5-1800
 
                      Filed July 18, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHIRLEY M. LOCHNER, :
 
                      :
 
                 Claimant, :
 
                      :      File Nos. 931369
 
            vs.       :                931370
 
                      :                931371
 
            CHEROKEE MENTAL HEALTH   :
 
            INSTITUTE,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant, 52 years old, works at the Cherokee Mental Health 
 
            Institute.  She sustained a compensable injury to her neck, 
 
            and was given a five percent functional impairment rating.
 
            The employer has continually made accommodations for her 
 
            restrictions (no lifting of more than 25 pounds) and she has 
 
            continued to receive above average appraisals and merit 
 
            increases.
 
            Claimant awarded 15 percent industrial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed July 18, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SHIRLEY M. LOCHNER, :
 
                      :
 
                 Claimant, :
 
                      :      File Nos. 931369
 
            vs.       :                931370
 
                      :                931371
 
            CHEROKEE MENTAL HEALTH   :
 
            INSTITUTE,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant, 52 years old, works at the Cherokee Mental Health 
 
            Institute.  She sustained a compensable injury to her neck, 
 
            and was given a five percent functional impairment rating.
 
            The employer has continually made accommodations for her 
 
            restrictions (no lifting of more than 25 pounds) and she has 
 
            continued to receive above average appraisals and merit 
 
            increases.
 
            Claimant awarded 15 percent industrial disability.
 
            
 
 
            
 
   
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            MARVIN E. KAHLER,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 931376
 
            HY-VEE FOOD STORES,   
 
                                                A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 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.
 
            
 
                                    ISSUES
 
            
 
            The issue on appeal is whether claimant's cerebral vascular 
 
            accident (stroke) on December 25, 1989 arose out of and in 
 
            the course of his employment.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed October 2, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 Claimant is a 61-year-old high school graduate.  
 
            Claimant described his work history prior to becoming 
 
            employed for Hy-Vee Food Stores in 1988.  From 1960 to 
 
            approximately 1988, claimant worked for Continental Bakery 
 
            as a sales representative, in the bread department and in 
 
            the cake department.  He retired from Continental in 1988.  
 
            After his retirement, claimant then began work for defendant 
 
            employer in 1988 in the frozen foods department and 
 
            eventually as a night stocker and then ultimately in the 
 
            maintenance department cleaning and caring for the floors, 
 
            lunch rooms, rest rooms, etc.
 
            
 
                 Claimant said he had no pre Hy-Vee accidents.  He 
 
            indicated he had high blood pressure that began around one 
 
            or two years before his retirement from Continental and that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            at the time of his alleged December 24, 1989 injury, he was 
 
            taking approximately one-half pill a day to control his 
 
            blood pressure.  Claimant emphasized he was having no 
 
            problems as to his blood pressure on December 24, 1989.  
 
            *****  Claimant indicated he never had any workers' 
 
            compensation or other claims filed.
 
            
 
                 Claimant related that on December 24, 1989, at 
 
            approximately 11:00 p.m., he was to clean and apply an epoxy 
 
            on certain parts of the floor at defendant employer's store.  
 
            This particular date was picked because most of the stockers 
 
            were to have been off the premises and there would not be 
 
            anyone walking on the particular floors that were to be 
 
            cleaned and epoxy applied.  Claimant indicated that the 
 
            epoxying of the floors was discussed and he was told that 
 
            the sales representative was to come and tell him how to 
 
            apply it.  Claimant said the representative, Mr. McManus, 
 
            never did come and tell him how to apply the epoxy.  
 
            Claimant said he had never worked with epoxy before and that 
 
            approximately three days before he read about the epoxy and 
 
            the procedure.  Claimant indicated that he would pour the 
 
            two mixtures together and then it would be applied to the 
 
            floor with a roller.  Claimant identified in court the two 
 
            particular mixtures that were mixed together.  Those two 
 
            mixtures were not offered or admitted into evidence.
 
            
 
                 Claimant explained the area where he was to apply the 
 
            epoxy.  ***** [He testified] that there was no windows to 
 
            open and that the weather was very cold, there were no 
 
            drafts and no air being exchanged.  He indicated there were 
 
            two furnace vents blowing into the room.
 
            
 
                 Claimant testified that the epoxy mixture had a 
 
            terrible odor and he had never smelled anything like it 
 
            before.  As he poured the mixture from a watering can on the 
 
            floor, he indicated his eyes started burning and he had 
 
            trouble comprehending things.  He said there were no 
 
            protectors used.  Claimant indicated that as the epoxy dried 
 
            on the floor the smell increased.  He indicated it took 
 
            about four hours before one could walk on it and that he was 
 
            working in the area approximately one and one-half hours 
 
            when he went on a break.  He said he experienced shortness 
 
            of breath and had never had this problem before.  He went to 
 
            the deli area and sat during his coffee break with his son 
 
            and another individual by the name of John Newsome.  
 
            Claimant indicated he was feeling nauseated and said the 
 
            fumes were terrible but he never thought of quitting.  He 
 
            indicated he used approximately three or four combination 
 
            sets of the containers of the epoxy mixtures, there being 
 
            two components in each set.  Claimant indicated he worked 
 
            straight through except for his break until approximately 
 
            8:45 a.m., when he closed up the store as everyone had gone.  
 
            [Claimant testified that he worked with the product for 
 
            eight hours except for a break at 3:00 a.m.]  Claimant 
 
            indicated that at that time he was feeling terrible, was 
 
            nauseated and was unsure of himself and felt as if he was on 
 
            a cheap drunk.  He [said he] was dizzy and had trouble 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            walking and had trouble locking the doors.  He indicated he 
 
            could not remember whether he locked the doors and checked 
 
            several times before leaving the premises.  Claimant said he 
 
            got into a car and had trouble driving the car.
 
            
 
                 Claimant related that on Christmas morning when he 
 
            arrived home from defendant employer, he saw a note on the 
 
            kitchen table placed there by his wife indicating that the 
 
            water heater went out so claimant went to the basement to 
 
            light the water heater.
 
            
 
                 Claimant indicated that he and his family had plans at 
 
            noon the next day to go to his wife's brother's but that he 
 
            was having a hard time getting up and getting started.  
 
            Claimant indicated when he did get up he was having trouble 
 
            navigating.  He said his words were slurred and he felt as 
 
            if he was ready to pass out and was having a stroke.  
 
            Claimant said the right side of his face sagged and his 
 
            right eye hurt.  He called 911 and remembered the ambulance 
 
            coming but did not remember going to the hospital.  Claimant 
 
            indicated he knew nothing for the first three days.  
 
            Claimant understood he had additional strokes in the 
 
            hospital.  He was discharged fourteen days later.  Claimant 
 
            said he still has trouble with his balance and has not 
 
            worked nor can he work since this incident.  He indicated he 
 
            has trouble with his memory, a speech problem and walks with 
 
            a cane.  He indicated he has had therapy.  He said the 
 
            stroke didn't leave him crippled and that he just has a 
 
            balance problem.  He indicated his right hand is weak and 
 
            that he is right handed and he cannot drive a car.  He said 
 
            workers' compensation has paid nothing.
 
            
 
                 Claimant applied for social security disability and 
 
            claimant has been receiving social security for the last one 
 
            and one-half years.  Claimant said that since his discharge 
 
            from the hospital he has no other strokes or accidents.
 
            
 
                 Claimant said he knew that epoxy had been applied to 
 
            defendant employer's floors before by another individual 
 
            twice before the claimant applied it in December 1989.  
 
            Claimant was asked questions in reference to the floor area 
 
            of defendant employer's business that the epoxy was to be 
 
            rolled on.  This diagram is also shown in deposition exhibit 
 
            4 of the deposition (Jt. Ex. 9) of Carol R. Angle, M.D.
 
            
 
                 Claimant said the epoxy product was petroleum based and 
 
            that he used water to clean it up.  He said it would not 
 
            easily wash off his hands.  Claimant indicated he hasn't 
 
            attempted to work since the December 24, 1989 alleged injury 
 
            and that he must always use a cane except when he is in the 
 
            house.  Claimant indicated he has not driven a car since the 
 
            accident but has received his driver's license.  He 
 
            indicated the doctor did not want him to drive.
 
            
 
                 Patricia Kahler, claimant's wife, testified that prior 
 
            to December 24, 1989, claimant was in good health but did 
 
            have hypertension which was under control.  She corroborated 
 
            claimant's testimony as to his condition and actions when 
 
            she tried to have him get up from bed around noon on 
 
            Christmas day.  She indicated that the claimant would muffle 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            his words and told her that he could taste the epoxy.  She 
 
            said claimant cannot drive, is limited from everything he 
 
            did previous to this incident.  She said that claimant can 
 
            mow the lawn but it takes him approximately three days to do 
 
            it.  She said he does some landscaping.  Mrs. Kahler 
 
            indicated she had help provide the information when claimant 
 
            was taken to the hospital.  She said her husband never lost 
 
            consciousness and his speech started to get better.
 
            
 
                 Ms. Kahler said she was present when Dr. Ohr took 
 
            claimant's history and that he may have asked her a few 
 
            questions.
 
            
 
                 Hugh McManus, an employee ***** [of the company who 
 
            sold the Epoxy 350 to defendant employer], testified that he 
 
            is a third party defendant in a case filed by claimant 
 
            against him and the manufacturer of the epoxy mixtures.  Mr. 
 
            McManus is a sales representative for the epoxy seller and 
 
            sells the product.  He indicated he knows Epoxy 350 which is 
 
            what the claimant used and is the product he sold to 
 
            defendant employer and the store manager, Mr. Allen.  Mr. 
 
            McManus said he has applied the 350 Epoxy on concrete floors 
 
            and that it is water based.  It is a new generation type of 
 
            safe product.  He explained that this means that it meets or 
 
            exceeds EPA standards.  He indicated it is easy to apply and 
 
            cleans up with water.  He said it dries fast and seals the 
 
            floor and that it is easy to maintain.  He indicated that to 
 
            himself the mixture seems almost odorless but you can tell 
 
            you are working with it.  He emphasized it is not a harsh or 
 
            irritating smell.  He has applied this product seven to ten 
 
            times and sells it to other Hy-Vee stores.  He emphasized 
 
            again that it is water based so that it is not a solvent or 
 
            petroleum based product.  He indicated that before the 
 
            mixture is put down the floor must be prepared and cleaned.  
 
            Grease and dust must be removed and the floor should be 
 
            scrubbed with water and a cleaner.  One of the cleaners that 
 
            is used is referred to as a renovator product and this also 
 
            was used as he understands it.
 
            
 
                 He explained that the epoxy comes in a kit, part A and 
 
            B, and that it is put together and stirred for about five 
 
            minutes and then applied.
 
            
 
                 Mr. McManus said he first delivered this type of 
 
            product to Hy-Vee in the first part of 1989 and that when it 
 
            was first applied, he was with those who applied it.  The 
 
            two individuals at that time were a husband and wife who ran 
 
            the maintenance department and have now left.
 
            
 
                 Mr. McManus indicated the time it would take to put the 
 
            epoxy down on the spaces that the claimant put the epoxy on 
 
            would amount to about 30 to 45 minutes on the long side.  He 
 
            indicated that 90 percent of the total time involved would 
 
            be in floor preparation.  He indicated that if it took four 
 
            hours to prepare the floor, then it would take little time 
 
            to put down the epoxy.
 
            
 
                 Mr. McManus indicated that four gallons does not exceed 
 
            2000 square feet of coverage and there is one gallon to a 
 
            box.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 He indicated that he told Mr. Kahler several times as 
 
            to how to apply the Epoxy 350.  He indicated the first time 
 
            he went over this with Mr. Kahler was when he was originally 
 
            talking with the couple, Vaughn and Sue Radi, who were 
 
            running the maintenance department prior to the claimant and 
 
            that the claimant then watched at that time.
 
            
 
                 Mr. McManus indicated that he did not talk with the 
 
            claimant on December 24, 1989, but that he did stop by the 
 
            Hy-Vee store about 10:45 p.m. and claimant was not there so 
 
            he left a message for claimant.  Mr. McManus indicated the 
 
            reason he had stopped at the store was that his parents 
 
            lived behind the store.  He emphasized he has never had any 
 
            problems with the epoxy.
 
            
 
                 Mr. McManus was questioned about the ventilation at the 
 
            Hy-Vee store and he indicated he was familiar with it.  He 
 
            recalled a ten foot hole in the wall and that a lot of air 
 
            was moving in the area of the hole.  He related his concern 
 
            about the extent of the air movement because the epoxy is 
 
            supposed to dry from the bottom out and not from the top 
 
            down and if there is too much air it forms a skin. He 
 
            further indicated that if the epoxy is sprayed on one should 
 
            use a mask and have ventilation.  If rolled, he indicated 
 
            nothing was needed.  He indicated that the vapors are not 
 
            dangerous but said he did not know in fact what the vapors 
 
            were.  He also acknowledged that he never trained the 
 
            claimant or never actually worked with him but only talked 
 
            about it approximately one month to one week before claimant 
 
            did the work on December 24 or 25, 1989.  Mr. McManus was 
 
            unable to answer why it would take claimant eight hours to 
 
            apply the epoxy and it would take him 45 minutes.  He 
 
            indicated again he had stopped by the store at 10:45 p.m. on 
 
            December 24, 1989, and claimant was not there.
 
            
 
                 John Allen testified he is an employee of defendant 
 
            employer and he is the store manager.  He has worked 18 
 
            years at this store and has been with Hy-Vee 25 years.  He 
 
            is familiar with claimant and indicated claimant was a full 
 
            time janitorial clerk on December 24, 1989.  Mr. Allen 
 
            related his conversation with Mr. McManus as to whether the 
 
            product was water based or petroleum based as Mr. Allen 
 
            recalled back earlier when he used a different substance it 
 
            had a petroleum base and had a bad smell.  Mr. Allen, at 
 
            Easter time 1989, watched the Epoxy 350 put down one hour 
 
            and later came back to watch another hour.  He saw the 
 
            individuals mix the first batch and put it in a pan and use 
 
            a roller.  He indicated that he noticed it smelled like a 
 
            common bleach but less than that and more like Fantastic.  
 
            He indicated the epoxy had been put on the floors on Easter 
 
            of 1989, July of 1989 and December of 1989.  He indicated 
 
            the epoxy he understood was only to be put down on the 
 
            walkways in the back room.  He indicated that there was 
 
            ventilation in the back room area as it was under 
 
            construction and that there was an open area of one to one-
 
            half feet gap above the steel girders and that the ceilings 
 
            were approximately ten feet high.  He thought the hole in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the wall was covered with plastic.  He indicated there was 
 
            an open area on which there was no door, there was a gas 
 
            heater operating and there were three furnaces in the back 
 
            room with forced air squirrel cage fans.  He also indicated 
 
            that the air to heat the front of the building came from the 
 
            back room as the front grates had been sealed.  Because of 
 
            construction, he indicated that the back room was very cold, 
 
            around 56 degrees, and that because of that the auxiliary 
 
            heaters were running more in the back room to heat it and 
 
            that this also caused the moving of the plastic covers over 
 
            the openings.  He indicated that his bill for at least one 
 
            month was running $15,000 because of these openings due to 
 
            the construction and the cold coming in.
 
            
 
                 He recalled seeing claimant in the summer of 1991 in 
 
            the Bluffs Mall and claimant was not using a cane at the 
 
            time or a walker.
 
            
 
                 Jeffrey Dilts has been a Hy-Vee employee for at least 
 
            six years and is currently the frozen foods manager.  On 
 
            December 24, 1989, he was a full-time janitorial clerk 
 
            cleaning the store at night and doing various maintenance 
 
            work with claimant.  He indicated that he has seen the Epoxy 
 
            350 applied and thought the former maintenance couple, Mr. 
 
            and Mrs. Radi, were the ones applying it.  Mr. Dilts 
 
            indicated that when Mr. Radi had applied the Epoxy 350 he 
 
            did just half of the area at a time and that Mr. Dilts had 
 
            to work around the back room area and would be walking by 
 
            the finished area while working.  He indicated that he had 
 
            no effects from this epoxy and that it had a mild odor and 
 
            not a strong odor and that there was nothing that would 
 
            affect his eyes or cause him to leave the room.  He 
 
            described the odor as a mild clean odor.  He indicated he 
 
            has never applied the epoxy himself and did not work the 
 
            night of December 24, 1989 and did not know the condition of 
 
            any ventilation or holes.
 
            
 
                 Jason T. Ohr, M.D., a neurologist, testified on May 12, 
 
            1992, through his deposition.  He first examined claimant in 
 
            December of 1989 through a referral from Rubin Altman, M.D.  
 
            The doctor related the history that claimant gave him.  Part 
 
            of that history was claimant was on an anti-hypertensive 
 
            drug, 20 mg per day for at least a couple of years (Jt. Ex. 
 
            18, p. 8, ll. 23-25).  The doctor related his examination of 
 
            claimant and the results.  The doctor indicated there 
 
            appeared to be some brain stem dysfunction.  The doctor 
 
            noted certain facial or body functions or symptoms that he 
 
            related to this brain stem dysfunction.  He also noted that 
 
            claimant could not stand still with both feet together and 
 
            referred to this condition as a trunkal atoxia.  The doctor 
 
            indicated his suspicion that claimant had a brain stem 
 
            stroke was confirmed by an MRI scan that indicated claimant 
 
            did have an ischemic infarct in the right cerebella and 
 
            there were some inside pons near the fourth ventricle.  In 
 
            addition, he did show infarct in the right thalamus.
 
            
 
                 The doctor concluded that claimant suffered a stroke 
 
            but he was not able to determine the cause of the stroke.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            The doctor did indicate that there are some aromic compounds 
 
            or solvents that can cause problems of neuropathies (Jt. Ex. 
 
            18, p. 24).  The doctor did not have any particular 
 
            knowledge of the epoxy compound that was being used by the 
 
            claimant (Jt. Ex. 18, pp. 23-24).  The doctor indicated he 
 
            had no experience treating any patients who exhibited 
 
            symptoms of exposure to epoxy compounds.  The doctor was 
 
            asked several questions concerning the brain and he 
 
            explained various functions.  He indicated that the type of 
 
            stroke claimant had was not common and it happens in less 
 
            than 20 percent of the stroke patients.
 
            
 
                 The doctor indicated that age, hypertension, high blood 
 
            pressure, diabetes, mellitus and smoking are all items that 
 
            add up to a risk factor.  The doctor indicated he told the 
 
            claimant not to smoke and that he should be treated for his 
 
            high blood pressure and the pressure hypertension (Jt. Ex. 
 
            18, p. 30).  He indicated he saw claimant only the one time, 
 
            namely, December 28, 1989.
 
            
 
                 Rubin Altman, M.D., testified through his deposition 
 
            taken on May 7, 1992, that he is certified in internal 
 
            medicine and first saw claimant on December 25, 1989, when 
 
            the claimant came to Jennie Edmundson Hospital.  He 
 
            indicated claimant had a history of hypertension and came in 
 
            with left sided weakness at that time.  The doctor described 
 
            his examination of the claimant and history taken by him.  
 
            The doctor's examination found claimant to have weakness or 
 
            drooping of the left side of his face, left arm, left leg 
 
            weakness and indicated the MRI that claimant showed what 
 
            seemed to be cerebellar and thalamic infarct.  The doctor 
 
            concluded that claimant had a completed stroke by the time 
 
            he left the hospital.  The doctor was unable to form an 
 
            opinion within reasonable medical certainty as to the 
 
            causation.  He indicated there were two possibilities, one 
 
            having to do with the epoxy resin and the other was just 
 
            hypertension cardiovascular disease with arterial sclerosis 
 
            of the cerebral arteries.  The doctor emphasized that he 
 
            could not arrive at a medical opinion as he was not an 
 
            expert on resins.  Dr. Altman indicated that claimant's 
 
            stroke was not a common one and that he named several 
 
            conditions that are risk factors.  He found that claimant 
 
            had a history of hypertension that would be a possible risk 
 
            factor in the claimant and that claimant did have 
 
            hypertension and was on medication.  He also found, as Dr. 
 
            Ohr found, that claimant smoked one to one and one-half 
 
            packages of cigarettes a day and that this was also a risk 
 
            factor for hardening of the arteries.  The doctor indicated 
 
            that claimant was going to have difficulty walking and 
 
            moving the rest of his life as he has a neurological 
 
            deficit.  The doctor opined that claimant is totally 
 
            disabled (Jt. Ex. 19, p. 26).  The doctor emphasized it is 
 
            impossible to say what caused claimant's stroke unless you 
 
            do an autopsy on a section of brain (Jt. Ex. 19, p. 32).
 
            
 
                 [The admission report from the Jennie Edmundson 
 
            Hospital on December 25, 1990 indicated that claimant had no 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            cough, nausea, or vomiting.  (Jt. Ex. 1, p. 4)  The claimant 
 
            was described as "somewhat lethargic" (Jt. Ex. 1, p. 2) and 
 
            is "alert, cooperative and oriented times three with a clear 
 
            insight."  (Jt. Ex. 1, p. 6)  Dr. Ohr noted at that time 
 
            "most likely, this is related to his hypertension.  I do not 
 
            note exact effect of hypoxic glue on his infarct.  I don't 
 
            think there is a direct relationship between the onset of 
 
            stroke and hypoxic glue may aggravate his hypertension."  
 
            (Jr. Ex. 1, p. 7)]
 
            
 
                 Carol R. Angle, M.D., testified through her deposition 
 
            on June 4, 1992, represented by joint exhibit 8, and again 
 
            on July 21, 1992, represented by joint exhibit 9.  The 
 
            latter deposition was video taped and the tape is part of 
 
            joint exhibit 9.  Dr. Angle is a clinical toxicologist.  
 
            Clinical toxology involves investigation of human effects, 
 
            effects of humans exposed to toxic substances.  The doctor 
 
            testified that she had at her disposal the product 
 
            information on Hillyard Epoxy 350 and Hillyard Renovator and 
 
            a report from an occupational and environmental health 
 
            consultant, Dr. Bertram Carnow.  She indicated she did not 
 
            know Dr. Carnow by reputation but did read his opinion.  The 
 
            doctor acknowledged that she was asked to review the 
 
            information and consider if she thought there was a relation 
 
            between the exposure and the stroke suffered by the 
 
            claimant.  The doctor said she reviewed the general medical 
 
            and current toxicologic literature.
 
            
 
                 The doctor testified that the information she had was 
 
            sufficient for her to form an opinion as to the cause of 
 
            claimant's medical situation.  She wrote a report, which is 
 
            represented by joint exhibit 4 and duplicated and 
 
            represented also by deposition exhibit 3 in the joint 
 
            exhibit 9.  This report is dated November 19, 1991.  She 
 
            said this written opinion correctly portrays her opinion 
 
            regarding causation between the inhalation or exposure to 
 
            Epoxy 350 and Renovator and the cerebrovascular accident of 
 
            Mr. Kahler (Jt. Ex. 9, p. 8).  The doctor had reviewed 
 
            claimant's medical and hospital records and concluded that 
 
            claimant was a high risk for stroke regardless of his 
 
            exposure to Epoxy 350 or the Renovator.  She indicated that 
 
            claimant was a high risk for stroke completely independent 
 
            of any toxic exposure.  She indicated claimant had five of 
 
            the eight risk factors for risks of having a stroke and four 
 
            of those five the doctor indicated account for 60 percent of 
 
            the risk for strokes.  Deposition exhibit 2 of joint exhibit 
 
            9 also reflects those risk factors and the five that 
 
            claimant had (Jt. Ex. 9, pp. 11-13).
 
            
 
                 The doctor testified she was familiar with the 
 
            chemicals and their properties regarding the Epoxy 350 and 
 
            the Renovator that claimant used.  She described their 
 
            contents and concluded that none of those compounds are 
 
            highly toxic.  In fact, she indicated they are all 
 
            considered of low toxicity and that the low permissible 
 
            exposure limits relate to the PGME and the Ethanolamine, the 
 
            Ethanolamine being irritants of the eyes, ears, nose and 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            throat.  She indicated they are not highly volatile when in 
 
            the solution and have a volatility comparable to that of 
 
            water (Jt. Ex. 9, pp. 14-15).  The doctor indicated she had 
 
            read Dr. Carnow's report and the report suggested the stroke 
 
            had been precipitated by decrease in oxygen supply.  In 
 
            other words, hypoxia.  The doctor explained her 
 
            understanding and disagreement with Dr. Carnow and Dr. Angle 
 
            opined, based on her review of the medical records, claimant 
 
            was not suffering from hypoxia (Jt. Ex. 9, p. 19).
 
            
 
                 The doctor also addressed the situation of acute 
 
            fluctuation of blood pressure that may have come about as a 
 
            result of exposure to the Hillyard 350 or Renovator.  The 
 
            doctor opined that claimant did not sustain an acute 
 
            fluctuation of blood pressure due to inhalation of a 
 
            narcotic solvent.  She also indicated that claimant, by the 
 
            history at the time of his admission to the hospital and 
 
            after his admission, did not complain of the symptoms of 
 
            dizziness and staggering and disorientation.  She emphasized 
 
            that at least the claimant had not complained of these to 
 
            anyone at work or to his wife when he came home.  The doctor 
 
            then discussed a third possible mechanism of stroke after 
 
            toxic exposure, namely, altered coagulability or 
 
            hypocoagulability.  The doctor testified that she had no 
 
            evidence of what she knows about the compounds to which 
 
            claimant was exposed, if any, altered the coagulation of the 
 
            blood.  The doctor therefore opined within reasonable 
 
            medical certainty that claimant did not suffer altered 
 
            coagulability from exposure (Jt. Ex. 9, pp. 20-22).
 
            
 
                 The doctor then discussed the possible mechanism of a 
 
            stroke, mainly direct neurotoxicity.  She described this as 
 
            a direct insult to the nerve tissue or to the blood vessels 
 
            typically associated to the acute neurologic symptoms.  The 
 
            doctor excluded this because she indicated there was no 
 
            history of acute neurologic symptoms including a sense of 
 
            intoxication or dizziness or weakness or confusion recorded 
 
            for the time of exposure.  The doctor therefore opined that 
 
            claimant did not suffer direct neurotoxicity due to exposure 
 
            to any of those compounds (Jt. Ex. 9, p. 22).  The doctor 
 
            then opined that the cerebrovascular accident suffered by 
 
            claimant was unrelated to any exposure on December 24 and 
 
            25, 1989 and that claimant's stroke or cerebrovascular 
 
            accident was influenced by the presence of risk factors that 
 
            the doctor had previously identified.
 
            
 
                 On cross-examination, the doctor acknowledged that she 
 
            never personally examined the claimant, she has not been 
 
            involved in any other cases involving this particular 
 
            product, and that she has not been involved in any legal 
 
            cases which involved epoxies in general.  The doctor did 
 
            indicate she was involved in many accidental exposures and 
 
            ingestions to both PGME and epoxy resins.  The doctor 
 
            therefore said she did have experience with epoxy and PGME 
 
            compounds but not in legal cases.  She also did not conduct 
 
            any tests of the Epoxy 350 compound.  The doctor testified 
 
            that exposure to PGME can cause hypoxia at high 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            concentrations and although it isn't absolute, hypoxia is a 
 
            general mechanism of causing thrombus.  She indicated that 
 
            claimant's cardiovascular accident was caused by a thrombus 
 
            (Jt. Ex. 9, pp. 27-28).  The doctor did acknowledge that 
 
            claimant's wife reported claimant had poor color at 9:00 
 
            a.m. prior to claimant's stroke but the doctor indicated 
 
            that claimant's wife did not indicate he had a bluish color 
 
            which would have made a difference and would be evidence of 
 
            hypoxia.
 
            
 
                 The doctor did emphasize again that the solvents 
 
            involved would not cause intoxication except at 
 
            concentrations sufficiently high or much higher than those 
 
            required to cause upper respiratory irritation.  Therefore, 
 
            she believed it safe to assume that claimant did not suffer 
 
            a narcotic, anesthetic or intoxicating effect from the 
 
            solvents, and that without intoxicating effect acute 
 
            fluctuations of blood pressure of sufficient magnitude to be 
 
            associated with a stroke are not considered likely (Jt. Ex. 
 
            9, pp. 32-33).
 
            
 
                 The doctor further emphasized that to have an 
 
            anesthetic effect of PGME requires an exposure to 3000 parts 
 
            per million whereas an irritant effect which claimant 
 
            claimed appears only at 100 parts per million.  The doctor 
 
            said that in the absence of some local irritation, it is 
 
            very unlikely or it seems impossible to sustain a systemic 
 
            or anesthetic effect.  The doctor testified that the 
 
            irritation one would see if the PGME was causing problems 
 
            would be an irritation of the mouth, possibly a sense of 
 
            shortness of breath, if it affected the inspiration of air.  
 
            She cannot believe that the claimant inhaled a significant 
 
            amount of PGME and reason for that is PGME is quite 
 
            intolerable at low concentrations and people would leave an 
 
            area or a room if that would occur at one-thirtieth of the 
 
            concentration that is required to cause an intoxication or 
 
            neurotoxic effect (Jt. Ex. 9, pp. 33-34).
 
            
 
                 *****
 
            
 
                 Bertram W. Carnow, M.D., testified through his video 
 
            deposition on September 4, 1992.  Both the transcript and 
 
            the video tape are represented by joint exhibit 6.  The 
 
            doctor testified that currently he is executive vice 
 
            president and senior scientist at Carnow, Conibear and 
 
            Associates, which is a full service occupational and 
 
            environmental health and safety consultation organization.  
 
            He and Dr. Conibear are the principals of this organization.  
 
            The doctor indicted that their organization deals with 
 
            people who have been exposed to toxic agents of one sort or 
 
            another and whether this exposure was occupationally exposed 
 
            or whether there had been an exposure and whether the 
 
            disease had been caused by exposure (Jt. Ex. 6, pp. 11-12).  
 
            The doctor indicated that he reviewed the documents on the 
 
            claimant including a report by Dr. Angle and the material 
 
            safety data sheet and material from the chemical called 
 
            Hillyard Epoxy 350 and the medical records.
 
            
 
                 The doctor stated that claimant's history indicated 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            claimant had a very mild hypertension and that it does not 
 
            have any significant impact on claimant's health.  The 
 
            doctor believed claimant was not a significant risk to 
 
            stroke prior to his exposure in December of 1989 (Jt. Ex. 6, 
 
            p. 13).  The doctor related his understanding of the facts 
 
            surrounding claimant's employment and work with the epoxy on 
 
            Christmas Eve and Christmas Day of 1989.  His understanding 
 
            was that there was epoxy used which he said was a very 
 
            volatile compound and it was used for a several hours period 
 
            and there was poor ventilation in the area in which claimant 
 
            was working.  Dr. Carnow emphasized that he understood the 
 
            extent of claimant's exposure to Epoxy 350 while at work was 
 
            massive.  Apparently, he understood there were no open 
 
            windows or ventilation and that he was working a lot of the 
 
            time on his knees so the stuff was right in his face.  He 
 
            understood that claimant mixed the two compounds together 
 
            (Jt. Ex. 6, p. 17).  Dr. Carnow disagreed with Dr. Angle as 
 
            to claimant having a thrombus.  Dr. Carnow said there was no 
 
            evidence that claimant had a clot.  Dr. Carnow agreed that 
 
            the infarct which had occurred in claimant's brain is what 
 
            caused the damage to his brain and Dr. Carnow believed this 
 
            damage was the result of a deprivation of oxygen.  He 
 
            believed that this deprivation of oxygen was caused by 
 
            claimant doing fairly heavy work, working for about seven or 
 
            eight hours and being exposed to high concentrations of 
 
            ethers which are narcotic to the brain.  He indicated that 
 
            claimant was at a high temperature so that you would have a 
 
            lot of volatile substances in the air and that this 
 
            interfered with his breathing.  He believed claimant was 
 
            deprived of oxygen and that claimant was narcotized as he 
 
            was exposed to ether for eight hours and the doctor believed 
 
            that this was the cause of claimant's stroke (Jt. Ex. 6, pp. 
 
            20-22).  He believed contrary to what Dr. Angle said that 
 
            the other items that could have caused the stroke were not 
 
            present in claimant's situation.  
 
            
 
                 Dr. Carnow also took strong exception to Dr. Angle's 
 
            opinion concerning claimant's hypertension and what effect 
 
            it had.  Dr. Carnow said there is no indication that 
 
            claimant was severely hypertensive and he doesn't believe it 
 
            was a factor and it would be strictly speculative (Jt. Ex. 
 
            6, p. 25).  The doctor again emphasized that he thought the 
 
            stroke claimant had was the result of claimant having eight 
 
            hours of exposure in a hot, nonventilated area with his nose 
 
            a foot or possibly eighteen inches away from a volatile 
 
            chemical and that this depressed his blood oxygen and 
 
            subsequently led to his stroke (Jt. Ex. 6, p. 26).  [In a 
 
            letter dated April 16, 1991 Dr. Carnow indicated his 
 
            opinions were based upon "massive exposure for 7-8 hours" 
 
            which caused claimant's condition were due to "inhalation 
 
            and absorption through the skin of these toxic substances."  
 
            (Jt. Ex. 2, p. 3)]
 
            
 
                 The doctor acknowledged that he is not a member of the 
 
            American Board of Clinical Toxicology nor has he been 
 
            certified in internal medicine but indicated he is eligible 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            but not certified and that he is licensed to practice in 
 
            Illinois, California and Washington D.C., but not in Iowa.  
 
            The doctor acknowledged that he has not examined the 
 
            claimant nor has he tested the products parts A and B that 
 
            claimant used in December of 1989, and therefore he does not 
 
            know for sure what is in parts A and B other than they are 
 
            epoxies or amines.  The doctor indicated that he had been 
 
            asking what A and B compounds were and that it would be 
 
            helpful to try to test to determine what the components are.  
 
            The doctor indicated that he did not have an opportunity to 
 
            review Dr. Angle's discovery or evidentiary deposition but 
 
            only her report.  He also hadn't reviewed Dr. Altman's 
 
            report, the claimant's treating internist, or the deposition 
 
            of claimant's treating neurologist, Dr. Ohr.  The doctor 
 
            also acknowledged that he did not see any pictures of the 
 
            room in which claimant was working in December of 1989, so, 
 
            likewise, he had no idea of the dimensions or nature of the 
 
            surroundings other than that claimant was working in a super 
 
            market (Jt. Ex. 6, pp. 49-50).  ***** The deposition exhibit 
 
            6 of joint exhibit 6, which is a September 6, 1990 letter to 
 
            Dr. Carnow from claimant's attorney, set out certain facts 
 
            which obviously the doctor relied upon.  *****
 
            
 
                 It appears ***** that the doctor did not know that 
 
            claimant applied the epoxy with a large, long roller that 
 
            was brought into courtroom.  It would have been impossible 
 
            for claimant to apply epoxy on his knees using this roller.  
 
            *****
 
            *****
 
            
 
                 The amount of floor space which according to the 
 
            evidence or exhibits is approximately 869 square feet could 
 
            be epoxied in approximately two hours time at the maximum 
 
            onto a conditioned floor.  Exhibit 4 of Joint exhibit 9 (Dr. 
 
            Angle's deposition) reflects that the real path area was 869 
 
            square feet and it was this area in which the sealer was to 
 
            be applied.  Claimant indicated that there were four kits 
 
            used which contained parts A and B, in which each kit 
 
            contained parts A and B, one part being the one gallon of 
 
            liquid and the other being the powder or mixture which would 
 
            be stirred into the liquid.  Joint exhibit 11 indicates that 
 
            one gallon is to cover 400 to 500 square feet. ***** Joint 
 
            exhibit 11 also reflects that this substance is water borne.
 
            
 
                 The roller used was in ***** [the room at the time of 
 
            the evidentiary hearing.] *****  [The presiding deputy 
 
            industrial commissioner concluded that] it could not have 
 
            taken more than an hour and at the maximum two hours to 
 
            apply four gallons of this epoxy mixture on the area 
 
            involved since the requirement was that this area had to be 
 
            clean beforehand.  Therefore, any exposure could not have 
 
            been as long as claimant contended.
 
            *****
 
            conclusions of law
 
            The dispositive issue to be resolved in this matter is 
 
            whether claimant has proved that his cerebral vascular 
 
            accident (stroke) arose out of and in the course of his 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            employment.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            The facts of this case shows the following.  Claimant worked 
 
            for a total of 7-8 hours.  Part of that time was used for 
 
            surface preparation and part used to apply the Epoxy 350 and 
 
            Renovator to the floor.  Claimant applied the materials with 
 
            a roller that was used while claimant was in a standing 
 
            position.  Claimant covered approximately 900 square feet in 
 
            an area that was near an area of the building that was under 
 
            construction.  The area was ventilated.  Given these facts 
 
            Dr. Carnow's opinion can be given little weight.  His 
 
            opinion based upon "massive exposure for 7-8 hours" is based 
 
            on erroneous information.
 
            
 
            Dr. Angle was clearly of the opinion that claimant's 
 
            exposure did not cause his stroke.  That opinion was based 
 
            upon a more accurate understanding of the facts and will be 
 
            given more weight than Dr. Carnow's opinion.
 
            When all the evidence in this case is considered it is 
 
            concluded that claimant has failed to meet his burden of 
 
            proving that his stroke arose out of and in the course of 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            his employment.  Claimant has not proved a causal connection 
 
            between his employment and his stroke.
 
            It should be noted that in this case claimant suffered a 
 
            cerebral vascular accident (stroke).  Therefore, the line of 
 
            cases in which an employee has a preexisting circulatory or 
 
            heart condition and suffers a heart attack are not directly 
 
            applicable.  See, Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
            (Iowa 1974).  Even if the line of cases dealing with heart 
 
            attacks with a preexisting condition were applicable, the 
 
            claimant has not proved that there was a causal connection 
 
            between his work and his stroke.
 
            
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                    ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That claimant shall take nothing from these proceedings.
 
            
 
            That claimant shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
            Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Scott H. Peters
 
            Mr. Jacob John Peters
 
            Attorneys at Law
 
            P.O. Box 1078
 
            Council Bluffs, Iowa 51502
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            
 
 
            
 
 
 
            
 
 
 
 
 
                                           1108.30; 1402.30; 2205
 
                                           Filed September 24, 1993
 
                                           BYRON K. ORTON
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            MARVIN E. KAHLER,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 931376
 
            HY-VEE FOOD STORES,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            1108.30; 1402.30; 2205
 
            Claimant failed to prove that his cerebral vascular accident 
 
            (stroke) arose out of and in the course of his employment.  
 
            Claimant alleged his stroke had been caused by exposure to 
 
            alleged toxic fumes.  The medical opinions varied on whether 
 
            the work environment caused the stroke.  The medical opinion 
 
            of claimant's experts was based upon erroneous facts 
 
            relating to the length and severity of exposure and was 
 
            given little weight.  This case was resolved on the basis of 
 
            causal connection.  It was noted that the law relating to 
 
            heart attacks with preexisting conditions was not directly 
 
            applicable.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            MARVIN E. KAHLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931376
 
            HY-VEE FOOD STORES,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This arbitration case came on for hearing on September 
 
            8, 1992, in Council Bluffs, Iowa.  Claimant seeks 
 
            compensation for permanent partial disability benefits as a 
 
            result of an alleged injury that occurred on December 24, 
 
            1989.  The record in the proceedings consists of the 
 
            testimony of the claimant; claimant's wife, Patricia Kahler; 
 
            Hugh McManus; John Allen; and Jeffrey Dilts; and, joint 
 
            exhibits 1 through 19.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged injury of December 24, 
 
            1989 arose out of and in the course of his employment;
 
            
 
                 2.  Whether there is causal connection as to claimant's 
 
            temporary or permanent disability as a result of an alleged 
 
            December 24, 1989 work injury;
 
            
 
                 3.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits; and,
 
            
 
                 4.  Iowa Code section 85.27 benefits, the issue being 
 
            causal connection.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                              FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 61-year-old high school graduate.  
 
            Claimant described his work history prior to becoming 
 
            employed for Hy-Vee Food Stores in 1988.
 
            
 
                 From 1960 to approximately 1988, claimant worked for 
 
            Continental Bakery as a sales representative, in the bread 
 
            department and in the cake department.  He retired from 
 
            Continental in 1988.
 
            
 
                 After his retirement, claimant then began work for 
 
            defendant employer in 1988 in the frozen foods department 
 
            and eventually as a night stocker and then ultimately in the 
 
            maintenance department cleaning and caring for the floors, 
 
            lunch rooms, rest rooms, etc.
 
            
 
                 Claimant said he had no pre Hy-Vee accidents.  He 
 
            indicated he had high blood pressure that began around one 
 
            or two years before his retirement from Hy-Vee and that at 
 
            the time of his alleged December 24, 1989 injury, he was 
 
            taking approximately one-half pill a day to control his 
 
            blood pressure.  Claimant emphasized he was having no 
 
            problems as to his blood pressure on December 24, 1989.  
 
            Claimant contends it was under control prior to December 24, 
 
            1989.  Claimant indicated he never had any workers' 
 
            compensation or other claims filed.
 
            
 
                 Claimant related that on December 24, 1989, at 
 
            approximately 11:00 p.m., he was to clean and apply an epoxy 
 
            on certain parts of the floor at defendant employer's store.  
 
            This particular date was picked because most of the stockers 
 
            were to have been off the premises and there would not be 
 
            anyone walking on the particular floors that were to be 
 
            cleaned and epoxy applied.  Claimant indicated that the 
 
            epoxying of the floors was discussed and he was told that 
 
            the sales representative was to come and tell him how to 
 
            apply it.  Claimant said the representative, Mr. McManus, 
 
            never did come and tell him how to apply the epoxy.  
 
            Claimant said he had never worked with epoxy before and that 
 
            approximately three days before he read about the epoxy and 
 
            the procedure.  Claimant indicated that he would pour the 
 
            two mixtures together and then it would be applied to the 
 
            floor with a roller.  Claimant identified in court the two 
 
            particular mixtures that were mixed together.  Those two 
 
            mixtures were not offered or admitted into evidence.
 
            
 
                 Claimant explained the area where he was to apply the 
 
            epoxy.  Basically, he indicated that there was no windows to 
 
            open and that the weather was very cold, there were no 
 
            drafts and no air being exchanged.  He indicated there were 
 
            two furnace vents blowing into the room.
 
            
 
                 Claimant testified that the epoxy mixture had a 
 
            terrible odor and he had never smelled anything like it 
 
            before.  As he poured the mixture from a watering can on the 
 
            floor, he indicated his eyes started burning and he had 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            trouble comprehending things.  He said there were no 
 
            protectors used.  Claimant indicated that as the epoxy dried 
 
            on the floor the smell increased.  He indicated it took 
 
            about four hours before one could walk on it and that he was 
 
            working in the area approximately one and one-half hours 
 
            when he went on a break.  He said he experienced shortness 
 
            of breath and had never had this problem before.  He went to 
 
            the deli area and sat during his coffee break with his son 
 
            and another individual by the name of John Newsome.  
 
            Claimant indicated he was feeling nauseated and said the 
 
            fumes were terrible but he never thought of quitting.  He 
 
            indicated he used approximately three or four combination 
 
            sets of the containers of the epoxy mixtures, there being 
 
            two components in each set.  Claimant indicated he worked 
 
            straight through except for his break until approximately 
 
            8:45 a.m., when he closed up the store as everyone had gone.  
 
            Claimant indicated that at that time he was feeling 
 
            terrible, was nauseated and was unsure of himself and felt 
 
            as if he was on a cheap drunk.  He was dizzy and had trouble 
 
            walking and had trouble locking the doors.  He indicated he 
 
            could not remember whether he locked the doors and checked 
 
            several times before leaving the premises.  Claimant said he 
 
            got into a car and had trouble driving the car.
 
            
 
                 Claimant related that on Christmas morning when he 
 
            arrived home from defendant employer, he saw a note on the 
 
            kitchen table placed there by his wife indicating that the 
 
            water heater went out so claimant went to the basement to 
 
            light the water heater.
 
            
 
                 Claimant indicated that he and his family had plans at 
 
            noon the next day to go to his wife's brother's but that he 
 
            was having a hard time getting up and getting started.  
 
            Claimant indicated when he did get up he was having trouble 
 
            navigating.  He said his words were slurred and he felt as 
 
            if he was ready to pass out and was having a stroke.  
 
            Claimant said the right side of his face sagged and his 
 
            right eye hurt.  He called 911 and remembered the ambulance 
 
            coming but did not remember going to the hospital.  Claimant 
 
            indicated he knew nothing for the first three days.  
 
            Claimant understood he had additional strokes in the 
 
            hospital.  He was discharged fourteen days later.  Claimant 
 
            said he still has trouble with his balance and has not 
 
            worked nor can he work since this incident.  He indicated he 
 
            has trouble with his memory, a speech problem and walks with 
 
            a cane.  He indicated he has had therapy.  He said the 
 
            stroke didn't leave him crippled and that he just has a 
 
            balance problem.  He indicated his right hand is weak and 
 
            that he is right handed and he cannot drive a car.  He said 
 
            workers' compensation has paid nothing.
 
            
 
                 Claimant applied for social security disability and 
 
            claimant has been receiving social security for the last one 
 
            and one-half years.  Claimant said that since his discharge 
 
            from the hospital he has no other strokes or accidents.
 
            
 
                 Claimant said he knew that epoxy had been applied to 
 
            defendant employer's floors before by another individual 
 
            twice before the claimant applied it in December 1989.  
 
            Claimant was asked questions in reference to the floor area 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of defendant employer's business that the epoxy was to be 
 
            rolled on.  This diagram is also shown in deposition exhibit 
 
            4 of the deposition (Jt. Ex. 9) of Carol R. Angle, M.D.
 
            
 
                 Claimant said the epoxy product was petroleum based and 
 
            that he used water to clean it up.  He said it would not 
 
            easily wash off his hands.  Claimant indicated he hasn't 
 
            attempted to work since the December 24, 1989 alleged injury 
 
            and that he must always use a cane except when he is in the 
 
            house.  Claimant indicated he has not driven a car since the 
 
            accident but has received his driver's license.  He 
 
            indicated the doctor did not want him to drive.
 
            
 
                 Patricia Kahler, claimant's wife, testified that prior 
 
            to December 24, 1989, claimant was in good health but did 
 
            have hypertension which was under control.  She corroborated 
 
            claimant's testimony as to his condition and actions when 
 
            she tried to have him get up from bed around noon on 
 
            Christmas day.  She indicated that the claimant would muffle 
 
            his words and told her that he could taste the epoxy.  She 
 
            said claimant cannot drive, is limited from everything he 
 
            did previous to this incident.  She said that claimant can 
 
            mow the lawn but it takes him approximately three days to do 
 
            it.  She said he does some landscaping.  Mrs. Kahler 
 
            indicated she had help provide the information when claimant 
 
            was taken to the hospital.  She said her husband never lost 
 
            consciousness and his speech started to get better.
 
            
 
                 Ms. Kahler said she was present when Dr. Ohr took 
 
            claimant's history and that he may have asked her a few 
 
            questions.
 
            
 
                 Hugh McManus, an employee with defendant employer, 
 
            testified that he is a third party defendant in a case filed 
 
            by claimant against him and the manufacturer of the epoxy 
 
            mixtures.  Mr. McManus is a sales representative for the 
 
            epoxy seller and sells the product.  He indicated he knows 
 
            Epoxy 350 which is what the claimant used and is the product 
 
            he sold to defendant employer and the store manager, Mr. 
 
            Allen.  Mr. McManus said he has applied the 350 Epoxy on 
 
            concrete floors and that it is water based.  It is a new 
 
            generation type of safe product.  He explained that this 
 
            means that it meets or exceeds EPA standards.  He indicated 
 
            it is easy to apply and cleans up with water.  He said it 
 
            dries fast and seals the floor and that it is easy to 
 
            maintain.  He indicated that to himself the mixture seems 
 
            almost odorless but you can tell you are working with it.  
 
            He emphasized it is not a harsh or irritating smell.  He has 
 
            applied this product seven to ten times and sells it to 
 
            other Hy-Vee stores.  He emphasized again that it is water 
 
            based so that it is not a solvent or petroleum based 
 
            product.  He indicated that before the mixture is put down 
 
            the floor must be prepared and cleaned.  Grease and dust 
 
            must be removed and the floor should be scrubbed with water 
 
            and a cleaner.  One of the cleaners that is used is referred 
 
            to as a renovator product and this also was used as he 
 
            understands it.
 
            
 
                 He explained that the epoxy comes in a kit, part A and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            B, and that it is put together and stirred for about five 
 
            minutes and then applied.
 
            
 
                 Mr. McManus said he first delivered this type of 
 
            product to Hy-Vee in the first part of 1989 and that when it 
 
            was first applied, he was with those who applied it.  The 
 
            two individuals at that time were a husband and wife who ran 
 
            the maintenance department and have now left.
 
            
 
                 Mr. McManus indicated the time it would take to put the 
 
            epoxy down on the spaces that the claimant put the epoxy on 
 
            would amount to about 30 to 45 minutes on the long side.  He 
 
            indicated that 90 percent of the total time involved would 
 
            be in floor preparation.  He indicated that if it took four 
 
            hours to prepare the floor, then it would take little time 
 
            to put down the epoxy.
 
            
 
                 Mr. McManus indicated that four gallons does not exceed 
 
            2000 square feet of coverage and there is one gallon to a 
 
            box.
 
            
 
                 He indicated that he told Mr. Kahler several times as 
 
            to how to apply the Epoxy 350.  He indicated the first time 
 
            he went over this with Mr. Kahler was when he was originally 
 
            talking with the couple, Vaughn and Sue Radi, who were 
 
            running the maintenance department prior to the claimant and 
 
            that the claimant then watched at that time.
 
            
 
                 Mr. McManus indicated that he did not talk with the 
 
            claimant on December 24, 1989, but that he did stop by the 
 
            Hy-Vee store about 10:45 p.m. and claimant was not there so 
 
            he left a message for claimant.  Mr. McManus indicated the 
 
            reason he had stopped at the store was that his parents 
 
            lived behind the store.  He emphasized he has never had any 
 
            problems with the epoxy.
 
            
 
                 Mr. McManus was questioned about the ventilation at the 
 
            Hy-Vee store and he indicated he was familiar with it.  He 
 
            recalled a ten foot hole in the wall and that a lot of air 
 
            was moving in the area of the hole.  He related his concern 
 
            about the extent of the air movement because the epoxy is 
 
            supposed to dry from the bottom out and not from the top 
 
            down and if there is too much air it forms a skin. He 
 
            further indicated that if the epoxy is sprayed on one should 
 
            use a mask and have ventilation.  If rolled, he indicated 
 
            nothing was needed.  He indicated that the vapors are not 
 
            dangerous but said he did not know in fact what the vapors 
 
            were.  He also acknowledged that he never trained the 
 
            claimant or never actually worked with him but only talked 
 
            about it approximately one month to one week before claimant 
 
            did the work on December 24 or 25, 1989.  Mr. McManus was 
 
            unable to answer why it would take claimant eight hours to 
 
            apply the epoxy and it would take him 45 minutes.  He 
 
            indicated again he had stopped by the store at 10:45 p.m. on 
 
            December 24, 1989, and claimant was not there.
 
            
 
                 John Allen testified he is an employee of defendant 
 
            employer and he is the store manager.  He has worked 18 
 
            years at this store and has been with Hy-Vee 25 years.  He 
 
            is familiar with claimant and indicated claimant was a full 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            time janitorial clerk on December 24, 1989.  Mr. Allen 
 
            related his conversation with Mr. McManus as to whether the 
 
            product was water based or petroleum based as Mr. Allen 
 
            recalled back earlier when he used a different substance it 
 
            had a petroleum base and had a bad smell.  Mr. Allen, at 
 
            Easter time 1989, watched the Epoxy 350 put down one hour 
 
            and later came back to watch another hour.  He saw the 
 
            individuals mix the first batch and put it in a pan and use 
 
            a roller.  He indicated that he noticed it smelled like a 
 
            common bleach but less than that and more like Fantastic.  
 
            He indicated the epoxy had been put on the floors on Easter 
 
            of 1989, July of 1989 and December of 1989.  He indicated 
 
            the epoxy he understood was only to be put down on the 
 
            walkways in the back room.  He indicated that there was 
 
            ventilation in the back room area as it was under 
 
            construction and that there was an open area of one to one-
 
            half feet gap above the steel girders and that the ceilings 
 
            were approximately ten feet high.  He thought the hole in 
 
            the wall was covered with plastic.  He indicated there was 
 
            an open area on which there was no door, there was a gas 
 
            heater operating and there were three furnaces in the back 
 
            room with forced air squirrel cage fans.  He also indicated 
 
            that the air to heat the front of the building came from the 
 
            back room as the front grates had been sealed.  Because of 
 
            construction, he indicated that the back room was very cold, 
 
            around 56 degrees, and that because of that the auxiliary 
 
            heaters were running more in the back room to heat it and 
 
            that this also caused the moving of the plastic covers over 
 
            the openings.  He indicated that his bill for at least one 
 
            month was running $15,000 because of these openings due to 
 
            the construction and the cold coming in.
 
            
 
                 He recalled seeing claimant in the summer of 1991 in 
 
            the Bluffs Mall and claimant was not using a cane at the 
 
            time or a walker.
 
            
 
                 Jeffrey Dilts has been a Hy-Vee employee for at least 
 
            six years and is currently the frozen foods manager.  On 
 
            December 24, 1989, he was a full-time janitorial clerk 
 
            cleaning the store at night and doing various maintenance 
 
            work with claimant.  He indicated that he has seen the Epoxy 
 
            350 applied and thought the former maintenance couple, Mr. 
 
            and Mrs. Radi, were the ones applying it.  Mr. Dilts 
 
            indicated that when Mr. Radi had applied the Epoxy 350 he 
 
            did just half of the area at a time and that Mr. Dilts had 
 
            to work around the back room area and would be walking by 
 
            the finished area while working.  He indicated that he had 
 
            no effects from this epoxy and that it had a mild odor and 
 
            not a strong odor and that there was nothing that would 
 
            affect his eyes or cause him to leave the room.  He 
 
            described the odor as a mild clean odor.  He indicated he 
 
            has never applied the epoxy himself and did not work the 
 
            night of December 24, 1989 and did not know the condition of 
 
            any ventilation or holes.
 
            
 
                 Jason T. Ohr, M.D., a neurologist, testified on May 12, 
 
            1992, through his deposition.  He first examined claimant in 
 
            December of 1989 through a referral from Rubin Altman, M.D.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            The doctor related the history that claimant gave him.  Part 
 
            of that history was claimant was on an anti-hypertensive 
 
            drug, 20 mg per day for at least a couple of years (Jt. Ex. 
 
            18, p. 8, ll. 23-25).  The doctor related his examination of 
 
            claimant and the results.  The doctor indicated there 
 
            appeared to be some brain stem dysfunction.  The doctor 
 
            noted certain facial or body functions or symptoms that he 
 
            related to this brain stem dysfunction.  He also noted that 
 
            claimant could not stand still with both feet together and 
 
            referred to this condition as a trunkal atoxia.  The doctor 
 
            indicated his suspicion that claimant had a brain stem 
 
            stroke was confirmed by an MRI scan that indicated claimant 
 
            did have an ischemic infarct in the right cerebella and 
 
            there were some inside pons near the fourth ventricle.  In 
 
            addition, he did show infarct in the right thalamus.
 
            
 
                 The doctor concluded that claimant suffered a stroke 
 
            but he was not able to determine the cause of the stroke.  
 
            The doctor did indicate that there are some aromic compounds 
 
            or solvents that can cause problems of neuropathies (Jt. Ex. 
 
            18, p. 24).  The doctor did not have any particular 
 
            knowledge of the epoxy compound that was being used by the 
 
            claimant (Jt. Ex. 18, pp. 23-24).  The doctor indicated he 
 
            had no experience treating any patients who exhibited 
 
            symptoms of exposure to epoxy compounds.  The doctor was 
 
            asked several questions concerning the brain and he 
 
            explained various functions.  He indicated that the type of 
 
            stroke claimant had was not common and it happens in less 
 
            than 20 percent of the stroke patients.
 
            
 
                 The doctor indicated that age, hypertension, high blood 
 
            pressure, diabetes, mellitus and smoking are all items that 
 
            add up to a risk factor.  The doctor indicated he told the 
 
            claimant not to smoke and that he should be treated for his 
 
            high blood pressure and the pressure hypertension (Jt. Ex. 
 
            18, p. 30).  He indicated he saw claimant only the one time, 
 
            namely, December 28, 1989.
 
            
 
                 Rubin Altman, M.D., testified through his deposition 
 
            taken on May 7, 1992, that he is certified in internal 
 
            medicine and first saw claimant on December 25, 1989, when 
 
            the claimant came to Jennie Edmundson Hospital.  He 
 
            indicated claimant had a history of hypertension and came in 
 
            with left sided weakness at that time.  The doctor described 
 
            his examination of the claimant and history taken by him.  
 
            The doctor's examination found claimant to have weakness or 
 
            drooping of the left side of his face, left arm, left leg 
 
            weakness and indicated the MRI that claimant showed what 
 
            seemed to be cerebellar and thalamic infarct.  The doctor 
 
            concluded that claimant had a completed stroke by the time 
 
            he left the hospital.  The doctor was unable to form an 
 
            opinion within reasonable medical certainty as to the 
 
            causation.  He indicated there were two possibilities, one 
 
            having to do with the epoxy resin and the other was just 
 
            hypertension cardiovascular disease with arterial sclerosis 
 
            of the cerebral arteries.  The doctor emphasized that he 
 
            could not arrive at a medical opinion as he was not an 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            expert on resins.  Dr. Altman indicated that claimant's 
 
            stroke was not a common one and that he named several 
 
            conditions that are risk factors.  He found that claimant 
 
            had a history of hypertension that would be a possible risk 
 
            factor in the claimant and that claimant did have 
 
            hypertension and was on medication.  He also found, as Dr. 
 
            Ohr found, that claimant smoked one to one and one-half 
 
            packages of cigarettes a day and that this was also a risk 
 
            factor for hardening of the arteries.  The doctor indicated 
 
            that claimant was going to have difficulty walking and 
 
            moving the rest of his life as he has a neurological 
 
            deficit.  The doctor opined that claimant is totally 
 
            disabled (Jt. Ex. 19, p. 26).  The doctor emphasized it is 
 
            impossible to say what caused claimant's stroke unless you 
 
            do an autopsy on a section of brain (Jt. Ex. 19, p. 32).
 
            
 
                 Carol R. Angle, M.D., testified through her deposition 
 
            on June 4, 1992, represented by joint exhibit 8, and again 
 
            on July 21, 1992, represented by joint exhibit 9.  The 
 
            latter deposition was video taped and the tape is part of 
 
            joint exhibit 9.  Dr. Angle is a clinical toxicologist.  
 
            Clinical toxology involves investigation of human effects, 
 
            effects of humans exposed to toxic substances.  The doctor 
 
            testified that she had at her disposal the product 
 
            information on Hillyard Epoxy 350 and Hillyard Renovator and 
 
            a report from an occupational and environmental health 
 
            consultant, Dr. Bertram Carnow.  She indicated she did not 
 
            know Dr. Carnow by reputation but did read his opinion.  The 
 
            doctor acknowledged that she was asked to review the 
 
            information and consider if she thought there was a relation 
 
            between the exposure and the stroke suffered by the 
 
            claimant.  The doctor said she reviewed the general medical 
 
            and current toxicologic literature.
 
            
 
                 The doctor testified that the information she had was 
 
            sufficient for her to form an opinion as to the cause of 
 
            claimant's medical situation.  She wrote a report, which is 
 
            represented by joint exhibit 4 and duplicated and 
 
            represented also by deposition exhibit 3 in the joint 
 
            exhibit 9.  This report is dated November 19, 1991.  She 
 
            said this written opinion correctly portrays her opinion 
 
            regarding causation between the inhalation or exposure to 
 
            Epoxy 350 and Renovator and the cerebrovascular accident of 
 
            Mr. Kahler (Jt. Ex. 9, p. 8).  The doctor had reviewed 
 
            claimant's medical and hospital records and concluded that 
 
            claimant was a high risk for stroke regardless of his 
 
            exposure to Epoxy 350 or the Renovator.  She indicated that 
 
            claimant was a high risk for stroke completely independent 
 
            of any toxic exposure.  She indicated claimant had five of 
 
            the eight risk factors for risks of having a stroke and four 
 
            of those five the doctor indicated account for 60 percent of 
 
            the risk for strokes.  Deposition exhibit 2 of joint exhibit 
 
            9 also reflects those risk factors and the five that 
 
            claimant had (Jt. Ex. 9, pp. 11-13).
 
            
 
                 The doctor testified she was familiar with the 
 
            chemicals and their properties regarding the Epoxy 350 and 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            the Renovator that claimant used.  She described their 
 
            contents and concluded that none of those compounds are 
 
            highly toxic.  In fact, she indicated they are all 
 
            considered of low toxicity and that the low permissible 
 
            exposure limits relate to the PGME and the Ethanolamine, the 
 
            Ethanolamine being irritants of the eyes, ears, nose and 
 
            throat.  She indicated they are not highly volatile when in 
 
            the solution and have a volatility comparable to that of 
 
            water (Jt. Ex. 9, pp. 14-15).  The doctor indicated she had 
 
            read Dr. Carnow's report and the report suggested the stroke 
 
            had been precipitated by decrease in oxygen supply.  In 
 
            other words, hypoxia.  The doctor explained her 
 
            understanding and disagreement with Dr. Carnow and Dr. Angle 
 
            opined, based on her review of the medical records, claimant 
 
            was not suffering from hypoxia (Jt. Ex. 9, p. 19).
 
            
 
                 The doctor also addressed the situation of acute 
 
            fluctuation of blood pressure that may have come about as a 
 
            result of exposure to the Hillyard 350 or Renovator.  The 
 
            doctor opined that claimant did not sustain an acute 
 
            fluctuation of blood pressure due to inhalation of a 
 
            narcotic solvent.  She also indicated that claimant, by the 
 
            history at the time of his admission to the hospital and 
 
            after his admission, did not complain of the symptoms of 
 
            dizziness and staggering and disorientation.  She emphasized 
 
            that at least the claimant had not complained of these to 
 
            anyone at work or to his wife when he came home.  The doctor 
 
            then discussed a third possible mechanism of stroke after 
 
            toxic exposure, namely, altered coagulability or 
 
            hypocoagulability.  The doctor testified that she had no 
 
            evidence of what she knows about the compounds to which 
 
            claimant was exposed, if any, altered the coagulation of the 
 
            blood.  The doctor therefore opined within reasonable 
 
            medical certainty that claimant did not suffer altered 
 
            coagulability from exposure (Jt. Ex. 9, pp. 20-22).
 
            
 
                 The doctor then discussed the possible mechanism of a 
 
            stroke, mainly direct neurotoxicity.  She described this as 
 
            a direct insult to the nerve tissue or to the blood vessels 
 
            typically associated to the acute neurologic symptoms.  The 
 
            doctor excluded this because she indicated there was no 
 
            history of acute neurologic symptoms including a sense of 
 
            intoxication or dizziness or weakness or confusion recorded 
 
            for the time of exposure.  The doctor therefore opined that 
 
            claimant did not suffer direct neurotoxicity due to exposure 
 
            to any of those compounds (Jt. Ex. 9, p. 22).  The doctor 
 
            then opined that the cerebrovascular accident suffered by 
 
            claimant was unrelated to any exposure on December 24 and 
 
            25, 1989 and that claimant's stroke or cerebrovascular 
 
            accident was influenced by the presence of risk factors that 
 
            the doctor had previously identified.
 
            
 
                 On cross-examination, the doctor acknowledged that she 
 
            never personally examined the claimant, she has not been 
 
            involved in any other cases involving this particular 
 
            product, and that she has not been involved in any legal 
 
            cases which involved epoxies in general.  The doctor did 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            indicate she was involved in many accidental exposures and 
 
            ingestions to both PGME and epoxy resins.  The doctor 
 
            therefore said she did have experience with epoxy and PGME 
 
            compounds but not in legal cases.  She also did not conduct 
 
            any tests of the Epoxy 350 compound.  The doctor testified 
 
            that exposure to PGME can cause hypoxia at high 
 
            concentrations and although it isn't absolute, hypoxia is a 
 
            general mechanism of causing thrombus.  She indicated that 
 
            claimant's cardiovascular accident was caused by a thrombus 
 
            (Jt. Ex. 9, pp. 27-28).  The doctor did acknowledge that 
 
            claimant's wife reported claimant had poor color at 9:00 
 
            a.m. prior to claimant's stroke but the doctor indicated 
 
            that claimant's wife did not indicate he had a bluish color 
 
            which would have made a difference and would be evidence of 
 
            hypoxia.
 
            
 
                 The doctor did emphasize again that the solvents 
 
            involved would not cause intoxication except at 
 
            concentrations sufficiently high or much higher than those 
 
            required to cause upper respiratory irritation.  Therefore, 
 
            she believed it safe to assume that claimant did not suffer 
 
            a narcotic, anesthetic or intoxicating effect from the 
 
            solvents, and that without intoxicating effect acute 
 
            fluctuations of blood pressure of sufficient magnitude to be 
 
            associated with a stroke are not considered likely (Jt. Ex. 
 
            9, pp. 32-33).
 
            
 
                 The doctor further emphasized that to have an 
 
            anesthetic effect of PGME requires an exposure to 3000 parts 
 
            per million whereas an irritant effect which claimant 
 
            claimed appears only at 100 parts per million.  The doctor 
 
            said that in the absence of some local irritation, it is 
 
            very unlikely or it seems impossible to sustain a systemic 
 
            or anesthetic effect.  The doctor testified that the 
 
            irritation one would see if the PGME was causing problems 
 
            would be an irritation of the mouth, possibly a sense of 
 
            shortness of breath, if it affected the inspiration of air.  
 
            She cannot believe that the claimant inhaled a significant 
 
            amount of PGME and reason for that is PGME is quite 
 
            intolerable at low concentrations and people would leave an 
 
            area or a room if that would occur at one-thirtieth of the 
 
            concentration that is required to cause an intoxication or 
 
            neurotoxic effect (Jt. Ex. 9, pp. 33-34).
 
            
 
                 As indicated earlier, Dr. Angle also testified through 
 
            a deposition represented by joint exhibit 8.  On the exhibit 
 
            list, this is identified as discovery deposition where joint 
 
            exhibit 9 was an evidentiary video deposition.  The 
 
            undersigned, in viewing joint exhibit 8, sees no reason to 
 
            set out anything from this exhibit as it is basically 
 
            duplicative in many instances and it was taken on June 4, 
 
            1992, a little more than one and one-half months before the 
 
            July 21, 1992 joint exhibit 9 deposition.
 
            
 
                 Dr. Bertram W. Carnow, M.D., testified through his 
 
            video deposition on September 4, 1992.  Both the transcript 
 
            and the video tape are represented by joint exhibit 6.  The 
 
            doctor testified that currently he is executive vice 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            president and senior scientist at Carnow, Conibear and 
 
            Associates, which is a full service occupational and 
 
            environmental health and safety consultation organization.  
 
            He and Dr. Conibear are the principals of this organization.  
 
            The doctor indicted that their organization deals with 
 
            people who have been exposed to toxic agents of one sort or 
 
            another and whether this exposure was occupationally exposed 
 
            or whether there had been an exposure and whether the 
 
            disease had been caused by exposure (Jt. Ex. 6, pp. 11-12).  
 
            The doctor indicated that he reviewed the documents on the 
 
            claimant including a report by Dr. Angle and the material 
 
            safety data sheet and material from the chemical called 
 
            Hillyard Epoxy 350 and the medical records.
 
            
 
                 The doctor stated that claimant's history indicated 
 
            claimant had a very mild hypertension and that it does not 
 
            have any significant impact on claimant's health.  The 
 
            doctor believed claimant was not a significant risk to 
 
            stroke prior to his exposure in December of 1989 (Jt. Ex. 6, 
 
            p. 13).  The doctor related his understanding of the facts 
 
            surrounding claimant's employment and work with the epoxy on 
 
            Christmas Eve and Christmas Day of 1989.  His understanding 
 
            was that there was epoxy used which he said was a very 
 
            volatile compound and it was used for a several hours period 
 
            and there was poor ventilation in the area in which claimant 
 
            was working.  Dr. Carnow emphasized that he understood the 
 
            extent of claimant's exposure to Epoxy 350 while at work was 
 
            massive.  Apparently, he understood there were no open 
 
            windows or ventilation and that he was working a lot of the 
 
            time on his knees so the stuff was right in his face.  He 
 
            understood that claimant mixed the two compounds together 
 
            (Jt. Ex. 6, p. 17).  Dr. Carnow disagreed with Dr. Angle as 
 
            to claimant having a thrombus.  Dr. Carnow said there was no 
 
            evidence that claimant had a clot.  Dr. Carnow agreed that 
 
            the infarct which had occurred in claimant's brain is what 
 
            caused the damage to his brain and Dr. Carnow believed this 
 
            damage was the result of a deprivation of oxygen.  He 
 
            believed that this deprivation of oxygen was caused by 
 
            claimant doing fairly heavy work, working for about seven or 
 
            eight hours and being exposed to high concentrations of 
 
            ethers which are narcotic to the brain.  He indicated that 
 
            claimant was at a high temperature so that you would have a 
 
            lot of volatile substances in the air and that this 
 
            interfered with his breathing.  He believed claimant was 
 
            deprived of oxygen and that claimant was narcotized as he 
 
            was exposed to ether for eight hours and the doctor believed 
 
            that this was the cause of claimant's stroke (Jt. Ex. 6, pp. 
 
            20-22).  He believed contrary to what Dr. Angle said that 
 
            the other items that could have caused the stroke were not 
 
            present in claimant's situation.
 
            
 
                 Dr. Carnow also took strong exception to Dr. Angle's 
 
            opinion concerning claimant's hypertension and what effect 
 
            it had.  Dr. Carnow said there is no indication that 
 
            claimant was severely hypertensive and he doesn't believe it 
 
            was a factor and it would be strictly speculative (Jt. Ex. 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            6, p. 25).  The doctor again emphasized that he thought the 
 
            stroke claimant had was the result of claimant having eight 
 
            hours of exposure in a hot, nonventilated area with his nose 
 
            a foot or possibly eighteen inches away from a volatile 
 
            chemical and that this depressed his blood oxygen and 
 
            subsequently led to his stroke (Jt. Ex. 6, p. 26).
 
            
 
                 The doctor acknowledged that he is not a member of the 
 
            American Board of Clinical Toxicology nor has he been 
 
            certified in internal medicine but indicated he is eligible 
 
            but not certified and that he is licensed to practice in 
 
            Illinois, California and Washington D.C., but not in Iowa.  
 
            The doctor acknowledged that he has not examined the 
 
            claimant nor has he tested the products parts A and B that 
 
            claimant used in December of 1989, and therefore he does not 
 
            know for sure what is in parts A and B other than they are 
 
            epoxies or amines.  The doctor indicated that he had been 
 
            asking what A and B compounds were and that it would be 
 
            helpful to try to test to determine what the components are.  
 
            The doctor indicated that he did not have an opportunity to 
 
            review Dr. Angle's discovery or evidentiary deposition but 
 
            only her report.  He also hadn't reviewed Dr. Altman's 
 
            report, the claimant's treating internist, or the deposition 
 
            of claimant's treating neurologist, Dr. Ohr.  The doctor 
 
            also acknowledged that he did not see any pictures of the 
 
            room in which claimant was working in December of 1989, so, 
 
            likewise, he had no idea of the dimensions or nature of the 
 
            surroundings other than that claimant was working in a super 
 
            market (Jt. Ex. 6, pp. 49-50).  The undersigned might note 
 
            that the deposition exhibit 6 of joint exhibit 6, which is a 
 
            September 6, 1990 letter to Dr. Carnow from claimant's 
 
            attorney, set out certain facts which obviously the doctor 
 
            relied upon.  It is of interest that the letter indicated 
 
            claimant spent seven or eight hours applying an epoxy resin 
 
            floor sealer compound in an enclosed, unventilated room.  Of 
 
            course, the testimony and facts do not support this but it 
 
            is obvious it was these facts upon which the doctor related 
 
            to in his deposition testimony and his opinions.
 
            
 
                 It appears to the undersigned that the doctor did not 
 
            know that claimant applied the epoxy with a large, long 
 
            roller that was brought into courtroom.  It would have been 
 
            impossible for claimant to apply epoxy on his knees using 
 
            this roller.  Claimant never testified he was even working 
 
            on his knees.
 
            
 
                 The undersigned has reviewed joint exhibit 1 but sees 
 
            no necessity in setting out any particulars of said exhibit 
 
            in this decision as the various medical doctors have 
 
            referred to the records and their testimony encompasses 
 
            their understanding after they read the same, and include 
 
            their interpretation of the same and their conclusions based 
 
            on claimant's medical records.
 
            
 
                 The same is true of joint exhibits 2 through 4, which 
 
            are the various doctor reports of the doctors who testified 
 
            through their depositions.  These reports are also attached 
 
            as exhibits to their respective depositions and they 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            testified concerning their contents.  Therefore, there is no 
 
            need again to set out what has already been set out through 
 
            their testimony.
 
            
 
                 Claimant contends that he had his stroke as a result of 
 
            applying the epoxy compound or Epoxy 350 to the floor of 
 
            defendant employer's store beginning December 24, 1989, and 
 
            continuing for approximately seven and one-half hours on 
 
            Christmas Day on December 25, 1989.
 
            
 
                 The undersigned has difficulty with claimant's 
 
            testimony concerning the amount of time he alleges he was 
 
            applying the epoxy mixture.  In his testimony he left the 
 
            impression similar to the answer he gave in his 
 
            interrogatories which indicated he worked all night in 
 
            applying Epoxy 350, a cement sealer, to the back room and 
 
            dock of Hy-Vee.  He indicated he worked alone and was 
 
            exposed to toxic fumes for approximately seven and one-half 
 
            hours.
 
            
 
                 It is obvious the floor that was to be epoxied had to 
 
            be cleaned as the sealer was to make a hard surface.  Common 
 
            sense, let alone all other evidence and instructions on use 
 
            of material and use of the product, would indicate the floor 
 
            should be clean and free of foreign material.  It is obvious 
 
            that the floor had to have been cleaned before and 
 
            conditioned for this Epoxy 350 to be applied.  The claimant 
 
            seems to indicate that he cleaned the floor and yet he 
 
            indicated he worked his approximate eight hour shift 
 
            applying this Epoxy 350.  The undersigned believes that a 
 
            substantial amount of claimant's time was done, in fact, in 
 
            cleaning the floor and not applying the epoxy.  The 
 
            undersigned also believes that the amount of floor space 
 
            which according to the evidence or exhibits is approximately 
 
            869 square feet could be epoxied in approximately two hours 
 
            time at the maximum onto a conditioned floor.  Exhibit 4 of 
 
            joint exhibit 9 (Dr. Angle's deposition) reflects that the 
 
            real path area was 869 square feet and it was this area in 
 
            which the sealer was to be applied.  Claimant indicated that 
 
            there were four kits used which contained parts A and B, in 
 
            which each kit contained parts A and B, one part being the 
 
            one gallon of liquid and the other being the powder or 
 
            mixture which would be stirred into the liquid.  Joint 
 
            exhibit 11 indicates that one gallon is to cover 400 to 500 
 
            square feet.  Claimant also gave the impression that the 
 
            Epoxy 350 was something other than a water base or water 
 
            borne substance and that the smell was terrible.  It appears 
 
            that substantial evidence is to the contrary.  Joint exhibit 
 
            11 also reflects that this substance is water borne.
 
            
 
                 Claimant went into depth as to describing the effect 
 
            this Epoxy 350 had on him that evening and that he took a 
 
            break with some other employees at the deli and then 
 
            continued on applying the epoxy.  All the instructions 
 
            indicate that the epoxy should be applied as soon as 
 
            possible when mixed and should not be let set without being 
 
            used for too long a period of time.  It seems strange to the 
 
            undersigned that the claimant would not have as a witness 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            anyone who saw him in his alleged nauseated or weakened 
 
            condition when he took his break.  Claimant's son also 
 
            worked at the store part of that evening and for some reason 
 
            his son who would have been familiar with some of the facts 
 
            was not called.  Claimant set out in answer to interrogatory 
 
            15 of joint exhibit 16, page 11, several witnesses who have 
 
            personal knowledge of claimant's present physical condition 
 
            and complaints and claimant called none of those people as 
 
            to key areas of what might have gone on at the Hy-vee store 
 
            the evening and morning of December 24 and 25, respectively.  
 
            Claimant only called the wife who had no personal knowledge 
 
            of what went on or took place at the Hy-Vee store.
 
            
 
                 The undersigned was impressed with Dr. Angle's 
 
            curriculum vitae and her testimony which the undersigned 
 
            believes is most credible and reliable.
 
            
 
                 Although Dr. Carnow also has a rather impressive 
 
            curriculum vitae, it appears that his testimony is 
 
            substantially flawed because he operated on facts that were 
 
            incorrect.  One area of information that he was given is 
 
            reflected on page 17 of joint exhibit 6, Dr. Carnow's 
 
            deposition, in which he understood that there was no 
 
            ventilation and claimant was working a lot of the time on 
 
            his knees so that the stuff was right in his face.
 
            
 
                 On page 26 of his deposition, he again indicated that 
 
            claimant had eight hours of exposure in a hot, nonventilated 
 
            area with his nose a foot or eighteen inches away from a 
 
            volatile chemical and, therefore, he felt that it was this 
 
            exposure that depressed claimant's oxygen and subsequently 
 
            led to his stroke.  Claimant left this doctor with the same 
 
            impression he tried to leave with the undersigned, that he 
 
            was working with the epoxy mixture for approximately eight 
 
            hours.
 
            
 
                 Hugh McManus testified that it would have taken him 
 
            approximately 30 to 45 minutes on the long side to apply 
 
            this epoxy mixture to the area involved.
 
            
 
                 The roller used was in court.  It would appear to the 
 
            undersigned that in looking at the size of the roller, it 
 
            could not have taken more than an hour and at the maximum 
 
            two hours to apply four gallons of this epoxy mixture on the 
 
            area involved since the requirement was that this area had 
 
            to be clean beforehand.  Therefore, any exposure could not 
 
            have been as long as claimant contended.
 
            
 
                 The evidence from the expert doctor, Dr. Angle, would 
 
            indicate along with other evidence and data represented in 
 
            exhibits that this was not an unsafe product and that at the 
 
            most it would cause some eye or skin irritation and that if 
 
            there was irritation sufficient to cause claimant problems, 
 
            claimant would have left the area and that this would not 
 
            have caused or could not have caused claimant to have a 
 
            stroke.
 
            
 
                 Dr. Angle did not causally connect claimant's stroke or 
 
            medical problems with the use of the Epoxy 350.  Dr. 
 
            Carnow's causal connection is based on incorrect facts.  The 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            undersigned does not believe he is as qualified to render an 
 
            opinion as Dr. Angle, who is the director of clinical 
 
            toxology and would be more experienced and qualified in this 
 
            area of toxic fumes and the effect on people.
 
            
 
                 Claimant seemed to play down the fact that he had 
 
            hypertension and was on little medicine.  The fact is he was 
 
            being treated for high blood pressure.
 
            
 
                 Mr. McManus indicated he stopped by the store at 
 
            approximately 10:45 on the evening of December 24, 1989, and 
 
            claimant was not there and he left a message for him.
 
            
 
                 There was considerable testimony concerning the 
 
            ventilation or lack of ventilation.  It appears taking into 
 
            consideration the size of space, the fact there was 
 
            construction going on, the fact it was cold outside and that 
 
            this area would be cooler than normal and, therefore, the 
 
            heaters would be operating thereby moving the air more, that 
 
            there was sufficient ventilation.  Claimant has the burden 
 
            of proof and has failed to prove this point, also.
 
            
 
                 The claimant has failed to prove that his work exertion 
 
            was greater than nonemployment life, that the work exertion 
 
            was greater than normal work exertion or that the employee 
 
            was impelled to continue exertion after the onset of any 
 
            symptoms.  Claimant further failed to prove and carry his 
 
            burden of proof to show that any exertion or the work that 
 
            claimant was in fact doing caused his heart attack or 
 
            stroke.  Claimant has failed in his burden to show that the 
 
            fumes were of such toxic nature that they caused or 
 
            precipitated a stroke, that they heightened or lighted up, 
 
            or substantially or materially aggravated a preexisting 
 
            heart hypertension or high blood pressure condition.  The 
 
            undersigned therefore finds that claimant's alleged December 
 
            24, 1989 injury did not arise out of and in the course of 
 
            claimant's employment and that additionally claimant's 
 
            stroke and medical condition which he currently has was not 
 
            caused by any alleged work injury on December 24, 1989, and 
 
            particularly was not caused by claimant being exposed to any 
 
            toxic fumes of such a nature that would cause or did in fact 
 
            cause claimant's stroke which has left him in his current 
 
            medical condition.
 
            
 
                 The above issues dispose of all the other issues in 
 
            this case or make them moot.  The undersigned therefore 
 
            finds that claimant takes nothing from these proceedings.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 24, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 
 
            24, 1989, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 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, section 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 fact-finder must 
 
            determine whether the medically-related stress is more than 
 
            the stress of everyday nonemployment life.
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant did not incur an injury or have a stroke that 
 
            arose out of and in the course of his employment on December 
 
            24, 1989.
 
            
 
                 Claimant's stroke, resulting medical condition and 
 
            medical expenses were not caused by an alleged work injury 
 
            on December 24, 1989.
 
            
 
                 Claimant had a preexisting hypertension or high blood 
 
            pressure condition and said condition was not materially or 
 
            substantially aggravated or lighted up as a result of an 
 
            alleged December 24, 1989 work injury.
 
            
 
                 Claimant has the burden or proof and failed to carry 
 
            his burden as to whether an injury arose out of and in the 
 
            course of his employment or whether there is any causal 
 
            connection to his stroke or medical condition and any 
 
            alleged work injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That claimant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            Copies to:
 
            Mr Scott H Peters
 
            Mr Jacob John Peters
 
            Attorneys at Law
 
            233 Pearl St
 
            P O Box 1078
 
            Council Bluffs IA 51502
 
            
 
            Mr Frank T Harrison
 
            Attorney at Law
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1100; 1108.30
 
                                            1400; 2205
 
                                            Filed October 2, 1992
 
                                            Bernard J. O'Malley
 
            
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARVIN E. KAHLER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931376
 
            HY-VEE FOOD STORES,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1100; 1108.30; 1400; 2205
 
            Held, claimant's alleged injury from toxic fumes did not 
 
            arise out of and in the course of his employment and that 
 
            claimant's stroke was not caused by toxic fumes.  Claimant 
 
            did not carry his burden of proof.
 
            There were two experts who took opposite positions.  Deputy 
 
            accepted the testimony of the defendants' toxicologist over 
 
            the claimant's expert.  Claimant's expert was given 
 
            incorrect facts and based his judgment on facts never 
 
            occurring.  These facts came from claimant and claimant's 
 
            attorney.  There were other items that left claimant's 
 
            doctor's testimony lacking in credibility.