before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                         :
 
         JAMES JONES,                    :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 897423
 
         PRAIRIE FARMS DAIRY, INC.,      :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         NATIONAL UNION FIRE             :
 
         INSURANCE COMPANY,              :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         April 29, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arvid D. Oliver
 
         Attorney at Law
 
         2635 Hubbell Ave.
 
         Des Moines, Iowa 50317
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 21, 1992
 
                                          BYRON K. ORTON
 
                                          EAN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            JAMES JONES,                    :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 897423
 
            PRAIRIE FARMS DAIRY, INC.,      :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            NATIONAL UNION FIRE             :
 
            INSURANCE COMPANY,              :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed April 29, 
 
            1992.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES JONES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 897423
 
            PRAIRIE FARMS DAIRY, INC.,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            On March 1, 1989, James Jones, (claimant) filed a petition 
 
            for arbitration as a result of an injury to claimant's head 
 
            occurring on June 3, 1988.  Prairie Farms Dairy (Prairie 
 
            Farms) was identified as employer and National Union Fire 
 
            Insurance Company (NUFIC) was identified as the workers 
 
            compensation insurer for Prairie Farms (collectively 
 
            defendants).  On July 30, 1991 these matters came on for 
 
            hearing in Des Moines, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by his counsel Arvid 
 
            Oliver of Des Moines, Iowa and Prairie Farms and NUFIC by 
 
            their counsel Dorothy Kelly of Des Moines, Iowa.  
 
            The record in this proceeding consisted of the following:
 
            1.  The live testimony of the claimant, Deborah Jones, 
 
            Charles Allen, Tom Thuman, Patricia Conway.  
 
            2.  Joint exhibits 1-20
 
            3.  Claimant's exhibits A-GG.
 
            4.  Defendants' exhibit I, II, VI.
 
            preliminary matters
 
            On July 31, 1991, after the record was closed, the Division 
 
            received a letter from Dan L. Keyser, M.D., from the 
 
            Department of Neurology at Iowa City.  This information, 
 
            while received in the file, was not considered as part of 
 
            the evidence in this case since it was not offered into 
 
            evidence at the time of the hearing.  The record was closed 
 
            at the conclusion of the hearing pursuant to rule 343 IAC 
 
            4.31.
 
            stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            b.  The type of permanent disability, if the injury is found 
 
            to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            c.  The rate of compensation, in the event of an award, is 
 
            $302.74 per week.  Claimant is married and has no dependent 
 
            children.  He is entitled to two exemptions.
 
            d.  The parties have agreed that if the providers of the 
 
            medical services in this matter were called to testify they 
 
            would state that the fees for services rendered were 
 
            reasonable and defendants would not offer contrary evidence.
 
            e.  Defendants have paid 22 weeks of workers' compensation 
 
            benefits to claimant at the rate of $302.74 per week prior 
 
            to hearing.
 
            f.  Claimant's claim for permanency has been bifurcated.
 
            g.  The parties have stipulated to the costs of this action.
 
            Issues
 
The issues for resolution are as follows:
 
            1.  Whether claimant sustained an injury on June 3, 1988, 
 
            which arose out of and in the course of his employment with 
 
            Prairie Farms.
 
            2.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed disability and the nature 
 
            and extent of any entitlement to benefits, if any.
 
            3.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
4.  Whether defendants are entitled to credit.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            After considering all of the evidence and the arguments of 
 
            counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            1.  The evidence compels a finding that claimant is not 
 
            credible.  Inconsistencies in the documentary evidence and 
 
            the testimony given in this matter supports this conclusion.  
 
            2.  At the time of the hearing James Jones was 52 years old.  
 
            At the time of the injury, claimant was 49 years old.  
 
            Claimant's educational background is cloudy.  Claimant 
 
            apparently began school in Alabama.  The evidence is 
 
            inconclusive as to whether claimant ever finished high 
 
            school or obtained a GED.(1)  Likewise the evidence is 
 
            inconclusive on the question of whether claimant attended 
 
            college and obtained sometime thereafter a doctor of 
 
            divinity degree.(2)  
 
            3.  Claimant's social history is equally confused.  Claimant 
 
            indicated in various histories and at the time of the 
 
            hearing that he grew up in an environment where smoking and 
 
            drinking were not tolerated.  Claimant had indicated that 
 
            his father was dead in one history from complications of 
 
            alcohol abuse.  In another history, claimant indicated that 
 
            his father was alive.  Claimant has been married three 
 
            times.  He is divorced from his first wife.  Claimant had 
 
            six or seven children by his first wife, Dolly Jones.  His 
 
            second wife died.  By the time claimant was married for a 
 
            third time, claimant had incurred substantial personal 
 
            indebtedness individually and with his church in Salt Lake 
 
            City.(3)  Claimant's financial problems have not abated.  He 
 
            is still paying creditors from Utah on a monthly basis.    
 
            Claimant has an arrest and conviction record beginning in 
 
            1972 and ending in 1981.  Additionally, claimant was 
 
            involved in litigation regarding unpaid wages and child 
 
            support.(4)  The dispute with claimant's first wife was 
 
            acrimonious.  Finally, when claimant began his course of 
 
            treatment at the University of Iowa he was involved in 
 
            litigation regarding back pay that was eventually resolved 
 
            in his favor with a settlement of $52,500.  
 
            4.  Claimant has preexisting health problems.  While 
 
            claimant was employed at Roberts Dairy in Lincoln Nebraska, 
 
            he sustained a work injury to his back.  Claimant recovered 
 
            a lump sum settlement in the approximate amount of $13,000.  
 
            Claimant has had reactions to toxic chemicals.  These 
 
            exposures have caused sore throat, itchy eyes, dizziness, 
 
            occasional headaches and weight loss.  Claimant was treated 
 
            for the exposures.  Claimant has microcytic hyperchromic 
 
            anemia and he has had gastrointestinal complaints.  Claimant 
 
            also has presbyopia and myopic astigmatism in the left eye 
 
            and with asymmetric optic nerves with normal intraocular 
 
            pressure.  Claimant was advised to use corrected glasses for 
 
            near vision and was not wearing glasses at the time of the 
 
            hearing. 
 
            5.  Since high school, claimant has had a checkered 
 
            employment history.  He has been employed from time-to-time 
 
            as a pastor, and a dairy industry worker.  Claimant has had 
 
            interests in Big Foot Services, a pest control and a 
 
            janitorial service(5).  Claimant has also worked in 
 
            construction, as a cab driver, and as an aide in an 
 
            institution for mentally retarded and brain damaged 
 
            (1).  Claimant indicated that he attended elementary and high 
 
            school in Alabama, however claimant cannot remember what 
 
            schools he attended nor did he have any record of completing 
 
            the course of study at his high school.  At the time of the 
 
            hearing, claimant testified that he graduated from high 
 
            school.  However, in some of the medical histories given, 
 
            claimant indicated that he had a GED.  In other histories 
 
            given he indicated that he had graduated from high school.  
 
            Prior employment applications indicated that claimant 
 
            attended Sun Town High School until the ninth grade.  
 
            However, he also included a graduation date of 1955.
 
            (2).  In the medical histories claimant gave to his doctors, 
 
            he indicated that he had attended a pastoral college and 
 
            divinity school to obtain his pastoral credentials.  He also 
 
            indicated that he had obtained a philosophy degree and a 
 
            doctor of divinity degree through the mail.  Claimant has 
 
            also indicated that the church organization he serves 
 
            conferred a doctor of divinity on him.  However, claimant 
 
            could not remember the institution or organization that had 
 
            conferred the doctor of divinity degree nor could he 
 
            describe the courses he had taken while in school at the 
 
            time of the hearing.
 
            (3).  Claimant owed between $20,000 and $30,000 to creditors 
 
            as a result of his living and working in Salt Lake City.  
 
            Claimant owed $2,341.87 for the burial of his second wife.  
 
            He owed $2500 in back rent.  Claimant had an outstanding 
 
            balance of $9,549.54 unpaid with a department store in Salt 
 
            Lake City.  Claimant and his sons also owed $15,000 in 
 
            unpaid wages for a construction company they operated in 
 
            Salt Lake City.  Additionally, claimant's Salt Lake City 
 
            church was in arrears on its obligations.  As a result of 
 
            these financial difficulties, claimant's church sent a 
 
            letter to its creditors on February 6, 1986, regarding the 
 
            church's inability to pay its bills.  Claimant indicated 
 
            that he would make suitable arrangements with the church's 
 
            creditors to pay them.
 
            (4).  While claimant was in Salt Lake City, he experienced 
 
            difficulty with the State of Utah Revenue officials 
 
            regarding wage claims that were due in owing employees of 
 
            Bigfoot Services, Inc. and Jones and Jones Construction 
 
            Company.  The dispute over unpaid wages was a litigated 
 
            claim that resulted in a judgment against claimant.  
 
            Additionally, claimant was in arrears on his child support 
 
            and collection actions had been commenced by his former 
 
            wife.  Claimant had ongoing litigation with his former wife 
 
            Dollie Jones regarding child support and disability 
 
            payments.
 
            (5).  Claimant filled out an application to transact business 
 
            under an assumed name, Big Foot Services, in Utah in April 
 
            of 1988.  Big Foot Services was a business that claimant 
 
            pursued with two of his sons, Lorenzo Jones and James Jones, 
 
            III.  A balance sheet from Big Foot Services as of December 
 
            31, 1985, indicated that Big Foot had paid salaries to James 
 
            Jones and Lorenzo Jones as partners of this enterprise.
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            individuals.  
 
            6.  As a dairy worker, claimant began his career in Alabama.  
 
            Claimant's began his employment with Prairie Farms Dairy in 
 
            Des Moines on July 16, 1982.  Claimant was laid off in April 
 
            of 1983.  Thereafter, claimant moved to Salt Lake City.  
 
            While there, claimant established a congregation for his 
 
            church and Big Foot Services.  Claimant returned to Des 
 
            Moines to work for Prairie Farms in 1987.  Claimant's job at 
 
            Prairie Farms was to run a gallon filler.  He was required 
 
            to put caps into the cap feeder and release jams. 
 
            7.  When claimant returned to Des Moines, he was asked to 
 
            pastor a new church in Mason City.  Claimant moved to Mason 
 
            City and maintained a home in Des Moines.  Claimant 
 
            established a congregation in Mason City for the Zion Temple 
 
            Church.  The church provided claimant with living expenses 
 
            and a 1975 Jaguar.  When claimant first moved to Mason City, 
 
            the church also owned a van that was available for his use.  
 
            The congregation owns a building in Mason City.  Claimant 
 
            signed the mortgage for the church in his capacity as pastor 
 
            of the congregation.  A note was due on the property in 
 
            December of 1991.
 
            8.   Claimant has given varying accounts of his head injury 
 
            on June 3, 1988(6).  The account given on June 24, 1988 will 
 
            be adopted as the most accurate.  Claimant went to the 
 
            emergency room at Des Moines General and reported that on 
 
            June 3, 1988 he was in the process of unjamming a gallon 
 
            filler machine, and raised up under a metal bar hitting the 
 
            top of his head.  At the time claimant clocked out, he 
 
            advised his supervisor that he had bumped his head while 
 
            working.  The supervisor examined claimant's head and could 
 
            detect no blood or a bump.  There was no evidence of a 
 
            laceration or intermittent bleeding or evidence of a healed 
 
            wound when claimant was examined at Des Moines General.  No 
 
            one saw claimant strike his head.  No coworkers advised the 
 
            supervisor that claimant was unconscious or appeared dazed 
 
            at the time that he bumped his head.  Additionally, claimant 
 
            made no indication to the supervisor that he was dazed or 
 
            was suffering from head pain or blurred vision.
 
            9.  As a rule when an employee is injured on the job at 
 
            Prairie Farms, the employee is sent to the emergency room at 
 
 
 
 
 
 
 
            (6).  In some versions he indicated that he had struck his 
 
            head and suffered a laceration which bled at the time of the 
 
            injury and then intermittently for two weeks (Jt Ex. 1, 
 
            p.4).  Even though claimant's head was bleeding, he did not 
 
            go to the hospital for care.  He gave other descriptions of 
 
            the injury where he was nearly unconscious from the blow to 
 
            his head.  On other occasions he says he saw stars from the 
 
            blow to his head.  He described the item he hit as a track, 
 
            a metal hook on an overhead track, a bolt, and a piece of 
 
            metal.  At other times he indicated that a piece of metal 
 
            hit him.  He indicated that he was standing bent over and 
 
            then quickly jumped to an upright position and hit the top 
 
            of his head.  Other times he indicated that he stood up 
 
            suddenly and struck his head.  On some occasions he 
 
            developed nausea and other occasions he did not.
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Mercy Hospital.  The supervisor in charge of the area, is 
 
            the only authorized individual to direct employees to 
 
            medical care in the event of a work injury.  When claimant 
 
            called in sick around June 24, 1988, he did not say that he 
 
            was suffering the ill effects of the injury of June 3, 1988 
 
            or that he needed to see the company doctor.  Claimant never 
 
            obtained authorization for his visit to the Des Moines 
 
            General emergency room after the incident on June 3, 1988.  
 
            Moreover, claimant did not obtain authorization to seek 
 
            medical assistance in Iowa City, or at Mayo Clinic.
 
            10.  On June 27, 1988, claimant was seen by Dr. Washburn in 
 
            the Park Clinic in Mason City.  Claimant gave a history of 
 
            his injury.  Since that incident, claimant complained of 
 
            headaches, blurred vision and some numbness of the left arm 
 
            and a little bit of weakness on the left side with pain down 
 
            the left arm.  He has also noted some slowness in thinking.  
 
            Dr. Washburn apparently felt after examination that claimant 
 
            was suffering from post-concussion syndrome.  On June 28, 
 
            1988, claimant had CT examination which was negative for 
 
            mass lesions or enhancing lesions.  There was no evidence of 
 
            intracranial hemorrhage and the skull was intact.  There was 
 
            nothing to suggest a subdural hematoma.  
 
            11.  On July 22, 1988, claimant was evaluated by Sant M.S. 
 
            Hayreh, M.D.  Claimant indicated at the time that his main 
 
            problem was poor memory, headaches and neck pain, left arm 
 
            and leg pain since his June 3, 1988 injury.  He also noted 
 
            that his pep and energy level was low and he felt tired and 
 
            exhausted most of the time.  Claimant was moody but without 
 
            suicidal ideation.  Claimant reported to Dr. Hayreh that his 
 
            medical history was insignificant for any major medical 
 
            problem except a back surgery in 1981.  On examination, Dr. 
 
            Hayreh found that it was remarkable for a flat affect.  The 
 
            neurological examination revealed that claimant was alert 
 
            and awake with fairly good recent and remote memory.  
 
            Claimant had problems with simple subtractions even though 
 
            he had a GED.  His right and left orientation was intact, 
 
            his speech was normal and his cranial nerve examination 
 
            showed visual acuity that needed correction.  Upon 
 
            examination on the left side, claimant reported subjective 
 
            dulling but was otherwise normal.  There was no atrophy and 
 
            claimant had full range of motion.  The lower extremity 
 
            examination was normal with straight leg raising negative 
 
            bilaterally.  Claimant's gait was normal along with the 
 
            associated swing in both upper extremities.    Claimant's 
 
            neuropsychological testing was highly inconsistent.  These 
 
            findings were non-conclusive and there is a significant 
 
            degree of underlying secondary gain.  In conclusion, Dr. 
 
            Hayreh thought that claimant had the following problems:  
 
            (1) post traumatic syndrome with headache and memory loss 
 
            and a significant degree of underlying secondary gain with 
 
            depressive symptoms; (2) musculoskeletal type of neck pain; 
 
            (3) non-specific aches and pains in different parts of his 
 
            body without any objective findings that are functional in 
 
            nature; (4) microcytic hyperchromic anemia for which 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant needs treatment; (5) depressive neurosis.  At that 
 
            point, Dr. Hayreh released claimant to see him on an as 
 
            needed basis.
 
            12.  On August 18, 1988, claimant had a psychological 
 
            evaluation by Dr. Peltan in Mason City.  Claimant gave Dr. 
 
            Peltan an incomplete and inconsistent social history.  Dr. 
 
            Peltan administered a series of tests to claimant to measure 
 
            neuropsychological functions.(Jt. Ex. 4)  Dr. Peltan 
 
            concluded that claimant's neurophysiological findings were 
 
            highly inconsistent.  Claimant's tests varied so widely that 
 
            it was difficult to determine whether claimant had indeed 
 
            suffered a closed head injury.  Furthermore, there is no 
 
            consistent data to indicate the locus of a lesion as 
 
            expected in an individual with a closed head injury.  His 
 
            forgetfulness and other problems might be understood best in 
 
            terms of his personality structure and perhaps more 
 
            importantly in terms of the secondary gain that his injury 
 
            and supposed deficit might provide him.  Dr. Peltan 
 
            concluded, within a reasonable degree of psychological 
 
            certainty, that the tests when taken as a whole would not 
 
            show that claimant suffered any kind of brain trauma.  This 
 
            conclusion was due to the lack of consistency between the 
 
            testing.  If the test results were accurate, claimant would 
 
            be fairly severely impaired requiring a good deal of 
 
            supervision of his every day activities.  Claimant clearly 
 
            did not require a good deal of supervision.
 
            13.  Claimant was next seen at the University of Iowa on 
 
            September 16, 1988.  He went the University Hospitals on his 
 
            own referral.  Claimant was seen by Dr. William Yates, a 
 
            psychiatrist.  Dr. Yates diagnosed claimant as having 
 
            atypical depression.  The diagnosis was confirmed by D. 
 
            Langbehn, M.D., and Neill Graff-Radford, M.D., who evaluated 
 
            claimant in order to rule out major depressive disorder.  
 
            They found that there was no obvious cognitive deficit.  
 
            14.  In September of 1988, claimant participated in two 
 
            hearings regarding a back pay dispute with Prairie Farms.  
 
            At the time of the hearing claimant had no problem with his 
 
            memory.  He was able to recite dates and contacts precisely 
 
            during the course of that hearing.  Claimant negotiated a 
 
            very favorable settlement in September where he recovered 
 
            $52,500, and health and welfare benefits until he began to 
 
            draw his pension.  Additionally, he agreed to a paid-up 
 
            pension and then he voluntarily resigned from Prairie Farms 
 
            effective June 6, 1989.  He was on a voluntary leave of 
 
            absence in the interim.  Claimant's current benefits include 
 
            health insurance and a monthly payment from the pension 
 
            fund.  During the course of these proceedings claimant was 
 
            under the care of Dr. Peltan and was beginning his treatment 
 
            at the University of Iowa for the claimed memory loss and 
 
            other conditions relating to the injury of June 3, 1988.  
 
            Claimant did not disclose that he was involved with this 
 
            litigation to these doctors.
 
            15.  Claimant returned to the University of Iowa and saw Dr. 
 
            Yates on September 29, 1988.  Dr. Yates concluded that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant showed mild to moderate deficits in the acquisition 
 
            and recall of novel information and speed reading ability in 
 
            the context of relatively average aspects of intellect, 
 
            visiospacial abilities and speech and language.  His 
 
            deficits on tests of memory, processing of information and 
 
            diminished effort were consistent with cognitive impairment 
 
            seen secondary to depressive episodes as acknowledged by the 
 
            patient on a self-report inventory.  Claimant was advised 
 
            for the need of a full neurophysiological examination in the 
 
            event of litigation.
 
            16.  On November 3, 1988, claimant was administered an 
 
            Minnesota Multiphasic Personality Inventory (MMPI).  The 
 
            results were invalid.  Claimant's response style was 
 
            suggestive of a calculated effort to endorse multiple and 
 
            severe psychological and physical symptoms of distress.
 
            17.  On November 4, 1988, Dr. Yates directed a letter to 
 
            claimant documenting his current condition for insurance and 
 
            work purposes.  Dr. Yates gave a brief summary of claimant's 
 
            condition and symptoms.  Dr. Yates indicated that the 
 
            symptoms presented following a work-related head injury.  He 
 
            went on to indicate that, although claimant's symptoms were 
 
            not classical for depression, a working diagnosis to rule 
 
            out depression was made and medication was begun.  Dr. Yates 
 
            concluded his letter by indicating that claimant was unable 
 
            to resume his previous employment because of memory and 
 
            other cognitive impairments demonstrated by 
 
            neuropsychological testing which may be due to depression.
 
            18.  Claimant gave incomplete histories to the doctors who 
 
            examined him at the University of Iowa.  When Dr. Yates 
 
            first saw claimant, he did not have available to him past 
 
            medical records as to the nature of his complaints or 
 
            records from Dr. Hayreh, M.D., or Mark R. Peltan, Ph.D..  
 
            There was no social history taken from claimant.  Dr. Yates 
 
            indicated during his deposition that if claimant was 
 
            involved in litigation he would have a poor response to 
 
            treatment for major depressive disorder.  Dr. Yates also 
 
            indicated that social factors can influence the onset of a 
 
            major depressive episode.  These can include interpersonal 
 
            difficulties with significant family members, changes in 
 
            work, occupational status, changes in financial situation, 
 
            or death, sickness or injury to close family members.  These 
 
            factors would also include divorce and child custody issues.  
 
            Dr. Yates was not aware that claimant was undergoing any 
 
            change in job status or having domestic problems in 
 
            connection with his child support payments at the time he 
 
            was under evaluation by Dr. Yates.  Dr. Yates did not know 
 
            that in June of 1989 claimant was looking forward to 
 
            retirement from work.  Dr. Yates was also not aware that 
 
            claimant was involved in a back pay dispute with Prairie 
 
            Farms at the time of his treatment.  Nor did he know that 
 
            claimant was having financial problems with creditors from 
 
            Utah.  Nor was Dr. Yates aware that claimant had a criminal 
 
            record.  If Dr. Yates had been aware of those changes, it 
 
            could affect his impression of claimant's condition.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            However, it did not.  Dr. Yates also indicated that it is 
 
            possible for an individual to develop a major depressive 
 
            disorder without having any complaints of any type of head 
 
            trauma.  Additionally, Dr. Yates could not explain the 
 
            inconsistencies in claimant's neurobehavior evaluation tests 
 
            regarding problem solving tasks and other neuropsychological 
 
            testing.  
 
            19.  A variety of tests were run on claimant after his 
 
            initial examination by various departments at the University 
 
            Of Iowa and all of the tests, MRI scans, CT scans, EMG 
 
            studies, and nerve conduction velocity studies were 
 
            negative.  This included the cervical spine MRI.  
 
            20.  On December 19, 1988, Dr. Yates wrote to Renee Kidman 
 
            and indicated that the exact cause of claimant's depression 
 
            was unknown.  Dr. Yates reported that a major depressive 
 
            disorder can result from head trauma, although a normal MRI 
 
            makes this less likely.  Claimant had a normal MRI in this 
 
            case.
 
            21.  On January 4, 1989, Dr. Yates again directed a letter 
 
            to claimant regarding his condition.  The letter indicates 
 
            that claimant had been seen three times by the Psychiatry 
 
            Clinic in Iowa City.  Dr. Yates summarized a report from 
 
            David A. Kent, M.D., which indicated there is reasonable 
 
            medical certainty that claimant's his closed head trauma is 
 
            somehow associated with his current symptomatology.  
 
            Claimant was given no return to work date in this report.
 
            22.  Thereafter, claimant was seen on a regular basis by Dr. 
 
            Yates and others at the University of Iowa for depression.  
 
            Dr. Yates continually changed his mind regarding the cause 
 
            of claimant's depressive disorder.  In March of 1989, he 
 
            outlined claimant's symptoms as including chronic headaches 
 
            with depression, subjective complaints of difficulty with 
 
            his memory and thinking and suicidal ideation.  Dr. Yates 
 
            went on to report that claimant's symptoms have been 
 
            somewhat atypical of depression, but the working diagnosis 
 
            for claimant's condition was now major depressive disorder.  
 
            He indicated that, in view of the time sequence of the onset 
 
            of symptoms, he felt that his head injury was a contributing 
 
            cause of his current psychiatric condition.  He went on to 
 
            say that he thought claimant should be given some 
 
            consideration for appropriate workers' compensation.  In 
 
            July of 1989, after claimant had been hospitalized for 
 
            depression and after he had generated remarkably 
 
            inconsistent results on neuropsychological tests before and 
 
            during his hospitalization(7), Dr. Yates indicated that 
 
            claimant has a depressive disorder of unclear etiology.  
 
            Claimant had no neurological deficits that could be 
 
            documented.  With these results, Dr. Yates indicated that it 
 
            would be extremely difficult to rule out malingering or 
 
            factitious disorder in connection with claimant's complaints 
 
            regarding his depressive disorder.(8)  Dr. Yates confirmed 
 
            this conclusion during his deposition.
 
            23.  On March 17, 1989, claimant filled out an application 
 
            for disability insurance benefits with Social Security 
 
            Administration.  Claimant identified his disabling condition 
 
            as poor memory.  Claimant did not indicate that the 
 
            disabling condition was work related.  
 
            24.  On March 20, 1989, Dr. Yates concluded that claimant's 
 
            symptoms are somewhat atypical of depression, but he was 
 
            working with a diagnosis of probable major depressive 
 
            (7).  Claimant continued to generated invalid testing results 
 
            at the University of Iowa.   The tests administered by 
 
            Daniel Tranel, Ph.D., on March 6, 1989, indicated that 
 
            claimant was unable to exert any effort at all on testing 
 
            that he had performed in connection with neuropsychological 
 
            evaluations.  Dr. Tranel felt that claimant had deliberately 
 
            directed his efforts to generate defective scores.  Again on 
 
            June 20, 1989, Keith Rogers, M.D., a staff psychiatric 
 
            physician at the University of Iowa Hospitals and Clinics, 
 
            indicated that the results of claimant's MMPI were 
 
            suggestive of someone trying to magnify the extent of his 
 
            physical and mental disabilities.  Dr. Rogers' impression 
 
            was that it was difficult to attribute the onset of the 
 
            claimant's mood disturbance wholly to the head trauma 
 
            without any other physiological sequelae or laboratory 
 
            abnormality.  Dr. Rogers ruled out an organic mood syndrome 
 
            and a major depressive disorder for claimant.  During 
 
            claimant's hospital stay, staff physicians Summers, M.D. and 
 
            Woods, M.D.,. indicated that, if claimant's responses to the 
 
            neuropsychological tests were valid and reliable, it would 
 
            be indicative of a severe depression symptomatology.  
 
            However, claimant continued to deliberately generate 
 
            defective performances on neuropsychological testing so that 
 
            there was virtually no way to tell whether there was a 
 
            relationship between his depression and memory deficits.  
 
            (8).  A factitious disorder and malingering are similar in 
 
            that they are based on an attempt by a patient to produce 
 
            symptoms for secondary gain.  Malingering would generally be 
 
            an attempt to produce symptoms for monetary purposes for 
 
            financial reimbursement.  Factitious disorder can be a 
 
            conscious production of symptoms for nonmonetary kinds of 
 
            purposes such as attention or getting into the hospital.  
 
            Generally, in order to make this kind of diagnosis, the 
 
            doctor would have to look for evidence that the patient has 
 
            a previous history of such behavior.  The doctor would 
 
            suspect an individual who may have personality disorders, 
 
            any social personality disorders which would include 
 
            criminal behaviors as part of their background.  This also 
 
            could include individuals who have been involved in 
 
            litigation.
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            disorder.  In view of the time sequence of the onset of his 
 
            symptoms, it was Dr. Yates' feeling that the head injury was 
 
            a contributing cause to his current psychiatric condition.  
 
            On March 27, 1989, Dr. Yates had another opportunity to 
 
            evaluate claimant.  Dr. Yates indicated that claimant was 
 
            probably suffering from a major depressive disorder, status 
 
            post-closed head trauma, and chronic headaches.  Dr. Yates 
 
            believed that claimant's condition at this point was work 
 
            related.
 
            25.  On June 3, 1989, claimant had a psychological 
 
            evaluation performed by Janis L. Konke, M.S., a licensed 
 
            psychologist, and Alford S. Karayusuf, M.D.  Claimant was 
 
            referred for the purpose of obtaining additional information 
 
            about his current level of intellectual functioning.  
 
            Claimant gave background information regarding his head 
 
            injury and his course of care since that time.  Claimant 
 
            gave no social history other than post injury history 
 
            regarding mood swings and interaction with his wife.  
 
            Claimant was given several tests.  As a result of these 
 
            tests Dr.Karayusuf and Ms. Konke concluded that the results 
 
            from the testing suggest mild deterioration in memory from 
 
            his current IQ scores.  But it was difficult to determine 
 
            whether claimant showed a decline in overall cognitive 
 
            performance because of uneven motivation on the test.
 
            26.  On June 20, 1989, claimant was admitted to the 
 
            University of Iowa Hospitals for treatment of a major 
 
            depressive disorder.  Claimant gave a history of his head 
 
            injury and then the immediate onset of depression.  Claimant 
 
            was examined by Dr. Summers who was unable to explain why 
 
            claimant's depression occurred when he was completely 
 
            healthy prior to the head trauma of June 3, 1988.  In the 
 
            clinical notes of June 19, 1989, Dr. Summers indicated that 
 
            claimant's depression was improving rapidly.  However, he 
 
            found it difficult to attribute claimant's depression to his 
 
            head injury, since the depression is progressive and it 
 
            suddenly responded to Prozac.  This conclusion was bolstered 
 
            by the multiple abnormal and invalid neuropsychological 
 
            testing results.
 
            27.  Claimant's behavior during his hospitalization 
 
            continued on its inconsistent course.  Claimant was 
 
            complaining of sleep loss yet while hospitalized, he was 
 
            sleeping eight and one-half hours to nine hours per night 
 
            and complained of sleeplessness.  Claimant was also 
 
            complaining of memory loss but he had excellent recall of 
 
            his medical history and the course of care that he has 
 
            received.  At the conclusion of claimant's neurobehavioral 
 
            consultation, R. D. Jones, Ph.D., found that claimant was 
 
            deliberately attempting to generate defective performance on 
 
            the neuropsychological tests.  
 
            28.  At the time of his discharge, claimant was diagnosed as 
 
            having major depressive disorder, microcytic anemia, status 
 
            post-head injury June 1988, and atypical chest pain.  The 
 
            staff indicated that it was difficult to attribute the onset 
 
            of his mood disturbance solely to a head trauma without any 
 
            other psychological sequelae or laboratory abnormality.  
 
            However, Dr. Rogers indicated it can be possible that 
 
            claimant's mood disturbance is solely related to the head 
 
            trauma in which case an organic mood syndrome is an 
 
            appropriate diagnosis.  A major depressive disorder is 
 
            essentially the same syndrome.  Dr. Rodgers went on the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            conclude that there was no etiological factor present in 
 
            this circumstance.  Consequently a major depressive disorder 
 
            is less likely than an organic mood syndrome.  Dr. Rodgers 
 
            noted that because of the pending litigation and an invalid 
 
            MMPI with exaggerated complaints and there is a possibility 
 
            of malingering or a factitious disorder.
 
            29.  On March 7, 1990, Dr. Yates prepared a progress note 
 
            regarding claimant's condition and the possible relation to 
 
            his head injury.  The visit with claimant on this date was 
 
            designed to further evaluate historical factors in his 
 
            symptoms.  Claimant's history was tidied up in Dr. Yates' 
 
            report.  The assessment on this date was that claimant had a 
 
            major depressive disorder secondary to his head injury.  On 
 
            March 20, 1990, Dr. Yates indicated that it was his 
 
            professional opinion that claimant's accident on June 3, 
 
            1988, caused his current psychiatric illness.
 
            30.  Claimant was examined by Samuel L. Graham, Ph.d., on 
 
            July 2, 1990.  Dr. Graham concluded that claimant was 
 
            uncooperative and his response style suggested a conscious 
 
            attempt to magnify symptoms or to claim symptoms to enhance 
 
            his chances of monetary gain.  Claimant's test results were 
 
            not consistent with known and accepted profiles for 
 
            cognitive disorders or emotional patterns.  Claimant was 
 
            found to be motivated noncompliant(9).  Dr. Graham's findings 
 
            were consistent with those of Dr. Peltan and the University 
 
            of Iowa.  Claimant was tested for potential epileptic 
 
            conditions which were negative.  Based on a review of all of 
 
            the records made available to him, Dr. Graham concluded that 
 
            there is no reliable evidence to support the claimant's 
 
            claim of cognitive deficits and, if there were reliable 
 
            evidence to support the alleged cognitive deficits, they 
 
            would most reasonably be attributed to 
 
            psychological/psychiatric factors and not organic factors 
 
            related to the reported head injury.
 
            31.  On September 10, 1990, Joseph M. Doro, D.O., a 
 
            neurologist, had an opportunity to evaluate claimant.  
 
            Claimant gave a description of his injury and symptoms.  Dr. 
 
            Doro summarized claimant's medical care and test results to 
 
            September 10, 1990 from the records made available to him.  
 
            On examination, Dr. Doro found that claimant was able to 
 
            give a good amount of information about his illness and he 
 
            was able to go into detail about what happened at the time 
 
            of his injury and also about the number of other physicians 
 
            that he has seen.  Dr. Doro found this ability to be 
 
            inconsistent with poor memory or memory loss.  Dr. Doro 
 
            concluded after the exam and review of claimant's records 
 
            that, in his opinion based upon a reasonable degree of 
 
            medical certainty, there was no neurological basis for 
 
            claimant's complaints.  
 
            32.  On March 20, 1991, claimant began a self referred 
 
            evaluation at Mayo Clinic.  At the time of his admission, 
 
            claimant was diagnosed as having post traumatic syndrome 
 
            with somatization and normal neurological studies.  When 
 
            claimant was evaluated in the neurological clinic he gave a 
 
            description of his injury and symptoms.  After the 
 
            (9).  Motivated noncompliance is interpreted to mean that a 
 
            patient is being uncooperative intentionally for some reason 
 
            that is outside of the normal assumption of the motivation 
 
            of the patient seeking treatment, such as, secondary gain.
 
            
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            examination, Dr. Bastron thought that claimant was suffering 
 
            from post-traumatic syndrome.  Dr. Bastron noted that there 
 
            was no evidence of organic disease or damaged nervous system 
 
            on clinical examination.  He noted that there was a 
 
            secondary gain element involved in claimant's case.  The eye 
 
            clinic confirmed that claimant needed glasses to correct a 
 
            blurred vision problem.  On continued examination at the 
 
            neurological clinic, Dr. Peterson noted that claimant's 
 
            symptoms are those of a depression disorder and chronic pain 
 
            disorder.  The MMPI shows general elevation and marked 
 
            elevation of several scales associated with somatization and 
 
            obsessive thinking.  Dr. Peterson found it hard to believe 
 
            that claimant's depression could be due to his original 
 
            injury if it was as trivial as it seems.  Dr. Peterson 
 
            related claimant's depression to the unsettled litigation.  
 
            Dr. Peterson thought claimant was probably overstating his 
 
            symptoms and complaints.  At the time of his discharge, 
 
            claimant's final diagnosis was post-traumatic syndrome, 
 
            sexual dysfunction, possible depression, prosbyopia, mild 
 
            anemia due to beta thalsassemia trait, and tension headaches 
 
            and tension myalgias of the neck.
 
            33.  On May 17, 1991, Dr. Peltan had an opportunity to 
 
            review claimant's medical records for the time period after 
 
            he evaluated claimant in 1988.  These records contained 
 
            further social history for claimant including pending child 
 
            support litigation and his financial problems.  Many of the 
 
            stressors in claimant's life, Dr. Peltan concluded, were 
 
            self-induced.  Claimant was undependable about paying bills 
 
            and meeting other financial obligations.  This pattern 
 
            appeared to be longstanding.  His behavior seems to be in 
 
            keeping with Dr. Peltan's previous impression of an 
 
            individual who manipulates the system, who is opportunistic 
 
            and who disregards the usual social norms.  He concurs with 
 
            findings from the Mayo Clinic that, due to claimant's 
 
            pending litigation, it is difficult to assess the presence 
 
            of depression.  Dr. Peltan concluded that claimant had 
 
            created a life style for himself that is depressing.  
 
            Whether or not he has an actual effective illness is 
 
            questionable.
 
            34.  On June 10, 1991, claimant's medical records were 
 
            reviewed by James L. Gallagher, M.D., a board certified 
 
            psychiatrist.  Claimant did not appear for the scheduled 
 
            appointment on May 1, 1991.  Claimant refused to attend the 
 
            evaluation by Dr. Gallagher because claimant's counsel 
 
            believed that defendants had already had enough 
 
            opportunities to evaluate claimant.  Dr. Gallagher had a 
 
            complete record of claimant's treatment.  Based upon this 
 
            record, he concluded that Dr. Yates' diagnosis was flawed 
 
            and that the causal connection between the injury and 
 
            claimant's depression had no basis in the medical evidence 
 
            accumulated after claimant was injured in 1988.  Dr. 
 
            Gallagher questioned  Dr. Yates' diagnosis of either 
 
            atypical depression or major depressive disorder because it 
 
            was not clear how these diagnoses are different.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Additionally, he notes that the connection between the 
 
            injury and the depression was not clear and was a puzzlement 
 
            even to Dr Yates.  Dr. Gallagher found that there was an 
 
            acceptance of claimant's stated subjective complaints 
 
            without reference to premorbid functional history which was 
 
            significant for life stressors.  Dr. Gallagher also pointed 
 
            to the normal neurological findings and test results at the 
 
            University of Iowa and by Dr. Doro as supporting his 
 
            conclusion that the causal connection between claimant's 
 
            injury at work and his depression was tenuous.  Dr. 
 
            Gallagher indicated that the inconsistent test results also 
 
            support his conclusion that claimant's injury at work did 
 
            not cause his depression.  Dr. Gallagher found that there 
 
            was clearly a pattern of symptom maximization in order to 
 
            achieve financial gain.  Dr. Gallagher concluded that 
 
            claimant was demonstrating all of the indicators for 
 
            malingering.  These indicators include (1) the medical/legal 
 
            contest, (2) the obvious inconsistencies in 
 
            neuropsychological testing, (3) Dr. Yates' own puzzlement as 
 
            to why claimant would develop a depressive disorder after 
 
            his head injury (4) claimant's pre-morbid history and (5) 
 
            the fact that there simply is no substantial evidence of 
 
            head injury.  
 
            35.  On May 24, 1991, Renee Kidman, a rehabilitation 
 
            professional, began a rehabilitation services for claimant.  
 
            After testing, Ms. Kidmant concluded that the claimant gave 
 
            less than optimal effort on the tests and the results were 
 
            inconsistent with his abilities.  Claimant was unconcerned 
 
            about the future since his wife was working, he was drawing 
 
            the maximum Social Security benefits, he has a retirement 
 
            benefit, and he has a Jaguar in the garage.
 
            36.  On June 17, 1991, Dr. Verma examined claimant for 
 
            evaluation of left-sided numbness.  Dr. Verma had a history 
 
            of claimant's injury and symptoms after the injury.  Dr. 
 
            Verma was aware of claimant's other treatment at the 
 
            University of Iowa and Mayo Clinic.  After the examination, 
 
            Dr. Verma's impression was that claimant was suffering from 
 
            post-traumatic syndrome with numerous somatic complaints 
 
            probably related to underlying depression.  He was also 
 
            suffering from tension headaches, subjective paresthesia on 
 
            the left side, nonanatomical in distribution with several of 
 
            the somatic complaints most likely related to the underlying 
 
            depression.  Dr. Verma noted that the unsettled litigation 
 
            made assessment of these conditions difficult.  Claimant had 
 
            give way weakness on the left during the examination.  A 
 
            repeat EMG and nerve conduction study was done on June 25, 
 
            1991.  The test was normal for the left arm and leg.
 
            37.  Claimant's monthly income, consists of a Social 
 
            Security check for $781 per month.  Additionally, claimant 
 
            draws a pension benefits form his union in the amount of 
 
            $234 per month.  Income for claimant's family includes a 
 
            Social Security disability payment for claimant's child 
 
            currently living with him in the amount of $333 and for his 
 
            wife in the amount of $330.  Total monthly income for the 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            household is $1,681 per month.  The bulk of these sums are 
 
            tax free.  Additionally, claimant qualifies for medicare 
 
            benefits since he is on Social Security disability.  
 
            38.  On March 1, 1990, the University of Iowa Hospitals 
 
            submitted a bill in the amount of $8,124.55 for services 
 
            rendered to claimant.  There is a medical service balance of 
 
            $1,122.00.  Of these amounts, it appears that claimant had 
 
            work done on his teeth while he was at the University of 
 
            Iowa Hospitals on June 27 for a total of $55.75.  Claimant 
 
            also apparently had chest x-rays, and an electrocardiogram 
 
            on at least two occasions.  The amounts for those services 
 
            were $29.25 and $172.00, respectively.  Claimant also had a 
 
            stress test and a treadmill test totalling $149.50 and 
 
            $45.50, respectively.  Medical services in connection with 
 
            the cardiovascular stress test totalled $104.00.  Claimant 
 
            also had subsequent x-rays of his teeth that cost $16.00 for 
 
            the medical services provided in connection with the x-rays.  
 
            Additionally, the costs associated with the chest x-rays and 
 
            the electrocardiogram totalled $26.00 and $24.00, 
 
            respectively.
 
            CONCLUSIONS OF LAW
 
            1.  Whether claimant sustained an injury on June 3, 1988, 
 
            which arose out of and in the course of his employment with 
 
            Prairie Farms.
 
            Claimant urges that he has suffered an injury that arose out 
 
            of and in the course of his employment when he struck his 
 
            head in some fashion on June 3, 1988.  The defendants urge 
 
            that the injury did not occur.  
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that he received an injury on June 3, 1988 which 
 
            arose out of and in the course of his employment. McDowell 
 
            v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 
 
            (Iowa 1967).  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); 
 
            Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 
 
            65 (Iowa 1955).  The words "in the course of" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An injury occurs in 
 
            the course of the employment when it is within the period of 
 
            employment at a place the employee may reasonably be, and 
 
            while the employee is doing work assigned by the employer or 
 
            something incidental to it.  Cedar Rapids Community School 
 
            District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 
 
            188 N.W.2d at 287; Musselman, 154 N.W.2d at 130.  A 
 
            determination that an injury "arises out of" the employment 
 
            contemplates a causal connection between the conditions 
 
            under which the work was performed and the resulting injury; 
 
            i.e., the injury followed as a natural incident of the work.  
 
            Musselman, 154 N.W.2d at 130; Reddick v. Grand Union Tea 
 
            Co., 296 N.W. 800, 804 (Iowa 1941).
 
            The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            The Almquist Court further observed that while a personal 
 
            injury does not include an occupational disease under the 
 
            Workmen's Compensation Act, yet an injury to the health may 
 
            be a personal injury.  A personal injury includes a disease 
 
            resulting from an injury.  However, the result of changes in 
 
            the human body incident to the general processes of nature 
 
            do not amount to a personal injury.  This is true, even 
 
            though natural change may come about because the life has 
 
            been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            In this instance, the claimant has not shown that he has 
 
            suffered an injury that arose out of and in the course of 
 
            his employment.  The only medical evidence that establishes 
 
            a causal connection between claimant's depression, and his 
 
            bump on the head is by Dr. Yates.  Dr. Yates' opinion is 
 
            discounted in this instance because he had an incomplete 
 
            history when claimant presented for treatment.  Claimant 
 
            failed to give any social history which might have 
 
            influenced Dr. Yates opinion of the cause of claimant's 
 
            depression.  More compelling are the opinions of the 
 
            University of Iowa doctors, the doctors at Mayo Clinic and 
 
            Drs. Doro and Gallagher regarding the cause of claimant's 
 
            depression.  None of these professionals were willing to 
 
            make the same connection that Dr. Yates made on the same 
 
            facts.  With the additional facts provided to Dr. Peltan and 
 
            Dr. Gallagher the connection between the work injury and the 
 
            resulting depression becomes even more tenuous.  
 
            The varying descriptions of claimant's injury suggest that 
 
            he could not refrain from embellishing the claimed hurt once 
 
            he decided there was a secondary gain element in the telling 
 
            and re-telling of the circumstances of the injury.  The 
 
            subsequent medical reports and tests could find no evidence 
 
            of the injury to claimant's head.  Des Moines General 
 
            emergency room doctors found no evidence of a laceration or 
 
            intermittent bleeding from claimant's head at the time they 
 
            examined claimant.  There was no evidence of any lesion or 
 
            subdural hematoma after the injury when a CT scan was 
 
            performed in early July.  In short, there was no objective 
 
            evidence to support the existence or after effects 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            claimant's alleged injury.  Claimant's supervisor did not 
 
            see any evidence of an injury and none of claimant's 
 
            coworkers saw the injury.  Claimant's report of the injury 
 
            is the only report of the injury and it is unreliable.  
 
            Moreover in connection with claimant's depression, 
 
            claimant's inconsistent test results and convenient memory 
 
            failures along with the medical conclusions in this regard 
 
            all support the conclusion that claimant's depression did 
 
            not result from any incident at work.  Consequently, 
 
            claimant will take nothing from this proceeding.
 
            The remaining issues raised by the claimant are moot since 
 
            claimant has failed to pass the threshold test for 
 
            establishing a workers' compensation claim.  Claimant is not 
 
            entitled to a running healing period award and claimant is 
 
            not entitled to have his medical bills paid.
 
            order
 
            THEREFORE, it is ordered:
 
            1.  That claimant shall take nothing from this proceeding.
 
            2.  The costs of this action shall be assessed to claimant 
 
            pursuant to rule 343 IAC 4.33.
 
            Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                      ELIZABETH A. NELSON
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Arvid D Oliver
 
            Attorney at Law
 
            2635 Hubbell Avenue
 
            Des Moines Iowa 50317
 
            
 
            Ms Dorothy L Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1108
 
                                          Filed April 29, 1992
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES JONES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 897423
 
            PRAIRIE FARMS DAIRY, INC.,    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            The evidence was insufficient to show that claimant's 
 
            injury, a major depressive disorder arose from a bump on his 
 
            head.  The claimant was not credible and the evidence 
 
            regarding his injury was in such disarray that a finding of 
 
            arising out of and in the course of employment could not be 
 
            made.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA L. SPARROW,             :
 
                                          :       File No. 897528
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            SHELLER-GLOBE CORP.,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Donna L. 
 
            Sparrow, claimant, against Sheller-Globe Corp., employer 
 
            (hereinafter referred to as Sheller), a self-insured defen
 
            dant, for workers' compensation benefits as a result of an 
 
            alleged injury on October 4, 1988.  On April 17, 1990, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On October 4, 1988, claimant received an injury 
 
            which arose out of and in the course of his employment with 
 
            Sheller.
 
            
 
                 2.  Claimant's entitlement to temporary total disabil
 
            ity or healing period benefits extend from October 10, 1988 
 
            through April 13, 1989.
 
            
 
                 3.  The injury is a cause of permanent disability and 
 
            the type of disability is an industrial disability to the 
 
            body as a whole.
 
            
 
                 4.  Permanent partial disability benefits shall begin 
 
            on April 14, 1989.
 
            
 
                 5.  Claimant's rate of weekly compensation as a result 
 
            of the injury in this proceeding shall be $265.65.
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendant.
 
            
 
                                      issue
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the dis
 
            ability.  From her demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant has worked for Sheller since April of 1984 and 
 
            continues to do so at the present time.  Claimant's health 
 
            prior to her employment at Sheller and her work injury 
 
            herein was good and she had no prior low back problems.  
 
            Claimant's highest paying job before her injury was making 
 
            "inserts."  Prior to the work injury in this case, claimant 
 
            was demoted in a plant reduction to the mold room and it was 
 
            while performing mold room duties that she suffered the 
 
            injury herein.
 
            
 
                 On October 4, 1988, claimant injured her low back by 
 
            rupturing a disc at the L4-5 level of her spine while push
 
            ing a mold form across a cement floor.  Claimant's condition 
 
            was rather quickly diagnosed as a ruptured disc and she 
 
            underwent surgery to correct the problem on October 17, 
 
            1988, by Robert Mirbegian, M.D., claimant's primary treating 
 
            orthopedic surgeon.  Claimant required several months to 
 
            recover from the surgery.  Claimant was first released to 
 
            light duty in February 1989, but a job was not found to 
 
            accommodate her restrictions and she did not actually return 
 
            until April 14, 1989.  Dr. Mirbegian initially recommended a 
 
            temporary restriction that she should have a job that would 
 
            allow her to change positions every couple of hours.
 
            
 
                 Claimant did not return to the mold room in April 1989.  
 
            She returned to work to a different job called "trimming 
 
            plugs."  This job is light duty and allows claimant to 
 
            either sit or stand.  Claimant continues to perform this job 
 
            at the present time.  Claimant did not suffer a loss of 
 
            earnings from moving from the mold job to her current job.  
 
            No evidence was offered as to what the job of making inserts 
 
            pays at the current time.
 
            
 
                 As a result of the work injury of October 4, 1988, 
 
            claimant has a 10 percent permanent partial impairment to 
 
            the body as a whole.  Also, claimant is permanently 
 
            restricted from activity which would require lifting over 
 
            5-10 pounds and is restricted from repetitive bending, stoop
 
            ing or lifting.  She also can only perform jobs which allow 
 
            her to change positions frequently in the course of a work 
 
            day.  Claimant must change positions every few hours to pre
 
            vent pain and numbness in her legs.  The percentage of 
 
            impairment finding was based upon the views of Dr. 
 
            Mirbegian.  There was another rating by Dr. G. M. Crank.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            His views could not be given greater weight than those of 
 
            Dr. Mirbegian for a variety of reasons.  First, there is no 
 
            indication of any specialty, if any, or what type of medical 
 
            training Dr. Crank has had as he did not sign his name with 
 
            any title such as M.D., D.O. or D.C.  Also, Dr. Crank gives 
 
            a disability rating but states that it is not permanent as 
 
            claimant should still be under care.
 
            
 
                 Claimant testified that Dr. Crank imposed a 5-10 pound 
 
            restriction and imposed restrictions against bending, reach
 
            ing and stooping.  It is found that these inded are her cur
 
            rent restrictions.  This finding that the restrictions coin
 
            cide with those imposed by Dr. Crank is based primarily on 
 
            the credible testimony of claimant as to her own assessment 
 
            of her limitations.
 
            
 
                 As a result of the work injury of October 4, 1988, 
 
            claimant has suffered a 15 percent loss of earning capacity.  
 
            The claimant's loss of earning capacity has been minimized 
 
            because of defendant's accommodation for her disability.  
 
            Prior to the injury, claimant was able to perform heavy 
 
            lifting, repetitive lifting, bending, twisting and stooping 
 
            and prolonged sitting and standing.  Due to the work injury 
 
            and resulting physical limitations, claimant's medical con
 
            dition prevents her from returning to her former work to the 
 
            mold department or making inserts.  However, claimant has 
 
            been returned to work in a job she requested to minimize her 
 
            pain and discomfort.  Also, claimant is relatively young at 
 
            the age of 29 years.  Claimant's past employment primarily 
 
            consists of waitress work and assembly.  Claimant has not 
 
            offered evidence that she is unable to perform a waitress 
 
            job although an inability to perform repetitive lifting and 
 
            bending would restrict her from most assembly work.  
 
            Claimant's earnings to date have not been affected and this 
 
            will continue so long as she is able to continue in her pre
 
            sent job at Sheller.  There was no evidence that this job 
 
            was not suitable or stable at the present time.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 15 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 75 weeks of permanent partial 
 
            disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 15 percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 The parties stipulated as to the extent of claimant's 
 
            entitlement to healing period benefits.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant seventy-five (75) 
 
            weeks of permanent partial disability benefits at the stipu
 
            lated rate of two hundred sixty-five and 65/l00 dollars 
 
            ($265.65) per week from April 14, 1989.
 
            
 
                 2.  Defendant shall pay the healing period benefits as 
 
            stipulated but for the period of time stipulated by the par
 
            ties from October 10, 1988 through April 13, 1989, at the 
 
            rate of two hundred sixty-five and 65/l00 dollars ($265.65).
 
            
 
                 3.  Defendant shall pay accrued weekly benefits in a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            lump sum and shall receive credit against this award for all 
 
            weekly benefits previously paid.
 
            
 
                 4.  Defendant shall pay the interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendant shall pay the cost of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 5.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            Keokuk  IA  52632
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St  Suite 16
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed September 4, 1990
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONNA L. SPARROW,             :
 
                                          :       File No. 897528
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            SHELLER-GLOBE CORP.,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                 Extent of permanent partial disability benefits.
 
            
 
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            NANCY L. KAMERLING,           :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 997296
 
            vs.                           :                 938346
 
                                          :                 898273
 
            MARRIOTT CORPORATION,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            ARGONAUT INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Nancy 
 
            Kamerling, claimant, against Marriott Corporation, employer, 
 
            hereinafter referred to as Marriott, and Argonaut Insurance 
 
            Company, insurance carrier, defendants, for workers' 
 
            compensation benefits as a result of alleged injuries on 
 
            September 15, 1988, March 3, 1989 and October 19, 1989.  On 
 
            September 16, 1993, a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Marriott at the time of the alleged injuries.
 
            
 
                 2.  On September 15, 1988 claimant received an injury 
 
            arising out of and in the course of employment with 
 
            Marriott.  Defendants dispute the occurrence of an injury on 
 
            March 3, 1989 and October 19, 1989.
 
            
 
                 3. Claimant is not seeking additional temporary total 
 
            or healing period benefits in this proceeding.
 
            
 
                 4.  Medical benefits are not in dispute.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            determination in this proceeding:
 
            
 
                  I.  Whether claimant received injuries arising out of 
 
            and in the course of employment in March and October 1989; 
 
            and,
 
            
 
                 II. The extent of claimant's entitlement to permanent 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant, age 59, has worked for Marriott since 1984 
 
            and continues to do so at the present time.  At the time of 
 
            the injuries, claimant was a cook at Cornell College.  The 
 
            college contracts out its food service function to 
 
            defendants.  Due to restrictions on her physical activity, 
 
            claimant now works as a cafeteria worker performing duties 
 
            such as delivery of food; setting up equipment; maintaining 
 
            the salad bar; making coffee; clean up; etc.  Claimant 
 
            stated that she prefers working as a cook.
 
            
 
                 Claimant has demonstrated by the evidence injuries at 
 
            the times alleged.  The undisputed injury in September 1988 
 
            involved a slip and fall in which she injured her back.  
 
            Claimant received chiropractic treatment for this injury.  
 
            Claimant states that this involved primarily the upper back.  
 
            However, her medical records show a primary diagnosis of 
 
            grade I spondylolisthesis with degenerative arthritis at the 
 
            L4-5 level of her lower spine.
 
            
 
                 Claimant also injured her back on March 3, 1989 and 
 
            again on October 19, 1989 while performing her duties at 
 
            Marriott.  Although denied by defendants, there is little 
 
            question that she suffered pain and required treatment at 
 
            these times.  However, the real fighting issue is the causal 
 
            connection of these injuries to permanency.
 
            
 
                 Also, there is little question in the record that 
 
            claimant does suffer a significant permanent impairment as a 
 
            result of her back condition.  Functional capacities testing 
 
            indicates a general inability to lift, carry, push or pull 
 
            heavy weights.
 
            
 
                 However, claimant has had chronic back problems since a 
 
            fall while trout fishing in August 1986.  Claimant has 
 
            received regular chiropractic care since that time following 
 
            repeated episodes of back strain and pain after physical 
 
            activity involving numerous falls, twisting episodes, 
 
            bending from painting, jerking from an auto accident and 
 
            using household appliances.  This continuous and chronic 
 
            condition continues at the present time.  Claimant has not 
 
            been without chiropractic care for more than six months 
 
            since 1986. 
 
            
 
                 By far the most significant injury was the December 15, 
 
            1988 fall at work.  Claimant, at hearing, admitted that most 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            of her problems began at that time.  The evidence does not 
 
            show a change in the course of pain and treatment as a 
 
            result of the incidents at work in March and October 1989.  
 
            It is found that these injuries were only temporary 
 
            aggravations of claimant's pre-existing condition.  Claimant 
 
            has failed to show that either of these injuries were a 
 
            cause of her current permanent disability.  The only 
 
            physician to render a causation opinion definitely does not 
 
            relate the spondylolithesis to any of the injuries herein.  
 
            Also, he indicates that the question largely is the matter 
 
            of when the first onset of symptoms occurred.  These appear 
 
            to be well before either of the two injuries on March 3, 
 
            1989 and October 19, 1989.
 
            
 
                 Whether or not the December 15, 1988 injury is a 
 
            causative factor in permanency is not relevant as more than 
 
            three years elapsed between the last payment of weekly 
 
            benefits for that injury on November 11, 1988 and the filing 
 
            of the arbitration petition for that injury on December 12, 
 
            1991.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant received an 
 
            injury arising out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury. See generally, Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments. A work connected injury which 
 
            more than slightly aggravates the condition is considered to 
 
            be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 In the case sub judice, sufficient evidence was 
 
            presented to show work injuries at the times alleged.  
 
            However, the real dispute involved causation of those 
 
            injuries to permanency.
 
            
 
                 II.  The question of causal connection is essentially 
 
            within the domain of expert medical opinion.  Bradshaw v. 
 
            Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960).  The opinion of experts need not be couched in 
 
            definite, positive or unequivocal language and the expert 
 
            opinion may be accepted or rejected, in whole or in part, by 
 
            the trier of fact.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974). The weight to be given to such an opinion 
 
            is for the finder of fact to determine from the completeness 
 
            of the premise given the expert or other surrounding 
 
            circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with non-expert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith at 354.  In the case of a 
 
            preexisting condition, 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).
 
            
 
                 In the case sub judice, claimant contends that she has 
 
            suffered additional disability as a result of the work 
 
            injuries in March and October 1989 due to additional 
 
            permanent impairment to the back.  First, the evidence 
 
            established that she suffers from a permanent impairment to 
 
            the back.  However, the evidence failed to show the 
 
            requisite causal connection between any of these work 
 
            injuries and the permanent impairment. 
 
            
 
                 Any claim based upon the December 15, 1988 fall injury 
 
            at Marriott must be denied as it is untimely.  Claimant must 
 
            establish by a preponderance of the evidence that she filed 
 
            her claim with this agency within the prescribed period of 
 
            time allowed under Iowa Code section 85.26.  Such a showing 
 
            is necessary to demonstrate this agency's subject matter 
 
            jurisdiction over the controversy and a condition precedent 
 
            to filing suit for comp benefits under chapters 85, 85A, 85B 
 
            and 86 of the Iowa Code.  Mousel v. Bituminous Material and 
 
            Supply Co., 169 N.W.2d 763 (Iowa 1969).  Generally, claims 
 
            for benefits must be filed within two years of the date of 
 
            injury or within three years of the date of a late payment 
 
            of weekly benefits.
 
            
 
                 As it was found that more than three years elapsed 
 
            between the last payment of weekly benefits and the filing 
 
            of the petition for the December 15, 1988 injury, the claim 
 
            is untimely and barred by Iowa Code section 85.26.
 
            
 
                                       ORDER
 
            
 
                 1.  All of the claims in this proceeding are dismissed 
 
            with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Mr. James Thomas
 
            Attorney at Law
 
            102 North Ford Street
 
            Anamosa, Iowa  52205
 
            
 
            Ms. Carolyn M. Hinz
 
            Mr. Matthew J. Brandes
 
            Attorneys at Law
 
            1200 MNB Building  STE 1200
 
            115 Third Street SE
 
            Cedar Rapids, Iowa  52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 14, 1993
 
                                          LARRY P. WALSHIRE
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            NANCY L. KAMERLING, 
 
                      
 
                 Claimant, 
 
                                               File Nos. 997296
 
            vs.                                          938346
 
                                                         898273
 
            MARRIOTT CORPORATION,    
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            ARGONAUT INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            HAYDEN WATTS (DEC) by     :
 
            JOLIENE WATTS-wife,       :
 
		                      :      File No. 898366
 
                 Claimant,	      :
 
 		                      :        A P P E A L
 
 		            vs.       :
 
                  		      :      D E C I S I O N
 
            IBP, INC.,    	      :
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ____________________________________________________________
 
            _____
 
            statement of the case
 
            Claimant appeals from a Ruling on a Motion for Summary 
 
            Judgment dismissing claimant's cause of action for failing 
 
            to file an original notice and petition within the two years 
 
            statute of limitations.  
 
            issue
 
            The sole issue on appeal is whether defendant's motion for 
 
            summary judgment should be granted.
 
            findings of fact
 
            Claimant's cause of action allegedly arises from the death 
 
            of her husband on August 31, 1988 while employed by the 
 
            defendant.  
 
            Claimant's original notice and petition was filed by 
 
            claimant's first attorney on January 25, 1989, but the $65 
 
            filing fee was not paid.  An order was filed giving claimant 
 
            14 days to pay the fee.  Claimant complied with the order on 
 
            February 9, 1989.  This action was subsequently dismissed 
 
            without prejudice by claimant on July 27, 1990.
 
            Claimant refiled the original notice and petition, pro se, 
 
            on August 30, 1990, but failed to enclose the $65.00 or in 
 
            the alternative, failed to file an application for deferral 
 
            of the filing fee at the time the original notice and 
 
            petition was filed pursuant to rule 343 IAC 4.8(2).  The 
 
            filing was denied on September 7, 1990 by a deputy 
 
            industrial commissioner for failure to comply with rule 
 
            4.8(2).  Claimant filed an application to defer the payment 
 
            of the filing fee, along with a financial statement on 
 
            September 24, 1990.  An order allowing the deferral was 
 
            entered on October 4, 1990.  Claimant's original notice and 
 
            petition was considered filed on September 24, 1990 at the 
 
            time the motion for summary judgment was considered by the 
 
            deputy.
 
            The defendant filed a motion for summary judgment on 
 
            February 1, 1991 and claimant filed a resistance on February 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            15, 1991.
 
            applicable law
 
            To be successful on a motion for summary judgment, the 
 
            moving party must demonstrate the absence of any genuine 
 
            issue of material fact and show that he or she is entitled 
 
            to judgment as a matter of law.  Iowa R.Civ.P. 237(c); 
 
            Trumbo v. Morris, No. 0-400/89-1736, slip op. at 3 (Iowa 
 
            Ct. App. Nov. 29, 1990); Hall v. Barrett, 412 N.W.2d 648, 
 
            650 (Iowa Ct. App. 1987); Suss v. Schmmel, 375 N.W.2d 252, 
 
            254 (Iowa 1985).
 
            The burden of showing that there is no genuine issue of 
 
            material fact is upon the party moving for summary judgment.  
 
            Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 350 (Iowa 
 
            1987); Northrup v. Farmland Industries, Inc., 372 N.W.2d 
 
            193, 195 (Iowa 1985).  The resisting party, however, must 
 
            set forth specific facts showing there is a genuine issue 
 
            for trial.  Iowa R.Civ.P. 237(e); Iowa Civil Rights 
 
            Commission v. Massey-Fergusen, Inc., 207 N.W.2d 5, 8 (Iowa 
 
            1973); McCollough v. Campbell Mill & Lumber Co., 406 N.W.2d 
 
            812, 813 (Iowa Ct. App. 1987); Pappas v. Hughes, 406 N.W.2d 
 
            459, 460 (Iowa Ct. App. 1987).  The resisting party may not 
 
            rely solely on legal conclusions to show there is a genuine 
 
            issue of material fact justify denial of summary judgment.  
 
            Id. at 460; Byker v. Rice, 360 N.W.2d 572, 575 (Iowa Ct. 
 
            App. 1984).
 
            When confronted with a motion for summary judgment, the 
 
            undersigned is required to examine, in the light most 
 
            favorable to the party opposing the motion, the entire 
 
            record including the pleadings, admissions, depositions, 
 
            answers to interrogatories and affidavits, if any, to 
 
            determine whether any genuine issue of material fact is 
 
            generated thereby. Sparks v. Metalcraft, Inc., 408 N.W.2d at 
 
            350 (Iowa 1987); Drainage District No. 119, Clay County v. 
 
            Incorporated City of Spencer, 268 N.W.2d 493, 499-500 (Iowa 
 
            1978).  A fact question is generated if reasonable minds can 
 
            differ on how the issue should be resolved.  Northrup v. 
 
            Farmland Industries, Inc., 372 N.W.2d 193, 195 (Iowa 1978); 
 
            Henkel v. R & S Bottling Co., 323 N.W.2d 185, 187-188 (Iowa 
 
            1982).  If upon examination of the entire record the 
 
            undersigned determined no such issue is present, and the 
 
            movant is entitled to judgment as a matter of law, entry of 
 
            summary judgment is proper.  Sparks v. Metalcraft, Inc., 408 
 
            N.W.2d at 350. 
 
            Rule 343 IAC 4.8 governs the commencement of action before 
 
            the Division of Industrial Services.  Rule 343 IAC 4.8(2) 
 
            states:
 
                 a.  On or after July 1, 1988, for all original notices 
 
            and petitions for arbitration ... seeking weekly benefits 
 
            filed on account of each injury, ... alleged by an employee, 
 
            a filing fee of $65 shall be paid at the time of filing....
 
               ....
 
                 If no filing fee is paid at the time of filing of the 
 
            original notice and petition, the industrial commissioner 
 
            shall return the original notice and petition to the party 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            filing it.  Filing an original notice and petition without 
 
            paying the fee shall not toll the state of limitations.  
 
            Tendering an amount less than $65 will be considered failure 
 
            to pay a filing fee.
 
               ....
 
                 h.  The industrial commissioner may accept for filing 
 
            an original notice and petition without prepayment of the 
 
            filing fee if in the discretion of the industrial 
 
            commissioner the petitioner is unable to pay the fee at the 
 
            time of filing.  A deferral of payment of the filing fee 
 
            shall only be granted upon written application by the 
 
            petitioner.  The application shall be filed at the same time 
 
            of the original notice and petition is filed.  The 
 
            application shall be in the form required by the industrial 
 
            commissioner and shall include an affidavit signed by the 
 
            petitioner.
 
            Also pertinent is rule 343 IAC 2.1 which states, "For good 
 
            cause the industrial commissioner or the commissioner's 
 
            designee may modify the time to comply with any rule."
 
            conclusions of law
 
            A genuine issue of material fact exists in this case which 
 
            makes summary judgment improper.  Claimant filed an 
 
            affidavit which accompanied her resistance to defendant's 
 
            motion for summary judgment.  In her affidavit, claimant 
 
            attests that she filed her original notice and petition on 
 
            August 30, 1990.  Defendant asserts that claimant's original 
 
            notice and petition was not filed until September 24, 1990.  
 
            If claimant filed her petition on August 30, 1990 it was 
 
            timely filed.  On the other hand, if claimant filed her 
 
            original notice and petition on September 24, 1990 it was 
 
            not timely filed.  Therefore, a genuine issue of material 
 
            fact exists which would make summary judgment improper.  For 
 
            the sake of judicial economy, the issue of when claimant's 
 
            original notice and petition was filed will be determined at 
 
            this time.
 
            In this case, one deputy industrial commissioner ruled that 
 
            claimant's original notice and petition was denied on 
 
            September 7, 1990, for failure to include a filing fee or in 
 
            the alternative, an application for deferral of filing fee 
 
            pursuant to rule 343 IAC 4.8(2).  As a result, claimant's 
 
            original notice  and petition was not considered filed until 
 
            September 24, 1990, the date claimant's application for 
 
            deferral was received.  The deputy industrial commissioner 
 
            ruling on the summary judgment had no authority to overrule 
 
            the prior ruling of another deputy industrial commissioner 
 
            and therefore, is bound by the prior ruling denying 
 
            claimant's original notice and petition on September 7, 
 
            1990.  The industrial commissioner, however, under rule 343 
 
            IAC 2.1 may modify the time to comply with any rule of this 
 
            agency if good cause is shown.
 
            It is apparent from looking at the file that claimant, while 
 
            proceeding pro se, had very little resources at her 
 
            disposal.  On the back of claimant's original notice and 
 
            petition, claimant writes that she lives on social security 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            benefits of two hundred and fifty-six dollars per month and 
 
            cannot afford to pay the filing fee.  This appears to be a 
 
            request for a deferral of the filing fee.  This request for 
 
            deferral did not, however, comply with rule 343 IAC 
 
            4.8(2)(h) which states that the request for deferral shall 
 
            be filed in the form required by the industrial 
 
            commissioner.  Claimant complied with rule 4.8(2)(h) on 
 
            September 24, 1990 when she filed her request for deferral 
 
            which was approved by a deputy industrial commissioner.
 
            Claimant attempted to comply with rule 4.8(2)(h) on August 
 
            30, 1990 when she wrote on the back of her original notice 
 
            and petition that she was unable to pay the filing fee.  
 
            Under the circumstances presented here, a rigid 
 
            interpretation of rule 4.8(2)(h) does nothing to further the 
 
            purpose of the rule, rather it traps a pro se claimant.  
 
            "Courts to do not favor the defense of statute of 
 
            limitations."  Sprung v. Rasmussen, 180 N.W.2d 430, 433 
 
            (Iowa 1970), Vermeer v. Sneller, 190 N.W.2d 389, 394 (Iowa 
 
            1971).  
 
            It is determined that claimant has shown good cause why the 
 
            industrial commissioner should modify the time to comply 
 
            with rule 4.8(2)(h) which requires claimant's application 
 
            for deferral to accompany claimant's original notice and 
 
            petition.  In this case, claimant's original notice and 
 
            petition is considered timely filed on August 30, 1990, the 
 
            date which claimant's original notice and petition was 
 
            received.  
 
            WHEREFORE, the decision of the deputy is reversed and 
 
            remanded.
 
            THEREFORE, it is ordered that this case is placed back into 
 
            assignment for prehearing.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau St.
 
            Keokuk, Iowa 52632
 
            
 
            Ms. Marie L. Welsh
 
            Attorney at Law
 
            PO Box 515
 
            Dept. #41
 
            Dakota City, Nebraska 68731
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2906
 
            Filed October 21, 1991
 
            Byron K. Orton
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            HAYDEN WATTS (DEC) by     :
 
            JOLIENE WATTS-wife,       :
 
		                      :      File No. 898366
 
                 Claimant, 	      :
 
		                      :        A P P E A L
 
		            vs.       :
 
                		      :      D E C I S I O N
 
            IBP, INC.,  	      :
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ____________________________________________________________
 
            _____
 
            
 
            2906
 
            The sole issue on appeal is whether defendant's motion for 
 
            summary judgment should be granted.  Held that a genuine 
 
            issue of material fact exists in this case which makes 
 
            summary judgment improper.  Claimant filed an affidavit 
 
            attesting that she filed her original notice and petition on 
 
            August 30, 1990.  Defendant asserts that claimant's original 
 
            notice and petition was not filed until September 24, 1990.  
 
            If claimant filed her petition on August 30, 1985 it was 
 
            timely filed.  On the other hand, if claimant filed her 
 
            petition on September 24, 1990 it was not timely filed.  
 
            Therefore a genuine issue of material fact exists.
 
            In this case, it was determined that claimant filed her 
 
            original notice and petition on August 30, 1990.  On the 
 
            back of claimant's original notice and petition filed on 
 
            August 30, 1990, claimant writes that she lives on social 
 
            security benefits and cannot afford to pay the filing fee.  
 
            This appears to be a request for a deferral of the filing 
 
            fee.  This request for deferral did not, however, comply 
 
            with rule 343 IAC 4.8(2)(h).  Under the circumstances 
 
            presented here, a rigid interpretation of rule 4.8(2)(h) 
 
            does nothing to further the purpose of the rule, rather it 
 
            traps a pro se claimant.  Pursuant to rule 343 IAC 2.1, it 
 
            is determined that claimant has shown good cause why the 
 
            industrial commissioner should modify the time to comply 
 
            with rule 4.8(2)(h).  In this case, claimant's original 
 
            notice and petition is considered timely filed on August 30, 
 
            1990.
 
            
 
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            HAYDEN JASPER WATTS 
 
            (Deceased) by JOLIENE WATTS   
 
            (Spouse),                            File No. 898366
 
                      
 
                 Claimant, 
 
                                                D E C I S I O N
 
            vs.       
 
                                                      O N
 
            IBP, INC.,     
 
                                                   D E A T H
 
                 Employer, 
 
                                                B E N E F I T S
 
                      
 
            ------------------------------------------------------------
 
            
 
            
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceeding for death benefits which was filed 
 
            by Joliene Watts, claimant, who is the spouse of decedent 
 
            Hayden Jasper Watts, and against the decedent's employer, 
 
            IBP, inc., defendant. The case was heard on January 12, 1994 
 
            at the Des Moines County Courthouse in Burlington, Iowa.  
 
            The record consists of the testimony of claimant.  
 
            Additionally, the record consists of the testimony of David 
 
            Springer, security guard for defendant's Columbus Junction 
 
            plant, the testimony of Otis Pettit, former trainer for 
 
            defendant, and the testimony of Terry Zimmerman, medical 
 
            case manager for the Columbus Junction plant.  The record 
 
            also consists of joint exhibits A-O.
 
            
 
                           STATEMENT OF THE ISSUES
 
            
 
                 The issues to be determined are:  1) whether decedent's 
 
            death arose out of and in the course of his employment; 2) 
 
            whether death benefits are appropriate in this case; and 3) 
 
            whether claimant is entitled to funeral expenses for the 
 
            burial of decedent.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Decedent died on August 31, 1988.  At the time, he was 
 
            43 years old.  He was married to claimant and he had three 
 
            minor children.
 
            
 
                 The records indicate that on August 16, 1988, decedent 
 
            went to see M.F. Austin, M.D.  There were complaints of 
 
            chest pain.  The physician's clinical notes stated:
 
            
 
                    The patient is a 43-year old white male who 
 
                 comes in now with a complaint of chest pain.
 
            
 
                    The patient states that two months he had a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 heavy chest pressure in the center of his chest 
 
                 which made it difficult to breathe.  He believes 
 
                 it came on at rest but he is not certain and it 
 
                 went away.
 
            
 
                    He has seen Dr. Lee in the past and the chest 
 
                 pain has become more frequent and he comes in now 
 
                 to be evaluated for the chest pain.
 
            
 
                    As noted above he was seen when he had chest 
 
                 pain two months ago but starting on Sunday he 
 
                 developed pain with exertion.  Since Sunday 
 
                 whenever he exerts himself and walks more than 
 
                 three or four blocks he gets a heavy sharp pain in 
 
                 the chest which he will not describe as pressure 
 
                 and the pain radiates from the substernal area up 
 
                 to his neck and produces numbness in his left arm, 
 
                 shortness of breath and diaphoresis.  If he then 
 
                 rests he has no further problems.  Normally he 
 
                 works in building construction but he is between 
 
                 jobs so he did not carry out his normal job 
 
                 yesterday or today.
 
            
 
                    He has a positive family history with a brother 
 
                 having died from a heart attack at age 48.  His 
 
                 father died of a heart attack at age 60.
 
            
 
                    PMH- Otherwise unremarkable.  He's had two 
 
                 biopsies of subcutaneous skin lesions which sound 
 
                 like lipomas.
 
            
 
                    He smokes 1 1/2 packs of cigarets [sic] per day 
 
                 and has for 30 years.  He drinks four bottles of 
 
                 beer per day and over six cups of coffee.  His 
 
                 social    and family history is otherwise 
 
                 unremarkable.
 
            
 
                    ROS-Noncontributory.
 
            
 
                    On exam he is a well muscled white male 
 
                 appearing his stated age.  Skin without cyanosis 
 
                 or jaundice. HENT exam unremarkable.  Neck supple. 
 
                 No thyroidomegaly, no clinically significant 
 
                 lymphadenopathy.  Lungs clear to A & P except for 
 
                 diffuse wheezing on expiration and a slight 
 
                 prolongation of the expiratory phase.  Cardiac 
 
                 exam showed no JVD, no carotid bruits, no HJR. S1 
 
                 and S2 were normal.  There were no murmurs, rubs 
 
                 of gallops.  Abdomen was tender in the epigastrium 
 
                 but otherwise benign.  Extremities showed no 
 
                 edema.        Neurological exam showed no focal 
 
                 deficits.
 
            
 
                 I.  1.  Chest pain rule out coronary artery 
 
                 disease.
 
            
 
                 2.  Shortness of breath with wheezing ? COPD with 
 
                 bronchospasm.
 
            
 
                 3.  Epigastric tender ? ulcer disease/gastritis.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                    The patient was sent for routine labs and 
 
                 pulmonary function test and treadmill.  In 
 
                 addition he was started on the following 
 
                 medications:
 
            
 
                 1.  Nitroglycerin SL prn if chest pain is not 
 
                 relieved after three nitroglycerins call 
 
                 paramedics and go to E.R.
 
            
 
                 2.  Nifedipine 10mg p o t. i. d.
 
            
 
                 3.  Pepsid 40mg p o q h.s.
 
            
 
                    The patient was also instructed to limit his 
 
                 smoking to one half pack of cigarets [sic] per 
 
                 day, decrease his coffee intake to two cups per 
 
                 day and to hold his alcohol intake to no more than 
 
                 two hours per day. 
 
            
 
                    These instructions will be in place until the 
 
                 patient seems [sic] in followup.
 
            
 
            (Exhibit A-1).
 
            
 
                 Decedent was scheduled for a second appointment on 
 
            August 23, 1988.  However, he failed to keep that 
 
            appointment.
 
            
 
                 Decedent had a complete pulmonary function exam on 
 
            August 19, 1988.  T. Hakes, M.D., interpreted the tests.  
 
            The physician opined:
 
            
 
                 INTERPRETATION:  Screening PFT compatible with 
 
                 obstructive airways disease which is mild to 
 
                 moderate. Most impairment is in the small airways.  
 
                 There is slight improvement after the 
 
                 administration of bronchodilator.
 
            
 
                 On August 24, 1988, decedent completed a medical 
 
            history questionnaire as a pre-employment requirement for 
 
            defendant.  Decedent indicated on the face of the 
 
            questionnaire that he did not have heart disease, that he 
 
            had never had any prior chest pains, that he had never 
 
            contacted a physician concerning any chest pains, and that 
 
            he had not seen a physician for the past six months.  
 
            (Exhibit F-2, F-3)  These statements were made contrary to 
 
            the truth.
 
            
 
                 On August 26, 1988, decedent again met with Dr. Austin.  
 
            The office notes indicated the following relative to 
 
            decedent's condition:
 
            
 
                   This patient is a 43 year old white male who I 
 
                 saw last week for evaluation of chest pain and 
 
                 S.O.B.
 
            
 
                    His evaluation included PFT's which showed 
 
                 obstructive way disease responsive to 
 
                 bronchodialator. His treadmill stress test was 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 negative.  Routine labs showed a mild 
 
                 hypercholesterolemia with a cholesterol of 238.  
 
                 His resting EKG was normal.
 
            
 
                    His epigastric pain has responded to decreasing 
 
                 coffee and alcohol.
 
            
 
                 IMPRESSION:
 
            
 
                 1.  COPD with bronchospasm.
 
            
 
                 2.  Hypercholesterolmia.
 
            
 
                    The patient was started on Albuterol inhaler 
 
                 two puffs q.i.d., Theolair SR 200mg p.o.b.i.d. and 
 
                 a low cholesterol diet.  He will followup with me 
 
                 in six weeks.  If this medications give him any      
 
                 complications he will call in.  He will otherwise 
 
                 have prescriptions phoned in when his samples run 
 
                 out.
 
            
 
                    He may need a tetnus booster for a job.  He is 
 
                 going to start working Saturday.  If he does he 
 
                 will call the office about getting tetanus shot.
 
            
 
            (Exhibit A-2).
 
            
 
                 Decedent commenced his employment with defendant on 
 
            August 27, 1988.  Initially, claimant participated in an 
 
            orientation program.  However, on August 31, 1988, claimant 
 
            was assigned to perform duties in the trolley room.  
 
            Claimant worked the second shift which began at 4:00 p.m., 
 
            and ended at midnight.  
 
            
 
                 Floyd Nott began training claimant to watch the line of 
 
            hog hooks as they traveled on the trolley.  Mr. Nott 
 
            testified all claimant had to do was to watch the trolley 
 
            line and to pick up any hooks which would fall from the 
 
            line. (Exhibit M-7)  From approximately 5:30 p.m. until 7:45 
 
            p.m., there was a power outage at the Columbus Junction 
 
            plant. (Exhibit E)  The record establishes that the 
 
            temperature high for that date was 83 degrees.  (Exhibit 
 
            N-2)
 
            
 
                 After the power was restored, Mr. Nott left the trolley 
 
            room so he could take his fifteen minute coffee break in the 
 
            employee lounge.  He testified he left decedent alone for 
 
            approximately fifteen minutes but then when he attempted to 
 
            return to his work station, he was unable to do so, as 
 
            someone in the plant had found decedent lying dead on the 
 
            floor of the trolley room.  Decedent was discovered at 
 
            approximately 8:35 p.m.
 
            
 
                 An ambulance and paramedics were called to the plant 
 
            site.  Emergency resuscitation was attempted but with no 
 
            success.  Eventually, Curtis Frier, D.O., medical examiner 
 
            was called to the plant.  He received his telephone call at 
 
            approximately 9:40 p.m.  Dr. Frier testified by deposition 
 
            that:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    When I got there the deceased was laying on a 
 
                 back board.  The ambulance personnel had attempted 
 
                 resuscitation, apparently before I arrived.
 
            
 
                    ....
 
            
 
                    He was found lying on his back board, as I 
 
                 previously stated.  He was breathless, pulseless, 
 
                 his pupils were fixed and dilated, his face was 
 
                 dusky, cyanotic, there was small amount of blood 
 
                 noted on his left nostril, there was small 
 
                 abrasion with slight amount of blood on his right 
 
                 elbow, his shirt was unbuttoned on the front, 
 
                 pants were on, belt was buckled, his body was 
 
                 greasy or oily, but the entire room was greasy or 
 
                 oily.
 
            
 
                 
 
            
 
                    There was no evidence of abrasions or 
 
                 contusions on his head, face or neck.  No wounds 
 
                 were noted on his chest or on his abdomen or  his 
 
                 back.  He was noted to have multiple tattoos on 
 
                 his arm, and he was lying between two tanks 
 
                 separated by 15, 29 feet in the trolley room.
 
            
 
            (Exhibit K- )
 
            
 
                 Dr. Frier completed the death certificate.  He listed, 
 
            "acute pulmonary edema" as the cause of death.  (Exhibit 
 
            K-9) During cross examination, the medical examiner 
 
            elaborated:
 
            
 
                 Q  Doctor, have you arrived at an opinion of the 
 
                 cause of death of Mr. Watts based upon your review 
 
                 of the autopsy and your investigation?
 
            
 
                 A  It was a sudden event, whatever was the 
 
                 trigger.  His whole body was congested, which 
 
                 would speak of a process not only in the lungs but 
 
                 of the heart suffering acute congestive failure 
 
                 during the  process. 
 
            
 
                 He had a blood clot in his coronary artery that 
 
                 was not a new blood clot.  It was already 
 
                 organized, it was there prior to the event.  
 
                 However, he did not show signs of muscle damage, 
 
                 so my guess would be that at least contributing to 
 
                 it would have been a lack of oxygen to the heart, 
 
                 spasm in the coronary artery long enough to cause 
 
                 fibrillation.  But we cannot completely rule out a 
 
                 combination of lung and cardiac involvement.
 
            
 
                 Q  Is it fair to state that he died of natural 
 
                 causes not related to work at IBP?
 
            
 
                 A  It was definitely natural causes.
 
            
 
            (Exhibit K-13-K-14). 
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Min Chung, M.D., conducted an autopsy of decedent's 
 
            body on September 1, 1988.  The autopsy was conducted at the 
 
            Keokuk Area Hospital.  Dr. Chung completed an autopsy 
 
            report.  In the report the pathologist made the following 
 
            pathologic diagnoses:
 
            
 
                 Hypoplastic coronary arteries with moderate 
 
                 atherosclerosis and thrombosis of the left 
 
                 anterior descending branch of the left coronary 
 
                 artery.
 
            
 
                 Myocardial hypertrophys (cardiomegaly), 480 gm (N: 
 
                 Mean-373; Range- 304-392).
 
            
 
                   -Hypermia of the face, neck, and anterior chest 
 
                 wall, severe (photo).
 
            
 
                   -Visceral congestion and/or edema, moderate to 
 
                 severe:  both lungs (photo), gastrintestinal 
 
                 tract, liver, spleen, pulmonary hilar and 
 
                 peribronchial lymph nodes, right kidney, right 
 
                 adrenal, thyroid and brain.
 
            
 
                   -Pulmonary intra-alveolar hemorrhage, bilateral, 
 
                 mild.
 
            
 
                 Atherosclerosis of the aortic valve, mild; and 
 
                 aorta, mild to moderate.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Agenesis of the left kidney and left adrenal 
 
                 gland, and compensatory hypertrophy of the right 
 
                 kidney.
 
            
 
                 Abrasion of the right elbow.
 
            
 
                 Livor mortis of enterior dorsal aspect of the body 
 
                 surface.
 
            
 
                 Rigor mortis of the entire body including all 
 
                 articular joints of four extremities.
 
            
 
                 NOTE:  In my opinion, hypoplastic coronaries with 
 
                 atherosclerosis and thrombosis of the left 
 
                 anterior descending branch, and cardiomegaly are 
 
                 significant findings which are related to Mr. 
 
                 Watts' immediate cause of death; and other 
 
                 findings including the clinical laboratory test 
 
                 results are contributory or less significant 
 
                 factors.  Estimated time between his death and the 
 
                 autopsy is 6 to 12 hours based on rigor mortis.  
 
                 The pathologist did not perform a scene 
 
                 investigation.
 
            
 
                 ....
 
            
 
                 myocardium   mild to moderately congested.  No                         
 
                 evidence of acute myocardia infarct.
 
            
 
                 ....
 
            
 
                 Valves    Aortic valve mildly sclerotic.
 
            
 
                 Coronary arteries  Lumina of the left and right 
 
                 coronaries very narrow and wall partially 
 
                 calcified (needed decalcification for sectioning).                     
 
                 Organized thrombus and narrow lumen                        
 
                 (50%) of LAD.
 
            
 
                 Left and right coronaries 
 
            
 
                          [t]hin and wall moderately sclerotic.  
 
                 LAD                beginning area has a small 
 
                 blood clot.
 
            
 
                 DIAGNOSES
 
            
 
                   - Hypoplastic coronary arteries with moderate              
 
                 atherosclerosis and thrombosis of the LAD.
 
            
 
                    - Myocardial hyper trophy (carduimegaly), 480 
 
                 gm (N:     Mean-373:  Range-304 to 392).
 
            
 
                   - Atherosclerosis of the aortic valve, mild.
 
            
 
                 ....
 
            
 
                 LUNGS
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Combined weight 1850 gm (N:  Mean-825; Range-685 
 
                 to 1050). Surface brown to purple, cut surfaces 
 
                 purple, and entire lung wet.  Small vesicles on 
 
                 the lung surface.
 
            
 
                 All lobes show sever vascular congestion, and mild 
 
                 intra-alveolar hemorrhage and edema.  Alveoli 
 
                 contain small number of pigmented macrophanges.  
 
                 Occasional alveolar septa destroyed.  Bronchus and 
 
                 peribronchial lymph node also markedly congested.
 
            
 
                 DIAGNOSES
 
            
 
                  -Pulmonary congestion, bilateral, severe (photo).
 
            
 
                  -Pulmonary intra-alveolar hemorrhage and edema, 
 
                 mild.
 
            
 
            (Ex. C-1; C-5).
 
            
 
                 In the  fall of 1993, various records were forwarded to 
 
            Jay Dix, M.D., a board certified pathologist in anatomic and 
 
            forensic pathology.  The physician authored a report, dated 
 
            November 21, 1993.  He opined in that report:
 
            
 
                 OPINION:
 
            
 
                    Mr. Hayden [sic] died suddenly due to heart 
 
                 disease and not from a noxious chemical substance.  
 
                 There is no anatomic or scene evidence to suggest 
 
                 cadmium or some other chemical as a cause.
 
            
 
                    The presence of heart disease, especially on 
 
                 organizing thrombus (blood clot) in the coronary 
 
                 artery, and the absence of other diseases or 
 
                 drugs/chemicals reveals the cause of death to be 
 
                 heart related.  Mr. Hayden [sic] died from an 
 
                 arrhythmia complicating his underlying heart 
 
                 disease.  The thrombus is a build up off [sic] 
 
                 material that plugs up the coronary artery which 
 
                 feeds the heart muscle blood and oxygen.  This 
 
                 thrombus appears to be approximately 3 or 4 days 
 
                 old at a minimum. 
 
            
 
                     Mr. Hayden [sic] had a history of chest pain 
 
                 which may have been caused by the underlying heart 
 
                 disease.  A negative tread mill test does not 
 
                 preclude heart disease as a cause of sudden death.  
 
                 It is not uncommon for a person to receive a 
 
                 "clean bill of health" from a physician only to 
 
                 die suddenly of heart disease a short time after 
 
                 the examination.  Forensic pathologists like 
 
                 myself, see this not uncommonly.
 
            
 
                    People with heart disease as seen in Mr. Hayden 
 
                 [sic] are prone to die suddenly at any time.  
 
                 However, in my experience, people with this type 
 
                 of disease are prone to have arrhythmias and 
 
                 sudden death when they are in a stressful; 
 
                 situation.  If Mr. Hayden [sic] was in a 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 non-stressful work situation then his death would 
 
                 be considered natural and not work related.  On 
 
                 the other hand, if he were working in a stressful 
 
                 environment his death would be work related and an 
 
                 accident.
 
            
 
                    I was asked to comment about whether or not a 
 
                 high environmental temperature would be considered 
 
                 stressful.  I believe a high temperature would be 
 
                 stressful if the person was not used to working in 
 
                 such conditions.  Mr. Hayden [sic] had worked for 
 
                 only 4-5 days at this job.  With his heart 
 
                 condition, a temperature over a hundred degrees 
 
                 would cause him stress.  [T]he heart beats faster 
 
                 to dissipate the heart.  This could also be 
 
                 compounded if he didn't drink enough water and 
 
                 became dehydrated, causing his heart to work even 
 
                 harder.  A diseased heart, working harder, may 
 
                 develop an arhythmia, causing sudden death.
 
            
 
                    My final opinion is that Mr. Hayden died of 
 
                 heart disease.  A room temperature of  over 100 
 
                 degrees Fairenheit would be a contributing factor 
 
                 in his death.  I can't give a percentage of 
 
                 contribution, but any contribution is significant.
 
            
 
            (Ex. J-1-J-2)
 
            
 
                 After Dr. Dix completed the aforementioned report, his 
 
            deposition was given.  He provided his opinion relative to 
 
            the cause of decedent's death:
 
            
 
                 Q.  And what did you determine then from reviewing 
 
                 that the cause of death to be?
 
            
 
                 A.  Well, I then would look at the autopsy 
 
                 reports.  [A]lso looked at the slides in this case 
 
                 as well.
 
            
 
                 Q.  What did those reveal to you?
 
            
 
                 A.  Well, they revealed a man that had basically 
 
                 some pulmonary edema or fluid on the lungs and his 
 
                 underlying problem which is his heart disease.  He 
 
                 had an enlarged heart and he had abnormalitites 
 
                 specifically atherosclerosis of his coronary 
 
                 arteries with a recent thrombosis or blood clot in 
 
                 the coronary artery.
 
            
 
                 Q.  Okay.  When cause of death then is listed as 
 
                 pulmonary edema that is ultimately, I guess, what 
 
                 killed him but--
 
            
 
                 A.  No, that's not what killed him.
 
            
 
                 Q.  I'm sorry.  What then would it be?
 
            
 
                 A.  He died of his heart disease.
 
            
 
                 Q.  Okay.  The fluid on the lungs, I guess, is 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 just a result of the heart disease then?
 
            
 
                 A.  Well, it was a result of the agonal state that 
 
                 he was in.  I don't think he died specifically of 
 
                 pulmonary edema.  He had pulmonary edema but that 
 
                 came about from the dying process.
 
            
 
                 Q.  Was that blood that got in there then or what 
 
                 kind of fluid?
 
            
 
                 A.  Well, edema fluid is usually clear fluid.  
 
                 It's in the blood system or in the cells in the 
 
                 body and it leaks out of the blood vessel system 
 
                 and goes into the lungs.
 
            
 
                 Q.  You mentioned then the thrombosis or I believe 
 
                 in your November 21st report you typed up 
 
                 thrombus.  Could you explain what that is?
 
            
 
                 A.  A thrombus is a blood clot that happens from a 
 
                 buildup of and a sludging of the blood within a 
 
                 blood vessel.  This one happened to be there for a 
 
                 few days.
 
            
 
                 Q.  Your report I believe says it was there 
 
                 approximately three or four days old at a minimum.  
 
                 Could you give any kind of a maximum or any time 
 
                 frame there, I guess, of how old that may have 
 
                 been?
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 A.  I don't know that I could give a maximum.  
 
                 That is very difficult to do that when you are 
 
                 looking at thrombi.  I feel comfortable that it 
 
                 was three or four days minimum but I can't tell if 
 
                 it's been there a week or nine days or ten days.  
 
                 It's just -- it's impossible for me to tell that.
 
            
 
            (Ex. L-6-L-7).
 
            
 
                 Later in his deposition, Dr. Dix discussed the role of 
 
            one's work environment on a person with heart disease.  Dr. 
 
            Dix testified that:
 
            
 
                 Q.  You had-- I believe, in your concluding 
 
                 statement in your report you mentioned that-- 
 
                 talking about the stressful situation or possible 
 
                 stressful situation.  I wanted to get into that a 
 
                 little bit more now if I could.
 
            
 
                 A.  Yes.
 
            
 
                 Q.  You mentioned a high temperature would be 
 
                 stressful, could be a stressful situation that 
 
                 could cause the onset of this type of  condition.
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Any--is there-- I believe you said over 100 
 
                 degrees Farenheit [sic] and on down in the final 
 
                 paragraph.
 
            
 
                 A.  Yes.  I was asked-- since it's not in the 
 
                 reports necessarily I was asked specifically if 
 
                 that might be a contributing factor and it was my 
 
                 opinion, still is, that if someone was in an 
 
                 environment that was unusual for that person, 
 
                 specifically if it was too hot then that might be 
 
                 a stressful factor and in my opinion if they were 
 
                 not used to that plus having an underlying heart 
 
                 disease that would have been a contributing 
 
                 factor.  I can't tell you exactly what percentage 
 
                 would have been a contributing factor.  It could 
 
                 be 50 percent or 1 percent.  I just don't know.
 
            
 
                 Q.  What were some of the others?  You said any 
 
                 contribution would be significant.  What were some 
 
                 other significant factors in this case?  
 
            
 
                 A.  Well, the most significant factor is his 
 
                 underlying heart disease.  Then there are 
 
                 essentially no other significant factors unless 
 
                 there is something at the workplace that might 
 
                 have caused his stress.
 
            
 
                 Q.  When you talk about a hundred degrees that 
 
                 would be, I guess, regardless of whether he was 
 
                 working or not working?  Would that make any 
 
                 difference at all?  I mean, if he was sitting out 
 
                 in a hundred degree weather outside would that be 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 a stressful factor also?
 
            
 
                 A.  Well, I believe that if he is not used to it 
 
                 then it would be stressful but I certainly would 
 
                 believe that if he were working at the time and-- 
 
                 which causes an increase in heart rate just by the 
 
                 work itself that would be more stressful.
 
            
 
            (Ex. L11-12).
 
            
 
                 Later Dr. Dix elaborated upon questioning:
 
            
 
                 Q.  I'm sorry, I didn't state that question very 
 
                 well.  Anything about Mr. Watt's condition other 
 
                 than the underlying heart condition that struck 
 
                 you as unusual about the results of the autopsy?
 
            
 
                 A.  Other than the heart disease I don't see 
 
                 anything in the autopsy report which would lead me 
 
                 to believe that he might have died from anything 
 
                 else or that there was something there that would 
 
                 have caused an exacerbation of his problem.
 
            
 
            (Ex. L-14).
 
            
 
                 Dr. Dix also testified that decedent's death was 
 
            sudden.  The pathologist defined his understanding of 
 
            "sudden death."
 
            
 
                 He stated:
 
            
 
                 A.  Yes, at least sudden in the respect that the 
 
                 man was found dead.  Now, sudden means different 
 
                 things to different people.  Certainly in that 
 
                 span that he was not seen I don't know if he had 
 
                 any signs or symptoms of anything going on but in 
 
                 that particular time frame I would classify that 
 
                 as sudden death.
 
            
 
                 Q.  Is this uncommon for people who are diagnosed 
 
                 two weeks earlier that at least without signs of 
 
                 heart disease to have a sudden onset of this? 
 
            
 
                 A.  No, it's not uncommon for me to do an autopsy 
 
                 on a person that has recently had a physical exam 
 
                 and the physician gave them the "clean bill of 
 
                 health".
 
            
 
                 Q.  And what generally would bring on, if you can 
 
                 give me kind of a whole range of things that would 
 
                 bring on a sudden heart attack?
 
            
 
                 A.  Well, the most important thing would be stress 
 
                 as far as some other factor.  It's probably safe 
 
                 to say that most people who die suddenly though do 
 
                 not die under stressful circumstances but anything 
 
                 of stress can certainly bring about the problem 
 
                 just as readily as a non-stressful circumstance.  
 
                 We talked a little bit about the possibility of a 
 
                 hot environment.  What is in a hot environment 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 that would bring on a sudden heart attack?  
 
            
 
                 A.  Well, a hot environment I consider a stress in 
 
                 that the person is trying to cool down the body 
 
                 and by doing so may raise the rate, heart rate, 
 
                 and any time you raise the heart rate you are -- 
 
                 can be prone to a sudden death.  
 
            
 
            (Ex. L-16-L-17).
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially 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 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 When an aggravation occurs in the performance of an 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Iowa claimants with preexisting circulatory or heart 
 
            conditions are permitted, upon proper medical proof, to 
 
            recover workers' compensation benefits where the employment 
 
            contributes something substantial to increase the risk of 
 
            injury or death.  The employment contribution must take the 
 
            form of an exertion greater than nonemployment life.  Sondag 
 
            v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
            comparison, however, is not with the employee's usual 
 
            exertion in employment, but with exertions of normal 
 
            nonemployment life of this or any other person.  Sondag, 220 
 
            N.W.2d at 905.  These exertions may be physical or 
 
            emotional.  Swalwell v. William Knudson & Son, Inc., II Iowa 
 
            Industrial Commissioner Report 385 (App. 1982).  The Sondag 
 
            rule is favored by Professor Larson in his treatise on 
 
            workers' compensation.  See 1A Larson Workmen's Compensation 
 
            Law,  38.83 at 7-172.  According to Professor Larson, the 
 
            causation test is a two-part analysis.  First, medical 
 
            causation must be established.  That is, medical experts 
 
            must causally relate the alleged stress, whether emotional 
 
            or physical, to the heart injury.  Second, legal causation 
 
            must be established.  That is, the factfinder must determine 
 
            whether the medically-related stress is more than the stress 
 
            of everyday nonemployment life.
 
            
 
                 Claimant must satisfy both a legal test and a medical 
 
            test in order to prove that a heart attack superimposed upon 
 
            a preexisting condition arose out of and in the course of 
 
            claimant's employment.  The legal test can be satisfied by 
 
            meeting one of three legal standards:  work exertion greater 
 
            than nonemployment life; work exertion greater than normal 
 
            work exertion; or employee impelled to continue exertion 
 
            after the onset of symptoms.  Bailey v. Moorhead 
 
            Construction Co., File no. 872710, Appeal Dec. July 27, 
 
            1992; Peterson v. Lloyd R. Warren d/b/a Warren Masonry, File 
 
            No. 981365 App. Dec. June 30, 1993.
 
            
 
                 In Peterson, supra, the industrial commissioner held 
 
            that decedent's death was not work related.  The industrial 
 
            commissioner determined decedent's death did not meet the 
 
            "legal test" which was described in the aforementioned 
 
            paragraph.  Peterson had experienced angina symptoms on two 
 
            nonwork days just prior to the fatal attack.  Additionally, 
 
            decedent was overweight, a heavy smoker, had a history of 
 
            heart trouble, consumed extraordinary quantities of Tylenol, 
 
            Rolaids and soda pop, and he experienced the attack before 
 
            commencing work again.  The commissioner found that 
 
            decedent's work of laying brick did not cause greater 
 
            exertion than normal nonemployment activities.  In Peterson 
 
            a brick tender  handed the bricks to decedent, decedent 
 
            worked in a heated winter environment.  Additionally, the 
 
            commissioner determined that the medical opinion which 
 
            causally connected decedent's fatal heart attack to his work 
 
            was based on incorrect assumptions and therefore the" 
 
            medical test" was not met.
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 In the instant case, decedent died of preexisting heart 
 
            disease.  The facts indicate decedent had been experiencing 
 
            chest pains two weeks prior to his employment with this 
 
            defendant.  Decedent was a smoker and he consumed alcohol.  
 
            Heart disease was prevalent in his family.  He had been on 
 
            medication for his heart disease.  Decedent did not keep all 
 
            medical appointments with his physician.  All medical 
 
            evidence supports the conclusion that claimant died of his 
 
            preexisting condition.  There was insufficient reliable 
 
            medical evidence to find a causal connection between 
 
            decedent's work exertion and his death.
 
            
 
                 Even Dr. Dix testified that claimant died of heart 
 
            disease.  (l-6)  While Dr. Dix opined that certain stressful 
 
            conditions in the work environment could have some effect 
 
            upon claimant's preexisting condition, there was no factual 
 
            evidence to support a finding that the temperature was 
 
            excessive, that the inside environment was humid, or that 
 
            improper ventilation existed in the building.  Dr. Dix's 
 
            opinions regarding possible stressful factors were based on 
 
            erroneous assumptions concerning the work environment on the 
 
            day in question.  The evidence does not support the 
 
            allegations of a stressful environment.
 
            
 
                 There was no evidence that decedent's work exertions on 
 
            the date of his death were greater than nonemployment life; 
 
            or that his work exertions were greater than normal work 
 
            exertions.  At the time of his death, decedent was observing 
 
            hooks travel on the trolley.  Only several times per hour 
 
            was he required to hang hooks which had fallen from the 
 
            trolley.   Finally, decedent died almost immediately.  There 
 
            is no evidence whatsoever that decedent continued working 
 
            after he experienced symptoms.  
 
            
 
                    The legal test has not been met.  Nor has the 
 
            medical test been met.  Claimant has failed to establish 
 
            that decedent's death arose out of and in the course of 
 
            claimant's employment.
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                                    ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Each party shall pay the costs the party has incurred 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr John Kultala
 
            Attorney at Law
 
            P O Box 520
 
            Keokuk IA 52632
 
            
 
            Mr John M Comer
 
            Attorney at Law
 
            P O Box 515  Dept #41
 
            Dakota City NE 68731
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1400; 2202; 2601.10
 
                                               Filed August 23, 1994
 
                                               Michelle A. McGovern
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            HAYDEN JASPER WATTS 
 
            (Deceased) by JOLIENE WATTS   
 
            (Spouse),                          File No. 898366
 
                      
 
                 Claimant, 
 
                                              D E C I S I O N
 
            vs.       
 
                                                     O N
 
            IBP, INC.,     
 
                                                  D E A T H
 
                 Employer, 
 
                                               B E N E F I T S
 
                      
 
            ------------------------------------------------------------
 
            
 
            
 
            1400; 2202; 2601.10
 
            Decedent was a 43-year-old male with heart disease.  Two 
 
            weeks prior to the commencement of his employment with 
 
            defendant, decedent sought medical treatment for chest 
 
            pains.  He was diagnosed as having heart disease, and 
 
            medication was prescribed.  Decedent was advised to stop 
 
            smoking and to decrease his alcohol and coffee intake.
 
            On the fourth day of his employment, claimant was observing 
 
            hooks travel across the trolley system.  He was alone for 
 
            approximately 15 minutes.  During this time, decedent died.
 
            The evidence supports the conclusion that decedent died of 
 
            the preexisting condition.  There was insufficient medical 
 
            evidence to find a causal connection between decedent's work 
 
            exertion and his death.
 
            Held:  Claimant was unable to prove that death benefits were 
 
            appropriate in this case.