrote:
 
         
 
                  Clearly she has a spondylolysis.  She has had a work 
 
              related aggravation of her symptoms back in the April and 
 
              June time frame.  Presently she is asymptomatic but she will 
 
              have to be on a permanent restriction involving no pushing 
 
              or pulling or heavy lifting or straining of her back.
 
         
 
         (Def. Ex. A, p. 26)
 
         
 
              On March 14, 1989, Dr. Johnston's notes reflect:
 
         
 
                  Janet comes in because she is concerned about her back. 
 
              She has had a couple of episodes,.particularly in the past 
 
              week where she has slipped and fallen on the ice and now her 
 
              back is hurting her again..  It is localized right across 
 
              the lumbosacral region and radiates off the right side.  She 
 
              has been turned down for disability benefits because she is 
 
              still able to do something functionally with gainful 
 
              employment though she will be restricted from any repetitive 
 
              heavy lifting or straining on her back.
 
         
 
         (Claimant's Exhibit 17, page 8)
 
         
 
              Notes of David S. Schweizer, M.D., reflect that he has 
 
         provided services for claimant since 1962 when she was five years 
 
         old.  His records show that claimant's last visit to him prior to 
 
         her July 1988 visit was over ten years previously.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on April 6, 1988 which arose 
 
         out of and in the course of her employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 6, 1988 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A  possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732  (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with  approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 and 
 
         cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W. 2d 251 (1963) 
 
         Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 
 
         613, 106 N.W.2d 591.  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W. 2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         
 
              Claimant has a history of back problems, but the record of 
 
         her long-time doctor, David Schweizer, indicates it has been over 
 
         ten years since she had back complaints.  Claimant has had a 
 
         horse for many years and appears to have done considerable 
 
         horseback riding.  On April 6, 1988, claimant was lifting boxes 
 
         of rolls at work and developed a low back pain.  It is undisputed 
 
         that claimant has a spondylolysis and spondylolisthesis condition 
 
         which is preexisting her April 6, 1988 injury and is not caused 
 
         by the injury.  Dr. Johnson said claimant had spondylolisthesis 
 
         and Dr. Johnston said "claimant clearly has a spondylolysis."  
 
         The greater weight of medical evidence shows claimant's 
 
         preexisting condition was aggravated and lightened by her April 
 
         6, 1988 injury.  There is no medical evidence which concludes any 
 
         permanent impairment to claimant from this April 6, 1988 injury.  
 
         Claimant basically has not lost any time from work prior to her 
 
         termination by defendant employer in November 1988.  Claimant 
 
         contends the weight restrictions placed on claimant shows a 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         permanent disability exists.  It is true an impairment rating by 
 
         a doctor is not necessary to conclude a permanent disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The undersigned finds claimant incurred a temporary injury 
 
         on April 6, 1988 which arose out of and in the course of her 
 
         employment.
 
         
 
              Claimant contends she did not know of her preexisting 
 
         condition prior to receiving medical treatment after her April 6, 
 
         1988 injury.  The fact is she had this condition and the 
 
         permanent restrictions involving no pushing, pulling, heavy 
 
         lifting or straining of her back are restrictions that could be 
 
         placed on anyone with a spondylolysis or spondylolisthesis 
 
         condition.  In fact, it would be advisable, if a person were 
 
         aware of their condition, to impose such restrictions on 
 
         themselves.  Claimant is not currently suffering from a condition 
 
         resulting from her April 6, 1988 injury.  Basically, the 
 
         restrictions are suggested to prevent another injury or 
 
         aggravation due to claimant's congenital condition.  It also 
 
         appears claimant has been seen by Dr. Johnston on March 14, 1989 
 
         concerning two slip and falls on ice the prior week.  The doctor 
 
         indicated claimant's back was hurting again.
 
         
 
              Claimant contends she will not be able to find work like she 
 
         had at the time of her injury because of her back condition.  
 
         This is very true in most circumstances, but had she fully 
 
         disclosed her back condition to defendant employer prior to 
 
         employment, she most likely would not have had the job in the 
 
         first place.  The undersigned is not finding that claimant 
 
         materially falsified her application for employment as the 
 
         evidence is confusing as to the nature of the application and 
 
         whether a doctor filled out part of it.  Claimant did sign the 
 
         application attesting to the truth of the contents.  The 
 
         undersigned believes claimant was not suffering from any back 
 
         pains at the time of filling out the application and felt her 
 
         prior back problems were insignificant as to whether she should 
 
         work at Sara Lee.
 
         
 
              The undersigned finds claimant has no permanent impairment 
 
         as opined by Dr. Johnston.  The undersigned finds claimant does 
 
         not have an industrial disability.
 
         
 
              Claimant incurred various medical bills during her treatment 
 
         resulting from her April 6, 1988 work injury.  The temporary 
 
         aggravation caused the claimant to incur those expenses and 
 
         defendants shall pay all the medical.  Defendants denied all 
 
         liability and, therefore, they waive the right to choose 
 
         claimant's medical care.
 
         
 
              All the other issues are moot in light of the above and will 
 
         not be further discussed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant incurred a temporary low back injury while 
 
         lifting a box at her place of employment.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              2.  Claimant has a preexisting spondylolysis and 
 
         spondylolisthesis condition which was temporarily aggravated and 
 
         lighted up by her work injury on April 6, 1988.
 
         
 
              3.  Claimant has no permanent impairment as a result of her 
 
         work-related April 6, 1988 injury.
 
         
 
              4.  Claimant's weight lifting, pulling and pushing 
 
         restrictions are not materially or solely related to her April 6, 
 
         1988 injury, but are as much related to her congenital 
 
         preexisting spondylolysis and spondylolisthesis condition.
 
         
 
              5.  Claimant lost no time from work nor incurred any healing 
 
         period as a result of her April 6, 1988 work injury.
 
         
 
              6.  Claimant incurred medical bills as a result of her 
 
         temporary April 6, 1988 work injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's temporary low back injury arose out of and in the 
 
         course of her employment on April 6, 1988.
 
         
 
              Claimant's work injury on April 6, 1988 temporarily caused 
 
         an aggravation and lightening up of claimant's preexisting 
 
         spondylolysis and spondylolisthesis condition.
 
         
 
              Claimant's.work injury on April 6, 1988 caused no permanent 
 
         impairment or permanent disability to claimant.
 
         
 
              Claimant's medical bills were caused by claimant's temporary 
 
         work injury on April 6, 1988.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay all of claimant's medical bills.
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That claimant shall pay the costs of this action, pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 18th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr W H Gilliam
 
         Attorney at Law
 
         722 Water Street Crt
 
         2nd Flr
 
         Waterloo IA  50703
 
         
 
         Mr Mark A Wilson
 
         Attorney at Law
 
         30 4th St NW
 
         P 0 Box 1953
 
         Mason City IA  50401
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-2206; 5-2505; 5-1800
 
                                            Filed April 18, 1990
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JANET COPPER,
 
         
 
              Claimant,
 
                                                   File No. 894110
 
         vs.
 
         
 
         KITCHENS OF SARA LEE,                  A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         THE TRAVELERS COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1800
 
         
 
              Found claimant incurred a temporary low back injury 
 
         resulting in no loss of work time, and no permanent impairment or 
 
         disability
 
         
 
         5-2206
 
         
 
              Found claimant had a preexisting spondylolysis and 
 
         spondylolisthesis condition which was temporarily aggravated by 
 
         her work injury.
 
         
 
         5-2206
 
         
 
              Claimant's restrictions were not related materially or 
 
         solely to her temporary work injury, but related as much to her 
 
         preexisting condition.
 
         
 
         5-2505
 
         
 
              Awarded claimant only her medical bills.  No other benefits 
 
         awarded.