BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DONNA THIEDE,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 950456
 
            ASGROW SEED COMPANY,     
 
                                                A P P E A L
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            PACIFIC EMPLOYERS INSURANCE   
 
            CO. (Sued as CIGNA),     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                               STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from an arbitration decision denying 
 
            claimant death benefits under the Iowa Workers' Compensation 
 
            Act as a result of the death of her husband, Donald Thiede.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; and joint exhibits 1 through 21.  Both 
 
            parties filed briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Claimant does not state the issues on appeal.  
 
            Claimant, in her appeal brief states the following as Brief 
 
            Points I, II III and IV, respectively.  
 
            
 
                    The Deputy Industrial Commissioner erred when 
 
                 she found that Claimant did not prove that Don 
 
                 Thiede's work was the factual cause of his major 
 
                 depressive disorder and subsequent suicide.  
 
            
 
                    The Claimant has shown legal causation also 
 
                 exists in this case and the Deputy Industrial 
 
                 Commissioner was in error in finding otherwise.
 
            
 
                    Defendant's affirmative defense of Don Thiede's 
 
                 willful intent to injury [sic] himself is not 
 
                 valid in this case as Mr. Thiede was severely 
 
                 depressed and not able to enter into a voluntary 
 
                 act. 
 
            
 
                    The Iowa Supreme Court's decision in Kostelac 
 
                 signals a more broad expansion of compensable 
 
                 suicide.
 
            
 
                 Claimant's Brief Points I, II, III and IV shall be 
 
            considered as adequately reflecting the issues claimant 
 
            raises in this appeal.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant, Donna Thiede, is the surviving spouse of 
 
            Donald J. Thiede.  Mr. and Mrs. Thiede were married for 
 
            almost 38 years and lived in Hampton, Iowa.  Mr. Thiede was 
 
            63 years old when he died on March 2, 1990.
 
            
 
                 Don Thiede worked for the defendant, Asgrow Seed 
 
            Company, for more than 25 years.  Prior to his employment 
 
            with the defendant-employer, he had held various sales 
 
            positions since 1950.
 
            
 
                 In 1967, claimant began working for the Farmers Hybrid 
 
            Corn Company, a subsidiary of the Monsanto Company.  
 
            Initially, he worked in the chemical department and after 
 
            three or four years he transferred to the corn department.
 
            
 
                 In 1975, the defendant-employer purchased the 
 
            subsidiary, and claimant began to work as a regional sales 
 
            manager.  He later became a district sales manager where he 
 
            supervised approximately ten sales representatives as well 
 
            as solicited and serviced seed- corn customers.  Mr. Thiede 
 
            was so employed when he died.
 
            
 
                 In November 1989, the Upjohn Company, the owner of 
 
            Asgrow Seed Company, sent information about an early 
 
            retirement program to individuals the company deemed 
 
            qualified to participate in the program.  The program was 
 
            implemented as a part of Upjohn's headcount management 
 
            program and was designed to contribute to  the company's 
 
            overall productivity and profitability.  Program costs would 
 
            be charged against 1989 fourth quarter earnings.  A company 
 
            memorandum of November 7, 1989, generally described the 
 
            program.  The new retirement program offered enhanced 
 
            retirement benefits plus six months salary, both of which 
 
            were features the old plan had not included.  To participate 
 
            in the enhanced program, an employee had to be at least 55 
 
            years old and have had at least 20 years of service with the 
 
            company.  
 
            
 
                 Mrs. Thiede testified that she was not sure whether Mr. 
 
            Thiede had received this information.  She speculated that 
 
            he had not received any information before December 8 or 10, 
 
            1989.  Janice Millholland, a benefits specialist with the 
 
            company, testified that usual procedures were used in 
 
            mailing the notices and that the notice was sent to Mr. 
 
            Thiede on or about November 7, 1989.  
 
            
 
                 This November 7 memorandum broadly explains several 
 
            aspects of the retirement program, including the incentive 
 
            program, deadlines associated with electing to participate 
 
            in the program, and a general question and answer section.  
 
            
 
                 Individuals qualified for the early retirement package 
 
            were sent additional materials on or about November 13, 
 
            1989.  Those materials contained retirement forecasts and 
 
            several retirement election forms that employees were to 
 
            return to the company by December 22, 1989.  If the company 
 
            did not receive these forms by December 22, 1989, otherwise 
 
            eligible employees were excluded from the early retirement 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            program.  The program was strictly voluntary.  Intracompany 
 
            memoranda in evidence strictly prohibited supervisory 
 
            attempts to influence any employee's retirement decision.  
 
            Once an employee decided to participate in the retirement 
 
            package, the decision was irrevocable after December 22, 
 
            1989, however.
 
            
 
                 On December 5, 1989, employees eligible for the program 
 
            received additional correspondence advising them that the 
 
            company was offering professional preretirement financial 
 
            planning and a one hour individual counseling session.  Each 
 
            Asgrow facility was provided with a four-hour seminar tape 
 
            which discussed pre-retirement financial planning and 
 
            counseling.  A manual from Arthur Andersen & Company 
 
            regarding retirement strategies was also provided as were 
 
            comparisons of retirement benefits under both the old and 
 
            the early retirement program. 
 
            
 
                 Mrs. Thiede testified that she first became aware of 
 
            the proposed retirement program during the 1989 Thanksgiving 
 
            holiday.  She and her husband did not discuss the program or 
 
            the decision of whether to retire in great detail.  Mrs. 
 
            Thiede did advise her husband he was not yet ready to 
 
            retire, however.  
 
            
 
                 Mrs. Thiede stated that her husband had not received 
 
            the video tapes regarding the retirement program and 
 
            booklets explaining options of the program until December 
 
            10, 1989.  Both Mr. and Mrs. Thiede were aware that Mr. 
 
            Thiede needed to make a decision about the program on or 
 
            before December 22, 1989.  Mr. Thiede expressed concern 
 
            about the quantity of materials to be  reviewed and his lack 
 
            of time in which to review them.  The initial retirement 
 
            documents of November 7, 1989, had advised that employees 
 
            who believed they qualified for the program contact Jan 
 
            Millholland as soon as possible if they had not received a 
 
            retirement packet on or before November 27, 1989.  Mr. 
 
            Thiede apparently never contacted Ms. Millholland.  Between 
 
            December 10 and December 22, 1989, Mr. and Mrs. Thiede had 
 
            general discussions about retirement.  They had no 
 
            particular discussion about electing to retire under the new 
 
            incentive program, however.  Mr. Thiede expressed monetary 
 
            concerns, and stated he had heard the Asgrow Seed Company 
 
            Division of Upjohn might be sold.  
 
            
 
                 Mr. Thiede continued working during this time.  Dennis 
 
            Waddle, Mr. Thiede's direct supervisor, met with Mr. Thiede 
 
            at least weekly to discuss business.  They discussed the 
 
            retirement option and Mr. Thiede's concern about lacking 
 
            time to review and consider the option.  Mr. Waddle told Mr. 
 
            Thiede to take as much time as necessary to make the 
 
            decision about whether to participate in the retirement 
 
            program even if taking this time made it necessary for Mr. 
 
            Thiede to devote less time to his regular work duties.  On 
 
            December 18, 1989, Mr. Waddle met with Mr. Thiede in Ames.  
 
            Mr. Waddle then knew that Mr. Thiede would be submitting his 
 
            election to participate in the retirement program to Upjohn.  
 
            Mr. Waddle remembered that Mr. Thiede knew that if Mr. 
 
            Thiede changed his mind after the election, he would be able 
 
            to rescind the election on or before December 22, 1989 and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            not thereafter.  Mr. Waddle expressed his belief that Mr. 
 
            Thiede was very positive about his decision to retire.  Mr. 
 
            Waddle's impression was that Mr. Thiede did not feel rushed 
 
            or pressured into retirement.  Several exhibits confirm that 
 
            Mr. Thiede had carefully considered his option to retire and 
 
            had decided to retire as of April 2, 1990.  Notations in 
 
            joint exhibit 6 show that Mr. Thiede remained uncomfortable 
 
            with his decision, however.  On December 18, 1989, Mr. 
 
            Thiede faxed his election to retire to Jan Millholland.  He 
 
            requested forecasts of his payments.
 
            
 
                 On December 21, 1989, Mr. Thiede told his wife that he 
 
            had signed the retirement papers.  During the Christmas 
 
            holiday, Mrs. Thiede noticed a change in her husband's 
 
            behavior and noted that he made several remarks that there 
 
            was "nothing good about retirement."  After Christmas, Mr. 
 
            Thiede kept repeating that he had made a mistake by electing 
 
            to participate in the early retirement program.
 
            
 
                 In January 1990, Mr. Thiede attended a companywide 
 
            sales meeting at the Upjohn home office in Kalamazoo, 
 
            Michigan.  At a cocktail hour at the end of the day's 
 
            regular business events, Jerry Welch, a home office 
 
            supervisor, joked that the company was "finally getting rid 
 
            of two old turkeys," Mr. Thiede and another employee, both 
 
            of whom had elected to retire.  Although Mr. Thiede publicly 
 
            accepted the comment as goodnatured joking, Mr. Thiede 
 
            privately was upset about the comment.  In context, the 
 
            remark was made in jest and was not intended to cause Mr. 
 
            Thiede or the other party insult or distress.  
 
            
 
                 When Mr. Thiede returned from the meeting in Kalamazoo, 
 
            Mrs. Thiede felt he continued to "fight with himself" about 
 
            his decision to retire.  On or about February 8, 1990, Mrs. 
 
            Thiede suggested her husband call Upjohn to see if he could 
 
            rescind his retirement election.  Although Mrs. Thiede felt 
 
            that Mr. Thiede was uncomfortable with admitting that he 
 
            mistakenly had elected to retire, Mr. Thiede did call James 
 
            Fetrow, executive director of Northern and Latin America 
 
            Agronomic Operations for Upjohn, to ask if Mr. Thiede could 
 
            rescind his election.  Mr. Fetrow testified his "heart 
 
            dropped in his throat" at Mr. Thiede's request and that Mr. 
 
            Fetrow advised Mr. Thiede that Mr. Fetrow believed 
 
            rescinding the retirement was not possible.  The employer's 
 
            charging of retirement costs to the fourth quarter 1989 
 
            earnings supports Mr. Fetrow's testimony.  Mrs. Thiede 
 
            testified Mr. Fetrow had indicated to Mr. Thiede that Fetrow 
 
            "thought he could get [Mr. Thiede's] job back."  Mr. Thiede 
 
            was apparently elated with that news.  The record overall 
 
            demonstrates that Mr. Thiede had misinterpreted Mr. Fetrow's 
 
            remarks.  Two days after the initial phone conversation, Mr. 
 
            Fetrow called Mr. Thiede and told him that reversal of the 
 
            procedures for early retirement was not possible.  
 
            
 
                 A letter from Mr. Fetrow to Mr. Thiede of February 20, 
 
            1990, reiterates that the retirement election could not be 
 
            rescinded.  The letter offered Mr. Thiede professional 
 
            counseling to help him cope with both financial and personal 
 
            impact of retirement.  Specifically, Mr. Fetrow indicated 
 
            that psychological counseling was available in either 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Kalamazoo, Michigan or in the Hampton, Iowa area.  Mrs. 
 
            Thiede testified that after Mr. Thiede had received the 
 
            letter, he was upset at the employer's suggestion of 
 
            counseling and became more depressed.  Mrs. Thiede, at one 
 
            point, had suggested that Mr. Thiede discuss his concerns 
 
            regarding retirement with his parish priest.  Mr. Thiede had 
 
            declined to do so although he apparently was not upset with 
 
            her suggestion.  Both the employer's suggestion and Mrs. 
 
            Thiede's suggestion were reasonable attempts to assist Mr. 
 
            Thiede in coping with his concerns regarding retirement.  
 
            Objectively, neither suggestion can be interpreted as 
 
            intended to hurt, harm, or insult Mr. Thiede.  
 
            
 
                 After February 10, 1990, Mrs. Thiede noticed that Mr. 
 
            Thiede's habits and personality changed dramatically.  The 
 
            only thing he could talk about was retirement; he had a loss 
 
            of appetite; he was unable to concentrate; and he found it 
 
            difficult to continue working.  Mr. Thiede was scheduled for 
 
            a business meeting in Arizona from February 27 through March 
 
            1, 1990.  He returned home one day early.  Mrs. Thiede 
 
            noticed another change in his persona, as Mr. Thiede was 
 
            very quiet about his impending retirement.  Mr. Thiede spent 
 
            most of the day following his return with his wife; he 
 
            helped her with errands and jobs around the house; they 
 
            attended a church meeting that evening.  Both went to bed in 
 
            the early morning of March 2, 1990.  
 
            
 
                 The morning of March 2, 1990, Mrs. Thiede woke up at 
 
            approximately 8:30 a.m.  Usually, Mr. Thiede was the first 
 
            to wake up, would prepare coffee, and begin working in his 
 
            office located in the lower portion of their home.  When 
 
            Mrs. Thiede arose, she noticed that Mr. Thiede had not made 
 
            coffee.  She went to her husband's office to check his 
 
            schedule and found an envelope addressed "Personal to 
 
            Donna."  She knew something was wrong and called a neighbor 
 
            who found Mr. Thiede's body in the garage.  He had died from 
 
            self-inflicted gunshot wounds.
 
            
 
                 Mr. Thiede left notes which demonstrate he was very 
 
            distraught over his decision to retire.  He felt that the 
 
            retirement program created a "financial disaster" for his 
 
            family.  Various notes found in his desk show that Mr. 
 
            Thiede blamed the company for rushing him into making the 
 
            decision to retire.  Mr. Thiede felt that the retirement 
 
            program was an "entrapment" and felt that the company had 
 
            not given him assistance in making his decision as to 
 
            whether he should retire.  His notes indicate he felt unable 
 
            to face people because of his decision to retire, and some 
 
            notations state that "many people" told him to "take [the 
 
            retirement program] and run."  Notes also show that Mr. 
 
            Thiede was contemplating legal action against the employer 
 
            relative to his retirement decision.  Several days after Mr. 
 
            Thiede's death, Dennis Waddle and another employee removed 
 
            company displays from Mr. Thiede's garage.  They detected 
 
            bullet holes in the displays.  
 
            
 
                 The record taken as a whole does not support Mr. 
 
            Thiede's perceptions as expressed in his notes and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            conversations with Mrs. Thiede.  The record overall 
 
            demonstrates that the employer dealt with Mr. Thiede fairly 
 
            and reasonably.  As noted, intracompany employer memoranda 
 
            expressly directed that employees not be pressured to retire 
 
            and that all retirement decisions be wholly voluntary.  
 
            Additionally, some 600 other Upjohn employees chose the 
 
            early retirement option within the same time frame as was 
 
            available to Mr. Thiede.  Only one other employee asked for 
 
            reconsideration of the retirement decision after December 
 
            22, 1989.  That request, apparently, also was not granted.
 
            
 
                 Two board certified psychiatrists, Michael Taylor, 
 
            M.D., and James Gallagher, M.D., offered opinions as to the 
 
            cause of Mr. Thiede's mental state and subsequent suicide.  
 
            Neither Dr. Taylor nor Dr. Gallagher had treated Mr. Thiede 
 
            before his death.
 
            
 
                 Dr. Taylor diagnosed Mr. Thiede's condition, in the 
 
            months of January, February and March 1990, as major 
 
            depressive disorder.  Dr. Taylor stated that Mr. Thiede's 
 
            "loss of his job" and his subsequent inability to rescind 
 
            the retirement papers caused his depression.  Dr. Taylor 
 
            described Mr. Thiede as someone for whom "his job was his 
 
            life"; who had very few interests outside his work and 
 
            family.  Dr. Taylor offered that retirement is a situation 
 
            that all workers face at some point in their employment 
 
            life.  Dr. Taylor stated that Mr. Thiede was exposed to 
 
            pressures in addition to the normal day-to-day stresses of 
 
            retirement that all workers encounter, however.  Dr. Taylor 
 
            identified these additional stressors as being:  Mr. 
 
            Thiede's limited time frame in which to make a decision as 
 
            to whether to retire; his perception that the employer did 
 
            not support him or provide proper help to him in making a 
 
            good decision about the retirement program; and his 
 
            perception that the company thought of him as an "old 
 
            turkey." As noted above, the record overall does not support 
 
            Mr. Thiede's perceptions in these regards.  Information 
 
            supplied Dr. Taylor included a conversation with Mrs. Thiede 
 
            and notes Mr. Thiede had written.  Dr. Taylor apparently was 
 
            unaware that Mr. Thiede voluntarily chose to retire.  
 
            
 
                 Dr. Gallagher testified at hearing.  Dr. Gallagher had 
 
            reviewed two depositions from Dr. Taylor; a deposition of 
 
            Donna Thiede; interviews from co-employees and supervisors; 
 
            information from Mr. Thiede's personnel file with Asgrow 
 
            Seed Company; statements from relatives and acquaintances; 
 
            information regarding the early retirement offer; a copy of 
 
            Mr. Thiede's calendar; and medical records.  Dr. Gallagher 
 
            diagnosed Mr. Thiede as having an adjustment disorder with 
 
            depressed moods.  He explained that that diagnosis was not 
 
            dramatically different from Dr. Taylor's diagnosis.  Dr. 
 
            Gallagher surmised that Mr. Thiede's suicide was the result 
 
            of his unhappiness with his decision to retire.  Dr. 
 
            Gallagher agreed retirement is stressful but stated 
 
            retirement is not a stressor beyond the range of human 
 
            events such that it should be so overwhelming as to result 
 
            [in suicide].  He expressed difficulty in understanding 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            [how] the opportunity to voluntary decide to retire and a 
 
            voluntary decision to retire would result [in suicide].  He 
 
            stated Mr. Thiede's voluntary decision to retire contributed 
 
            towards Mr. Thiede's death.  On cross-examination, Dr. 
 
            Gallagher admitted that retirement would not be a usual 
 
            stress in a day-to-day activity of most employees, however.  
 
            He opined that the transition from a working life to 
 
            retirement is difficult for many people and cited financial 
 
            worries and domestic problems as concerns persons who are 
 
            ready to retire may experience.  Dr. Gallagher characterized 
 
            Mr. Thiede as a hard worker who was loyal to his company; 
 
            who was very much invested in his job; who felt he would not 
 
            have a great deal of worth if he were not working; and who 
 
            was angry with the employer over the entire [retirement] 
 
            matter.
 
            
 
                 Neither doctor could point to other stresses in Mr. 
 
            Thiede's life.  There were no evident financial problems; 
 
            Mrs. Thiede opined that she and her husband had had a good 
 
            marriage.
 
            
 
                           APPLICABLE LAW AND ANALYSIS
 
            
 
                 Claimant's Brief Point I, II and IV, generally, may be 
 
            considered as addressing the issue of whether claimant's 
 
            depressed condition and his successful suicide can properly 
 
            be characterized as an injury arising out of and in the 
 
            course of claimant's employment. 
 
            
 
                 In the recent case of Kostelac v. Feldman's, Inc., 497  
 
            N.W.2d 853 (Iowa 1993), the Iowa Supreme Court expressly 
 
            overruled the case of Schofield v. White,, 95 N.W.2d 40 
 
            (Iowa 1959).  Schofield has stood for the proposition that a 
 
            claimant could recover workers' compensation benefits on 
 
            account of an employee's traumatically induced mental injury 
 
            which culminated in suicide only where the claimant could 
 
            prove that the mental condition of the claimant's decedent 
 
            at the time of the suicide was such that the decedent was 
 
            motivated by an uncontrollable impulse or in a delirium of 
 
            frenzy, without  conscious volition to produce death.  In 
 
            place of the Schofield rule, the court in Kostelac held that 
 
            recovery of workers' compensation benefits would be possible 
 
            subsequent to a decedent's suicide upon proof of a chain of 
 
            causation directly linking an employment injury to the 
 
            worker's "loss of normal judgment and domination by 
 
            disturbance of the mind, causing suicide."  Hence, under the 
 
            rule announced in Kostelac, the claimant must prove that but 
 
            for the claimant's decedent's employment injury, the 
 
            deceased employee would not have committed suicide.  The 
 
            Kostelac court reaffirmed, however, that for a claimant to 
 
            recover workers' compensation benefits, the employee's 
 
            suicide must be traced directly to some injury arising out 
 
            of and in the course of the employment.  
 
            
 
                 In Kostelac, the Iowa Supreme Court again declined to 
 
            rule on both the question of whether mental injury, standing 
 
            alone, will give rise to a workers' compensation claim and 
 
            on the issue of what degree of work-related stress would 
 
            justify an award of benefits on account of nontraumatic 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            mental injury.  See also Newman v. John Deere Ottumwa Works 
 
            of Deere & Co., 372 N.W.2d 203 (Iowa 1985); Schreckengast v. 
 
            Hammermills, Inc., 369 N.W.2d 809 (Iowa 1985).  
 
            
 
                 The industrial commissioner has found that work-related 
 
            mental injuries are compensable; and, in the case of mental 
 
            injuries where mental stress without physical trauma is 
 
            alleged, has applied the so called "Wisconsin rule."  Under 
 
            the "Wisconsin rule", a nontraumatically-caused mental 
 
            injury is compensable only when the injury "resulted from a 
 
            situation of greater dimensions than the day-to-day mental 
 
            stresses and tensions which all employees must experience."  
 
            Roche v. Dept. of Community Corrections, Appeal Decision, 
 
            June 17, 1993; Swiss Colony v. Dep't of Indus., L. & H. R., 
 
            72 Wis. 2d 46, 240 N.W.2d 128 (1976).  In other words, both 
 
            medical and legal causation must be resolved before finding 
 
            an injury arising out of employment.  The medical causation 
 
            issue involves an examination into the cause and effect 
 
            relationship between the stresses and tensions at work and 
 
            the mental difficulties.  If the medical causation issue is 
 
            resolved in favor of the claimant, legal causation is 
 
            examined.  Legal causation involves a determination of 
 
            whether the work stresses and tensions, when viewed 
 
            objectively and not as perceived by claimant, were "out of 
 
            the ordinary from the countless emotional strains and 
 
            differences that employees encounter daily without serious 
 
            mental injury."  School Dist. #1 v. Dep't of Indus., L. & H. 
 
            R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974).
 
            
 
                 This is the first claim involving an alleged mental 
 
            stimulus causing a mental or nervous injury the Industrial 
 
            Commissioner is deciding since the court's ruling in 
 
            Kostelac.  While it possible to analyze this case under 
 
            the Wisconsin rule as the deputy did in her initial 
 
            decision, that it not necessary.  Our own court has left us 
 
            sufficient guidance under its application of the chain of 
 
            causation standard to decide this case without inquiry into 
 
            the Wisconsin rule.  In Kostelac, Schreckengast and Newman, 
 
            our court declined to award workers' compensation benefits 
 
            on factual causation grounds such that it was not necessary 
 
            to consider the legal causation standard of Swiss Colony.  
 
            
 
                 Newman was a case where claimant asserted that an 
 
            alleged physical trauma caused his mental injury.  In that 
 
            sense, it differs from this case and the Kostelac and 
 
            Schreckengast cases since, in each of these cases, 
 
            claimants have asserted that mental stress or stimulus 
 
            caused the mental or nervous injury.  Yet, the court's 
 
            finding and ruling in Newman are very consistent with the 
 
            direct chain of causation standard that the court in 
 
            Kostelac reasserted is the law for recovery in mental 
 
            injury cases in the state of Iowa.  In Newman, the employee 
 
            claimed that a small explosion of a welding rod and 
 
            subsequent scalding of his throat produced his mental 
 
            injury.  The employer had introduced evidence demonstrating 
 
            the explosion the employee described was physically 
 
            impossible.  The Newman court held that if physical trauma 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            was imaginary it could form no basis for recovery because, 
 
            on the Newman record, the imaginary physical trauma was a 
 
            product of the employee's mental condition and not of his 
 
            work.  The Newman court stated:
 
            
 
                    We find no cases that permit recovery when the 
 
                 employment merely provided a stage for the nervous 
 
                 injury...  [emphasis in the original]
 
            
 
            The Newman court then expressly declined to accept the 
 
            conclusion that imaginary trauma can be a proximate cause of 
 
            a compensable injury.  Newman, therefore, demonstrates that 
 
            a claimant's internal perceptions must be consistent with 
 
            external reality before those perceptions can form the basis 
 
            for a compensable work-related injury.  Hence, Newman, when 
 
            considered with Kostelac, suggests that our court will 
 
            follow a strict chain of causation standard in considering 
 
            the compensability of any alleged mental injury even when 
 
            the alleged injury has its roots in alleged mental and not 
 
            alleged physical trauma.
 
            
 
                 Under the direct chain of causation standard and the 
 
            premise that the work environment must in fact contribute to 
 
            claimant's mental condition and not merely provide a stage 
 
            for its manifestation, claimant's claim must fail.  No 
 
            direct chain of causation exists between claimant's 
 
            decedent's work situation and his ultimate suicide.  While 
 
            it is undoubtedly true that decedent's suicidal act resulted 
 
            from his perceptions that he had made an inappropriate 
 
            choice in electing retirement and from his perceptions that 
 
            his employer was treating him unfairly both in the matter of 
 
            offering the retirement benefit and in declining to rescind 
 
            claimant's election of retirement after December 22, 1989, 
 
            the record demonstrates that claimant's perceptions in this 
 
            regard are not grounded in fact.  Decedent's beliefs no 
 
            matter how sincerely held are inadequate, of themselves, to 
 
            show a causal relationship between his mental condition and 
 
            his employment and his ultimate suicide.  See, Newman at 
 
            202.  As noted in the above findings of fact, decedent's 
 
            employer offered decedent a voluntary election to retire 
 
            under the special benefit program, dealt fairly with 
 
            decedent in consideration of the retirement program and 
 
            appeared to hold decedent personally in high regard.  Given 
 
            such, decedent's perceptions as to his employer's treatment 
 
            of him and as to the consequences of his retirement arose 
 
            out of his own mental state and not out of any actions of 
 
            the employer.  For that reason, it cannot be said that a 
 
            direct chain of causation between claimant's mental 
 
            condition and his employment and his ultimate suicide has 
 
            been established.  Claimant does not prevail.
 
            
 
                                CONCLUSION OF LAW
 
            
 
                 Claimant has not established that the decedent 
 
            sustained an injury arising out of and in the course of 
 
            decedent's employment such that claimant is entitled to 
 
            death benefits on account of decedent's suicide.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing from these proceedings.
 
            
 
                 Claimant pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                  BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. David D. Drake
 
            Mr. Tom Drew
 
            Attorneys at Law
 
            West Towers Office
 
            1200 35th St. Ste. 500
 
            West Des Moines, IA  50265
 
            
 
            Mr. Raymond Drew
 
            Attorney at Law
 
            320 Central Ave. E
 
            P.O. Box 516
 
            Hampton, IA  50442
 
            
 
            Mr. Charles E. Cutler
 
            Ms. Correen K. Sweeney
 
            Attorneys at Law
 
            729 Ins. Exch. Bldg.
 
            Des Moines, IA  50309
 
            
 
            
 
 
            
 
      
 
            
 
            
 
            
 
                                           1108.20; 2204; 1805
 
                                           Filed September 2, 1993
 
                                           Byron K. Orton
 
                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DONNA THIEDE,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 950456
 
            ASGROW SEED COMPANY,     
 
                                                 A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            PACIFIC EMPLOYERS INSURANCE   
 
            CO. (Sued as CIGNA),     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1108.20; 2204; 1805
 
            
 
                 Claimant did not establish that decedent had sustained 
 
            a mental injury arising out of and in the course of 
 
            decedent's employment such that claimant was entitled to 
 
            death benefits on account of decedent's suicide.  The 
 
            decision does an extensive analysis of the Iowa Supreme 
 
            Court treatment of mental injury claims as gleamed from 
 
            Kostelac v. Feldman's, Inc., 497 N.W.2d 853 (Iowa 1993); 
 
            Newman v. John Deere Ottumwa Works of Deere & Co., 372 
 
            N.W.2d 203 (Iowa 1985); and Schreckengast v. Hammermills, 
 
            Inc., 369 N.W.2d 809 (Iowa 1985).  The decision concludes 
 
            that while the Iowa Supreme Court has consistently declined 
 
            to rule on the applicability of the so called "Wisconsin 
 
            rule," the court has consistently applied a strict direct 
 
            chain of causation standard and required that the work 
 
            environment must in fact contribute to claimant's mental 
 
            condition and not merely provide a stage for that 
 
            condition's manifestation.  In other words, a claimant's 
 
            internal perceptions that work conditions are causing the 
 
            claimant mental or emotional stress must be consistent with 
 
            the external realities of the work environment before those 
 
            perceptions can form the basis for a compensable 
 
            work-related injury.
 
            
 
                 In this case, while claimant perceived that his 
 
            employer had treated him unfairly and had contributed to his 
 
            stress by offering an enhanced retirement program, the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            acceptance of which was nonrevocable after an expressed time 
 
            period; the record established that the employer's dealings 
 
            with the employee were both fair and reasonable and could 
 
            not objectively be considered to be the types of 
 
            employer-employee dealings which would result in significant 
 
            mental distress for the employee.  
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONNA THIEDE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950456
 
            ASGROW SEED COMPANY,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE   :
 
            CO. (Sued as CIGNA),          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Donna 
 
            Thiede.  Mrs. Thiede seeks death benefits under the Iowa 
 
            Workers' Compensation Act.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on April 7, 1992, at Des 
 
            Moines, Iowa.
 
            
 
                 The record in this case consists of live testimony from 
 
            Donna Thiede, Janice Millholland, James Fetrow and Dennis 
 
            Waddle; and, joint exhibits 1 through 21, which include the 
 
            deposition testimony of Michael Taylor, M.D., Ruth Graf and 
 
            Wayne Paige.
 
            
 
                                      ISSUE
 
            
 
                 The parties submit the following issue for resolution:  
 
            Whether claimant is entitled to death benefits under Iowa 
 
            Code section 85.31.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Donna Thiede, is the surviving spouse of 
 
            Donald J. Thiede.  Married for almost 38 years, Mr. and Mrs. 
 
            Thiede lived in Hampton, Iowa.
 
            
 
                 Don Thiede worked for the defendant, Asgrow Seed 
 
            Company, for more than 25 years.  Prior to his employment 
 
            with the defendant, he had held various sales positions for 
 
            several companies since 1950.
 
            
 
                 In 1967, claimant began working for the Farmers Hybrid 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Corn Company, a subsidiary of the Monsanto Company, in 
 
            Minnesota.  Initially, he worked in the chemical department 
 
            and in three or four years was transferred to the corn 
 
            department.
 
            
 
                 In 1975, the defendant purchased the subsidiary, and 
 
            claimant began to work as a regional sales manager.  Later, 
 
            he began duties as a district sales manager, which included 
 
            supervising approximately 10 sales representatives, 
 
            soliciting and serving corn seed customers.
 
            
 
                 Mr. Thiede held this position until his death in March 
 
            of 1990.
 
            
 
                 In November of 1989, Upjohn Company, the owner of 
 
            Asgrow Seed Company, sent information about an early 
 
            retirement program to individuals they deemed qualified to 
 
            retire.  The program was implemented as a part of Upjohn's 
 
            headcount management program and was designed to contribute 
 
            to the company's overall productivity and profitability.
 
            
 
                 Joint exhibit 1, a document dated November 7, 1989, is 
 
            a company memorandum regarding the program.  The new 
 
            retirement program offered enhanced retirement benefits plus 
 
            six months salary, features that the old plan did not 
 
            include.    In order to participate in the enhanced program, 
 
            an employee had to be at least 55 years of age, and have at 
 
            least 20 years of service with the company.  The memo 
 
            explains the special early retirement program, and attempts 
 
            to answer common questions raised about the program.  
 
            Although Mrs. Thiede testified that she was not sure whether 
 
            Mr. Thiede received this information, and at one point 
 
            during her testimony speculated that Don had not received 
 
            any information before December 8 or 10, Janice Millholland, 
 
            a benefits specialist with the defendant company, indicated 
 
            that usual procedures were used in mailing the notices, and 
 
            that the notice would have been sent to Mr. Thiede on or 
 
            about November 7, 1989.
 
            
 
                 This initial document broadly explained several aspects 
 
            of the retirement program, including an explanation of the 
 
            incentive program, the various deadlines associated with 
 
            electing to participate in the plan, and a general question 
 
            and answer section.  Additional materials were to be sent on 
 
            or about November 13, 1989.
 
            
 
                 Joint exhibit 2, dated November 13, 1989, is the second 
 
            set of information sent to individuals qualified for the 
 
            early retirement package and contains retirement forecasts 
 
            and several retirement election forms that were to be 
 
            returned by December 22, 1989.  If these forms were not 
 
            received by the company by December 22, eligible employees 
 
            were excluded from the early retirement program.  The 
 
            program was strictly voluntary, but once an employee decided 
 
            to participate in the retirement package, the decision was 
 
            irrevocable after December 22, 1989.
 
            
 
                 On December 5, 1989, employees eligible for the 
 
            retirement program received additional correspondence 
 
            advising them that the company was offering professional 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            pre-retirement financial planning and a one hour individual 
 
            counseling session.  Each Asgrow facility was provided with 
 
            a four-hour seminar tape which discussed pre-retirement 
 
            financial planning and counseling.  Also provided was a 
 
            manual from Arthur Andersen & Company regarding retirement 
 
            strategies.  Eligible employees were also provided with 
 
            comparisons of retirement benefits under the old program and 
 
            benefits under the early retirement program (Jt. Ex. 2, pp. 
 
            7-8).
 
            
 
                 Mrs. Thiede testified that she first became aware of 
 
            the proposed retirement program during the 1989 Thanksgiving 
 
            holiday.  Although she and her husband did not discuss in 
 
            great detail the program or the decision of whether to 
 
            retire, Mrs. Thiede stated that she told Don he was not yet 
 
            ready to retire.
 
            
 
                 Mrs. Thiede also stated that information consisting of 
 
            two video tapes regarding the retirement program and two 
 
            booklets explaining options of the program were not received 
 
            by Don until December 10, 1989.  Both Mr. and Mrs. Thiede 
 
            were aware that Don needed to make a decision about the 
 
            program on or before December 22, 1989.  Mr. Thiede 
 
            expressed concern about the amount of materials needed to be 
 
            reviewed and the lack of time to review them.
 
            
 
                 Between December 10 and December 22, 1989, Mr. and Mrs. 
 
            Thiede had general discussions about retirement.  She stated 
 
            that Mr. Thiede discussed monetary concerns, and had heard 
 
            about the possible sale of the Asgrow Seed Company Division 
 
            of Upjohn.  However, they had no particular discussion about 
 
            electing to retire under the new incentive program.
 
            
 
                 Mr. Thiede continued working during this time frame.  
 
            Dennis Waddle, Mr. Thiede's direct supervisor, met with Don 
 
            at least weekly to discuss regular business.  The subject of 
 
            retirement came up, and Mr. Waddle told Mr. Thiede to take 
 
            as much time as necessary to make his decision about whether 
 
            to participate in the retirement program.  On December 18, 
 
            1989, Mr. Waddle met with Don Thiede in Ames and was aware 
 
            that Mr. Thiede was going to send in his election to 
 
            participate in the retirement program.  Mr. Waddle 
 
            remembered that Don was aware that if he changed his mind 
 
            about the election, he would be able to rescind the election 
 
            on or before December 22, 1989.  Mr. Waddle stated that he 
 
            felt Don was very positive about his decision to retire, and 
 
            it was his impression that Don did not feel rushed or 
 
            pressured into retirement.  Several of the joint exhibits 
 
            confirm that Don Thiede had carefully considered his option 
 
            and reached a decision to retire on April 2, 1990 (Jt. Ex. 
 
            4, pp. 1-3).  However, notations shown in joint exhibit 6 
 
            show that Mr. Thiede was still uncomfortable with his 
 
            decision (Jt. Ex. 6, pp. 1-3).
 
            
 
                 On December 18, 1989, Don Thiede faxed to Jan 
 
            Millholland his election to retire.  He requested forecasts 
 
            of his payments (Jt. Ex. 4).
 
            
 
                 On December 21, 1989, Don told Mrs. Thiede that he had 
 
            signed the retirement papers.  During the Christmas holiday, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            she noticed a change in his behavior and noted that Don made 
 
            several remarks that there was "nothing good about 
 
            retirement."  After Christmas, Don kept repeating that he 
 
            had made a mistake by electing to participate in the early 
 
            retirement program.
 
            
 
                 In January of 1990, Mr. Thiede attended a company-wide 
 
            sales meeting at the home office of Upjohn in Kalamazoo, 
 
            Michigan.  Apparently, one of the speakers at the meeting, 
 
            while addressing a large group of sales representatives, 
 
            made an insensitive comment about Mr. Thiede's retirement, 
 
            and "joked" that the company was "finally getting rid of two 
 
            old turkeys," Don Thiede and another employee, both of whom 
 
            had elected to retire.  Although publicly Don accepted the 
 
            comment as good natured joking, privately, he was upset 
 
            about the comment (Jt. Ex. 10, p. 5).
 
            
 
                 When Don returned from the meeting in Kalamazoo, Mrs. 
 
            Thiede felt that he continued to fight with himself about 
 
            the decision he had made to retire.  On or about February 8, 
 
            1990, Mrs. Thiede told Don to call Upjohn to see if he could 
 
            rescind his election to retire.  Mrs. Thiede felt that Don 
 
            was uncomfortable with admitting that he had made a mistake 
 
            in electing to retire.
 
            
 
                 Mr. Thiede decided to call James Fetrow, executive 
 
            director of Northern and Latin America Agronomic Operations, 
 
            to try to rescind his election for early retirement.  
 
            According Mrs. Thiede, Mr. Fetrow indicated that "he thought 
 
            he could get Don's job back."  Apparently, Don was elated 
 
            with the news, but two days later Mr. Fetrow called Don and 
 
            told him that he was unable to reverse the procedures for 
 
            early retirement.
 
            
 
                 After February 10, 1990, Mrs. Thiede noticed a dramatic 
 
            change in Mr. Thiede's habits and personality.  Although he 
 
            tried to be positive, the only thing he could talk about was 
 
            retirement.  He had a loss of appetite, was unable to 
 
            concentrate and found it difficult to continue working.
 
            
 
                 At the end of February of 1990, Mr. Thiede went to a 
 
            company function in Arizona.  After he returned, Mrs. Thiede 
 
            noticed another change in his persona, as Don was very quiet 
 
            about his impending retirement.
 
            
 
                 A letter from James Fetrow, dated February 20, 1990, is 
 
            included in the evidence as joint exhibit 8.  Mr. Fetrow's 
 
            letter reiterates that Mr. Thiede's election of retirement 
 
            could not be changed but offered professional counseling to 
 
            help cope with both the financial and personal impact of 
 
            retirement.  Specifically, Mr. Fetrow indicated that 
 
            psychological counseling was available in Kalamazoo or in 
 
            the Hampton area.  Mrs. Thiede testified that after Don had 
 
            received the letter, he was upset at the suggestion of 
 
            counseling and became more depressed.
 
            
 
                 From February 27 through March 1, 1990, Mr. Thiede was 
 
            scheduled for an out-of-town business meeting.  He returned 
 
            home one day early.  Don spent most of the following day 
 
            with his wife, and helped her with errands and jobs around 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the house.  Both went to bed in the early morning.
 
            
 
                 The following morning, Mrs. Thiede stated that she woke 
 
            up at approximately 8:30 a.m.  Usually, Mr. Thiede was the 
 
            first to wake up, would prepare coffee, and begin working in 
 
            his office located in the lower portion of their home.  When 
 
            Mrs. Thiede got up on March 2, 1990, she noticed that the 
 
            coffee had not been made.  She went down to Don's office to 
 
            check on his schedule and found an envelope addressed 
 
            "personal to Donna."  She knew something was wrong and 
 
            called her neighbor who found Mr. Thiede's body in the 
 
            garage.  He had died from self-inflicted gunshot wounds.
 
            
 
                 Mr. Thiede's suicide notes indicate that he was very 
 
            distraught over his decision to retire, and he felt that the 
 
            program created a "financial disaster" for his family.  
 
            Various notes found in his desk show that Mr. Thiede blamed 
 
            the company for rushing him into making the decision to 
 
            retire (Jt. Ex. 10, pp. 1-17).  Mr. Thiede felt that the 
 
            program was an "entrapment" and felt that he was not given 
 
            any personal help to aid in his decision as to whether he 
 
            should retire.  His notes indicate he felt unable to face 
 
            people because of his decision to retire, and some notations 
 
            state that "many people" told him to "take [the retirement 
 
            program] and run." (Jt. Ex. 10, p. 16)  Finally, his notes 
 
            show that Mr. Thiede was contemplating some type of legal 
 
            action against the company (Jt. Ex. 10, p. 16).
 
            
 
                 Several days later, as Dennis Waddle and another 
 
            employee, were removing company displays from Mr. Thiede's 
 
            garage, they detected bullet holes in the displays.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether Don Thiede 
 
            sustained an injury on March 2, 1990, which arose out of and 
 
            in the course of his employment with Asgrow Seed Company.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that the decedent  received an injury on 
 
            March 2, 1990, 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 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant argues that Mr. Thiede sustained a 
 
            mental-mental injury which arose out of and in the course of 
 
            his employment and led to his suicide.  The standard for 
 
            determining whether a mental injury arose out of and in the 
 
            course of employment was discussed in the recent case of 
 
            Ohnemus v. John Deere Davenport Works (Appeal Dec., 
 
            February 26, 1990).   The case stated, in relevant part:
 
            
 
                    In order to prevail claimant must prove that he 
 
                 suffered a non-traumatically caused mental injury 
 
                 that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or a physical condition caused by mental 
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                         We have recognized that in both civil 
 
                      and criminal actions causation in fact 
 
                      involves whether a particular event in 
 
                      fact caused certain consequences to 
 
                      occur.  Legal causation presents a 
 
                      question of whether the policy of the 
 
                      law will extend responsibility to those 
 
                      consequences which have in fact been 
 
                      produced by that event.  State v. Marti, 
 
                      290 N.W.2d 570, 584-85 (Iowa 1980).  
 
                      Causation in fact presents an issue of 
 
                      fact while legal causation presents an 
 
                      issue of law.  Id.
 
            
 
                 That language was the basis of the language in 
 
                 Desgranges v. Dept. of Human Services, (Appeal 
 
                 Decision, August 19, 1988) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                    ....
 
            
 
                    Not only must claimant prove that his work was 
 
                 the factual cause of his mental injury, claimant 
 
                 must also prove that the legal cause of his injury 
 
                 was his work.  In order to prove this legal 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 causation claimant must prove that his temporary 
 
                 mental condition "resulted from a situation of 
 
                 greater dimensions than the day to day mental 
 
                 stresses and tensions which all employees must 
 
                 experience."  Swiss Colony v. Department of ICAR, 
 
                 240 N.W.2d 128, 130 (Wisc. 1976).
 
            
 
                 In the instant case, two psychiatrists have provided 
 
            opinions as to the cause of Mr. Thiede's depression and 
 
            subsequent suicide.
 
            
 
                 Michael Taylor, M.D., a psychiatrist who served as 
 
            claimant's witness, was of the opinion that Mr. Thiede's 
 
            mental state could be diagnosed as a major depressive 
 
            disorder in the months of January, February and March of 
 
            1990 (Jt. Ex. 19, pp. 7-8).  Dr. Taylor indicated that Mr. 
 
            Thiede's depression was caused by the loss of his job and 
 
            the subsequent inability to rescind the retirement papers 
 
            (Jt. Ex. 19, p. 8).  Dr. Taylor also offered that retirement 
 
            is something that all workers face at some point in their 
 
            employment life (Jt. Ex. 21, p. 9).  However, Dr. Taylor 
 
            also stated that Mr. Thiede was exposed to other pressures 
 
            in addition to the normal day-to-day stresses of retirement 
 
            that workers encounter (Jt. Ex. 19, p. 12).
 
            
 
                 In Mr. Thiede's case, these additional stressors 
 
            included a limited time frame to make a decision as to 
 
            whether he wanted to retire; his perception that the company 
 
            was not supporting him or providing proper help to him so 
 
            that he could make a good decision about the retirement 
 
            program; and, his perception that the company thought of him 
 
            as an "old turkey." (Cl. Ex. 19, pages 12-13).  Information 
 
            supplied to Dr. Taylor included a visit with Mrs. Thiede and 
 
            various notes written by Mr. Thiede.  Dr. Taylor 
 
            characterized Mr. Thiede as someone who viewed his job as 
 
            his life, with very few interests outside of work; a person 
 
            proud of his work; and a dedicated employee (Jt. Ex. 19, pp. 
 
            7,13).
 
            
 
                 James Gallagher, M.D., a psychiatrist, testified on 
 
            behalf of defendants.  Dr. Gallagher reviewed two 
 
            depositions from Dr. Taylor; a deposition of Donna Thiede; 
 
            interviews from co-employees and supervisors; information 
 
            from Mr. Thiede's personnel file from Asgrow Seed Company; 
 
            statements from relatives and acquaintances; information 
 
            regarding the early retirement offer; a copy of Mr. Thiede's 
 
            calendar; and, medical records.  Dr. Gallagher diagnosed Mr. 
 
            Thiede as having an adjustment disorder with depressed 
 
            moods.  He explained that his diagnosis was not dramatically 
 
            different than that of Dr. Taylor's (Transcript, page 163).  
 
            Dr. Gallagher surmised that Mr. Thiede's suicide was the 
 
            result of his unhappiness with his decision to retire (Tr., 
 
            p. 163).  Dr. Gallagher also admitted on cross-examination 
 
            that retirement would not be a usual stress in the 
 
            day-to-day activities of most employees (Tr., p. 179).  He 
 
            also indicated that the transition from a working life to a 
 
            retirement life is difficult for most people, and cited 
 
            financial worries and domestic problems as some of the 
 
            concerns experienced by people who are ready to retire (Tr., 
 
            p. 181).  Dr. Gallagher also characterized Mr. Thiede as a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            hard worker who was loyal to his company (Tr., p. 181).
 
            
 
                 It is interesting to note that neither doctor could 
 
            point to any other stresses in Don Thiede's life that may 
 
            have or could have caused him to commit suicide.  There were 
 
            no evident financial problems, and Mrs. Thiede offered that 
 
            she and her husband had a good marriage.
 
            
 
                 Both physicians are credible, and both had essentially 
 
            the same material to review in order to form opinions 
 
            regarding Mr. Thiede's mental state and suicide.  One fact 
 
            that was not made known to Dr. Taylor prior to making his 
 
            assessment of the case is that Don Thiede knew that once a 
 
            decision was made to elect the early retirement package, the 
 
            decision was irrevocable (Jt. Ex. 19, p. 18).  Additionally, 
 
            Dr. Taylor's opinions are based on his assumption that Mr. 
 
            Thiede lost his job, as opposed to making a voluntary 
 
            decision to retire.  Although claimant argues that Mr. 
 
            Thiede's decision was in fact not voluntary, nothing in 
 
            record suggests that the company applied pressure in an 
 
            effort to make Mr. Thiede retire.  There is no doubt that 
 
            Dr. Taylor blames Mr. Thiede's suicide on his decision to 
 
            retire; however, the crux of the issue revolves around the 
 
            fact that it was Mr. Thiede's decision to retire.  As a 
 
            result, Dr. Gallagher's opinion is more reliable, and 
 
            claimant has not proved that Mr. Thiede's work was the 
 
            factual cause of his major depressive disorder and 
 
            subsequent suicide.
 
            
 
                 Even if Mrs. Thiede had proven that her husband's work 
 
            was the factual cause of his mental condition, she must also 
 
            prove that it was the legal cause.  The standard for making 
 
            this determination is whether claimant proved that Mr. 
 
            Thiede's mental condition resulted from a situation of 
 
            greater dimensions than day-to-day mental stresses and 
 
            tensions which all employees must experience.
 
            
 
                 The evidence in this case shows that Mr. Thiede was 
 
            certainly troubled and equivocal about his decision to 
 
            retire, although there is some evidence that shows he had 
 
            been considering his retirement at age 65, approximately one 
 
            year after his death.  Although Mr. Thiede blamed the 
 
            company for his retirement, he had as much notice about the 
 
            early retirement program as all other employees who were 
 
            eligible to participate in the program, the plan offered 
 
            enhanced retirement benefits for eligible employees, and Mr. 
 
            Thiede knew that once he made the decision to retire, the 
 
            decision was irrevocable after December 22, 1989.  It is 
 
            unfortunate that his own perception of his decision appears 
 
            to be so distorted that he became depressed.  Although it is 
 
            difficult to determine whether his situation was greater in 
 
            dimension than situations all employees must experience, 
 
            both physicians in the case testified that the decision to 
 
            retire, and retirement itself will most likely be introduced 
 
            to all employees.  And, all employees who met the criteria 
 
            developed by the company were offered the same options as 
 
            Mr. Thiede.  Although company representatives admitted that 
 
            one other employer had changed his or her mind about the 
 
            retirement program, there is no evidence which suggests all 
 
            of them felt stress overwhelming enough so as to cause 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            depression or mood disorders.
 
            
 
                 In summary, Mrs. Thiede has not proven that her husband 
 
            suffered an injury that arose out of and in the course of 
 
            his employment.
 
            
 
                 Even if she had shown that he had suffered an injury 
 
            that arose out of and in the course of his employment, she 
 
            would not be able to recover if the defendants could prove 
 
            an affirmative defense.  Under Iowa law, benefits are not 
 
            allowed if defendants can prove that the injury was a result 
 
            of a willful intent to injure oneself.  The standard to be 
 
            used under Iowa law is whether the suicide was from a 
 
            "voluntary willful choice determined by moderately 
 
            intelligent mental power which knows the purpose and 
 
            physical effect of the suicidal act."  See Schofield, 95 
 
            N.W.2d at 40.  Again, both physicians had different opinions 
 
            regarding Mr. Thiede's ability to form the requisite willful 
 
            intent to injure himself.  Other evidence, particularly Mr. 
 
            Thiede's notes which define and locate various records and 
 
            financial information, and which admit his plans to commit 
 
            suicide, support Dr. Gallagher's opinions.  Again, Dr. 
 
            Gallagher's opinions are relied upon.  He indicates that 
 
            claimant's actions amounted to a calculated effort by Mr. 
 
            Thiede to take his own life.  His suicide meets that 
 
            standard of affirmative defense.  Therefore, even if Mr. 
 
            Thiede had suffered an injury which arose out of and in the 
 
            course of his employment, Mrs. Thiede's claim is not 
 
            allowed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendants shall pay the costs of this claim.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr David D Drake
 
            Mr. Tom Drew
 
            Attorneys at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Mr Raymond Drew
 
            Attorney at Law
 
            320 Central Ave E
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            P O Box 516
 
            Hampton IA 50441
 
            
 
            Mr Charles E Cutler
 
            Ms Coreen K Sweeney
 
            Attorneys at Law
 
            729 Ins Exch Bldg
 
            Des Moines IA 50309
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
            
 
 
 
                                              5-1100; 5-1805; 5-2204
 
                                              Filed June 29, 1992
 
                                              Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONNA THIEDE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950456
 
            ASGROW SEED COMPANY,          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE   :
 
            CO. (Sued as CIGNA),          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1805; 5-2204
 
            Claimant's decedent, Donald Thiede, worked for defendant 
 
            seed company for more than 25 years.  In early November 
 
            1989, defendant company offered a retirement program with 
 
            enhanced benefits.  Election to participate in the program 
 
            was voluntary, but once an election was made, the decision 
 
            became irrevocable after December 22, 1989.  Claimant's 
 
            decedent chose to retire, with an effective date of April 2, 
 
            1990.
 
            
 
            Claimant became very unhappy with his decision and tried to 
 
            revoke the decision in February 1990.  The company refused, 
 
            but offered psychological and financial help.
 
            Claimant's decedent killed himself on March 2, 1990.
 
            Claimant, surviving spouse, alleged a mental-mental injury 
 
            that led to death.
 
            
 
            Benefits denied, as claimant failed to prove that decedent's 
 
            mental condition (depression) resulted from a situation of 
 
            greater dimensions than the day-to-day mental stresses and 
 
            tensions which all employees must experience.
 
            
 
 
         
 
        
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         ARMANDO SOLIS,                :
 
                                       :         File No. 950490
 
              Claimant,                :
 
                                       :      A R B I T R A T I O N
 
         vs.                           :
 
                                       :         D E C I S I O N
 
         IBP, INC.,                    :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Armondo G. Solis, against his self-insured employer, 
 
         IBP, defendant.  The case was heard on March 29, 1993 at the 
 
         Bicentennial Building in Davenport, Iowa.  Ms. Rosa Knapp served 
 
         as a certified interpreter in the Spanish language.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Kent A. Jayne, certified 
 
         rehabilitation counselor, and the testimony of Mr. Terry 
 
         Zimmerman, medical case manager at defendant's establishment in 
 
         Louisa County, Iowa.  Additionally, the record consists of 
 
         claimant's exhibits 1-3, defendant's exhibit A and joint exhibits 
 
         A-J.
 
         
 
                                      ISSUES
 
         
 
              The sole issue to be determined is:
 
         
 
              The nature and extent of claimant's permanent partial 
 
         disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is a 27-year-old married father of five-month-old 
 
         twin daughters.  He was born in Durango, Mexico.  He immigrated 
 
         to the United States in 1983.
 
         
 
              Prior to coming to Iowa, claimant worked as a migrant field 
 
         hand where he was engaged in picking strawberries.  He also 
 
         worked as a dishwasher in Arizona.  Claimant had no special work 
 
         skills.  His formal education had been minimal, at best.  He 
 
         started seventh grade when he lived in Mexico, however, he never 
 
         completed that grade.  When he arrived in the United States, 
 
         claimant took a basic English course.  Nevertheless, at the time 
 
         of the hearing, he was unable to speak, read or write English.  
 
         An interpreter was provided to claimant during the hearing 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         proceeding.
 
         
 
              Approximately four years ago, claimant moved to Iowa from 
 
         California.  In September of 1989, he was hired by defendant to 
 
         work in its meat packing plant.  There he removed by hand lard 
 
         from animal carcasses.  He was hired as a full time employee and 
 
         often he worked 48 hours per week.
 
         
 
              After approximately one month of employment, claimant began 
 
         experiencing pain in the bilateral shoulder area, the hands, and 
 
         in the right mid-back area.  Claimant sought medical treatment 
 
         from Dr. Honold, M.D., (first name unknown) who diagnosed 
 
         claimant's condition as myofascial strain.  Several months later, 
 
         claimant saw Dr. Honold's associate, Forrest Dean, M.D.
 
         
 
              Dr. Dean diagnosed claimant's condition as systemic inflam
 
         matory joint disease which was aggravated by claimant's employ
 
         ment.  According to Dr. Dean, the inflammatory joint disease 
 
         affected claimant's arms, hands and back (Exhibit B-1, page 9).  
 
         Claimant was treated conservatively with anti-inflammatory medi
 
         cations and given work restrictions (Ex. B-21).  During his 
 
         course of treatment, claimant saw Dr. Dean on a number of 
 
         occasions.
 
         A note in claimant's medical file, which was maintained by the 
 
         employer, contained a quotation which was attributable to Dr. 
 
         Dean.  The note stated:  "You are unsuited for repetitive move
 
         ment activities and your body does not tolerate these well.  I 
 
         would recommend that you seek alternative less physical activity 
 
         for employment so you do not injure your body in any permanent 
 
         way."  (Exhibit I-8)
 
         
 
              Dr. Dean noted in his office record of October 23, 1990:
 
         
 
              I feel he has failred [sic] to improve with any medical 
 
              management and will not improve any in the future.  It 
 
              is my impression that he is permanently medically 
 
              impaired and will be unable to be employable with any 
 
              repetitive gripping, grasping, lifting, bending, stoop
 
              ing, laboring-type of endeavor.  Since Armando has no 
 
              demonstrable impairment in range of motion at this 
 
              time, I would arbitrarily give him a 10% whole-body 
 
              permanent medical impairment due to his exacerbation of 
 
              his pain.
 
         
 
         (Ex. B-21)
 
         
 
              Dr. Dean reiterated his impairment rating in his deposition 
 
         which was taken on November 20, 1992.  He opined that:  "It's a 
 
         summary of Mr. Solis' treatment trials, of his objective labora
 
         tory, x-ray, clinical findings, I have the results and his cur
 
         rent state as far as range of motion and physical limits and then 
 
         a conclusion about cause and effect."  (Ex. B-8, lines 10-15).
 
         
 
              On July 12, 1990, claimant was placed on a medical leave of 
 
         absence due to his work injury.  He remained on the medical leave 
 
         of absence for one year.  Then claimant was terminated.  Mr. 
 
         Zimmerman testified that for the past fifteen months there had 
 
         been a program at the plant where employees who had been on 
 
         medical leave for a year and who had medical restrictions, could 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         bid on other positions in the plant.  He testified that only one 
 
         employee, in the history of the program, had ever been successful 
 
         in bidding into a position.  Claimant, as of March 2, 1993, 
 
         requested another plant position which would be within claimant's 
 
         medical restrictions (Ex. D).  As of the date of the hearing, 
 
         claimant had not been offered a position with defendant.
 
         
 
              Claimant was sent to Rouben Mirbegian, M.D., for another 
 
         examination and evaluation.  Dr. Mirbegian opined that:
 
         
 
              [T]here was no asymmetry of his right or left upper 
 
              extremities.  I could not find any muscle atrophy in 
 
              his upper or lower extremities.  He had full range of 
 
              motion of the neck, upper extremity, lower extremity.  
 
              The only positive findings was grinding both in AC 
 
              joint in range of motion of both shoulders.  This also 
 
              is questionable to me if it is causing his discomfort, 
 
              because he had same type of grinding in the right 
 
              side....  I believe all his problems go along with 
 
              overuse syndrome, maybe once he started working at IBP 
 
              he was not used to type of work he was supposed to do.
 
         
 
              In summary, I do not find any objective findings that 
 
              would allow me to let this patient stay on light work 
 
              except for restriction for 8 weeks.  I do not believe 
 
              that he has any permanent impairment damages.  I 
 
              believe he should be able to return to his work without 
 
              any restriction anytime.
 
         
 
         (Ex. H)
 
         
 
              Claimant was examined by R. F. Nieman who ordered an EMG.  
 
         The results of the test showed that:
 
         
 
              IMPRESSION:  Despite a clinical examination which is 
 
              nonrevealing and the EMG study which is likewise 
 
              normal, he still might have some degree of a chronic 
 
              strain about his shoulders.  I see no structural 
 
              pathology.  X-rays of the neck are likewise entirely 
 
              normal.  I do not have any easy answer for him.  I 
 
              suggest he have light duty at work if possible.
 
         
 
         (Ex. G)
 
         
 
              For purposes of an evaluation, claimant was also examined by 
 
         James B. Worrell, M.D.  In his report of July 19, 1991, Dr. 
 
         Worrell opined the following relative to claimant's condition 
 
         following his employment at IBP:
 
         
 
              Impression:  Mr. Solis, therefore, has a diffuse aches 
 
              and pains disorder compatible with a myofascial syn
 
              drome.  He has had this disorder now since early 1990 
 
              anyway and it does not appear that he will improve or 
 
              be able to get back to work.  There is no sign of any 
 
              other underlying neuromuscular disease.  It would be my 
 
              recommendation, therefore, that he be assigned a perma
 
              nent partial impairment rating of perhaps 8 per cent of 
 
              the body as a whole because of his pain.  I see no 
 
              other tests that need to be done or the like.  If any 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              further questions come up with this, please let me 
 
              know.
 
         
 
         (Ex. C-2)
 
         
 
              Testimony at the hearing indicated that claimant had been 
 
         employed subsequent to the date of his termination from defen
 
         dant.  Claimant testified he worked at El Charro's Restaurant on 
 
         two separate occasions.  While employed there, he was hired to 
 
         place cheese onto plates and to wash dishes.  The periods of 
 
         employment were in October and November of 1992, and again in 
 
         January of 1993.  Claimant testified he terminated his employment 
 
         at the restaurant because his hands began to hurt.  At the time 
 
         of the hearing claimant was not employed.
 
         
 
              In anticipation of the pending hearing, both parties hired 
 
         vocational rehabilitation counselors to study claimant's employa
 
         bility.  Neither counselor was hired to find a position for 
 
         claimant.  Kent A. Jayne was hired by claimant to evaluate 
 
         claimant's employability and potential.  Maggie Reelfs was 
 
         retained by defendant to study claimant's access to the labor 
 
         market.  Given their respective clients, the opinions of the 
 
         vocational rehabilitation counselors were quite predictable.
 
         
 
              Ms. Reelfs opined that:
 
         
 
              In summary, from the available labor market informa
 
              tion, Mr. Solis should be able to find a job in the 
 
              Iowa City area or perhaps Muscatine to accommodate his 
 
              light duty work and also to fit in with what he can do.
 
         
 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         With a small amount of training, he should be able to 
 
         do some of these jobs.
 
         
 
              
 
         (Ex. J-6)
 
         
 
              Mr. Jayne opined that:
 
         
 
              It is therefore my opinion that Armando Solis has suf
 
              fered close to a total loss of earning capacity as a 
 
              result of his disability.
 
         
 
              If Mr. Solis chooses to pursue employment in the Mid
 
              west, recommendations would include English as a Second 
 
              [sic] language classes [sic], Adult Basic Education 
 
              classes leading to a possible GED, and an extended 
 
              evaluation through the Division of Vocational Rehabili
 
              tation to determine if any residual capacities or apti
 
              tudes may be significant enough for enhancement through 
 
              retraining efforts.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The sole issue in this case is the nature and extent of 
 
         claimant's permanent partial disability.  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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, its mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is mate
 
         rially aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity to engage in employment for which the employee is fitted.  
 
         Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
         (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or func
 
         tional abnormality or loss.  Although loss of function is to be 
 
         considered and disability can rarely be found without it, it is 
 
         not so that a degree of industrial disability is proportionally 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; earn
 
         ings prior and subsequent to the injury; age; education; motiva
 
         tion; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job trans
 
         fer for reasons related to the injury is also relevant.  Like
 
         wise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are mat
 
         ters which the finder of fact considers collectively in arriving 
 
         at the determination of the degree of industrial disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of func
 
         tional impairment directly correlate to a degree of industrial 
 
         disability to the body as a whole.  In other words, there are no 
 
         formulae which can be applied and then added up to determine the 
 
         degree of industrial disability.  It therefore becomes necessary 
 
         for the deputy or commissioner to draw upon prior experience as 
 
         well as general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Christensen 
 
         v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commis
 
         sioner Decisions 529 (App. March 26, 1985); Peterson v. Truck 
 
         Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commis
 
         sioner Decisions 654 (App. February 28, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 
 
         the Iowa court formally adopted the "odd-lot doctrine."  Under 
 
         that doctrine a worker becomes an odd-lot employee when an injury 
 
         makes the worker incapable of obtaining employment in any 
 
         well-known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         "so limited in quality, dependability, or quantity that a reaso
 
         
 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         nably stable market for them does not exist."  Guyton, 373 N.W.2d 
 
         at 105.
 
         
 
              The burden of persuasion on the issue of industrial disabil
 
         ity always remains with the worker.  When a worker makes a prima 
 
         facie case of total disability by producing substantial evidence 
 
         that the worker is not employable in the competitive labor mar
 
         ket, the burden to produce evidence of suitable employment shifts 
 
         to the employer, however.  If the employer fails to produce such 
 
         evidence and if the trier of fact finds the worker does fall in 
 
         the odd-lot category, the worker is entitled to a finding of 
 
         total disability.  Guyton, 373 N.W.2d at 106.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of evidence in determining whether the 
 
         worker's burden of persuasion has been carried, and only in an 
 
         exceptional case would evidence be sufficiently strong as to com
 
         pel a finding of total disability as a matter of law.  Guyton, 
 
         373 N.W.2d at 106.
 
         
 
              Defendant does not deny that claimant has sustained a perma
 
         nent partial disability to the body as a whole as a result of a 
 
         work-related cumulative injury.  The fighting issue here is the 
 
         nature and extent of that permanent partial disability.
 
         
 
              Claimant's education is minimal, at best.  He is a very 
 
         young man but he does not have a working knowledge of the English 
 
         language.  It is doubtful whether additional schooling will bene
 
         fit claimant or whether additional training will enhance 
 
         claimant's marketability.  Claimant's access to the labor market 
 
         has always been limited, given his substandard language skills.  
 
         Now that he has a permanent impairment with severe restrictions, 
 
         his access will be even more limited.
 
         
 
              Defendant has made little effort to accommodate claimant in 
 
         the workplace.  It is true defendant has instituted a program to 
 
         return injured employees to work, once the injured employees have 
 
         been given permanent work restrictions.  However, the program is 
 
         nominal, in that only one employee in fifteen months has ever 
 
         been successful in bidding into a job.  It is highly unlikely 
 
         claimant will ever be accommodated, although he has requested a 
 
         job within his medical restrictions.
 
         
 
              Claimant argues that he is an odd-lot employee under Guyton, 
 
         supra.  As aforementioned, when a worker makes a prima facie 
 
         case of total disability by producing substantial evidence that 
 
         the worker is not employable in the competitive labor market, the 
 
         burden to produce evidence of suitable employment shifts to the 
 
         employer.  Here, claimant has produced some evidence that he is 
 
         not employable in the competitive labor market.  However, defen
 
         dant has produced evidence of suitable employment.  Claimant is 
 
         still capable of working as an institutional cook, kitchen 
 
         helper, laundry worker, or housekeeper.  The undersigned finds 
 
         claimant, with his language deficit, is probably not capable of 
 
         working at all of the potential jobs provided by Ms. Reelfs.  It 
 
         is difficult to imagine that an employee who cannot read or write 
 
         English can work as a material handler or that he is capable of 
 
         making light deliveries in a truck.
 
         
 
              It is acknowledged that at all times prior to the work 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         injury, claimant has worked at jobs which pay at or near minimum 
 
         wage levels.  Given the fact that his access to minimum wage 
 
         level jobs has decreased, claimant has encountered a loss of 
 
         earning capacity as a result of his work injury.  Claimant has 
 
         also sustained a loss of actual earnings.
 
         
 
              Therefore, in light of the foregoing, as well as in light of 
 
         the testimony, and this deputy's observations of claimant, it is 
 
         the determination of the undersigned that claimant has a 30 per
 
         cent permanent partial disability.  He is entitled to 150 weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of $125.83 per week and commencing on October 24, 1990.
 
         
 
                                      ORDER
 
         
 
              Claimant is entitled to one hundred fifty (150) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         one hundred twenty-five and 83/l00 dollars ($125.83) per week and 
 
         commencing on October 24, 1990.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent(10%) per year.
 
         
 
              Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division and pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of May, 1993.
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William J. Bribriesco
 
         Attorney at Law
 
         2407 18th Street
 
         Suite 202
 
         Bettendorf, Iowa  52722
 
         
 
         Mr. John M. Comer
 
         Attorney at Law
 
         P O Box 515
 
         Dakota City, Nebraska  68731
 
         
 
 
         
 
 
 
 
 
                                               1400; 1803; 4100
 
                                               Filed May 18, 1993
 
                                               MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         ARMANDO SOLIS, 
 
                                              File No. 950490
 
              Claimant, 
 
                                          A R B I T R A T I O N
 
         vs.       
 
                                              D E C I S I O N
 
         IBP, INC.,     
 
                   
 
              Employer, 
 
              Self-Insured,  
 
              Defendant.     
 
         ___________________________________________________________
 
         
 
         
 
         1400, 1803, 4100
 
         Claimant argued he was an "odd-lot employee", under Guyton v. 
 
         Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).  Claimant 
 
         produced some evidence there was no suitable employment in the 
 
         competitive labor market.  However, defendant then produced 
 
         evidence that employability was possible.
 
         
 
         Claimant was awarded a 30 percent permanent partial disability as 
 
         a result of the repetitive activities he performed in the 
 
         workplace.
 
         
 
         Claimant had little objective evidence to support a finding of 
 
         permanent impairment.  However, two physicians, including the 
 
         treating physician, rated claimant as having from 8 to 10 percent 
 
         permanent impairment.  The treating physician placed severe 
 
         restrictions upon claimant.  He was to avoid all repetitive, 
 
         gripping, grasping, lifting, stooping and bending.
 
         
 
         Claimant was 27 years old.  He could not read, write, or speak 
 
         English, despite the fact he had been in the United States for 
 
         more than ten years.  There was little hope that claimant would 
 
         ever master the English language.  Additional education did not 
 
         seem to be a viable prospect for claimant.
 
         
 
         Throughout claimant's work history, he had always been employed 
 
         in unskilled type labor positions, usually at a minimum wage 
 
         level.  His access to the labor market had been reduced because 
 
         of his work injury.  His earning capacity had been reduced as a 
 
         result of the work injury.
 
         
 
         Defendant had not done much in the way of accommodating claimant 
 
         in the workplace.  While defendant had instituted a program in 
 
         the workplace whereby injured employees could bid into other 
 
         positions if the injured employees were under permanent work 
 
         restrictions, only one employee in fifteen months had been 
 
         successful at bidding into a job.  Claimant had requested to be 
 
         rehired by defendant but at the time of the hearing defendant had 
 
         not rehired claimant.
 
         
 
 
            
 
 
 
 
 
                        
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            MILO BROKAW,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 950588
 
            SCHMIDT DAIRY EQUIPMENT,   
 
                                                   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.  The decision of the deputy 
 
            filed September 30, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave. SW, Ste 114
 
            Cedar Rapids, Iowa 52404
 
            
 
            Mr. E.J. Giovannetti
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
         
 
 
 
 
 
                                
 
                                         5-1108.40; 5-1401; 5-1402.20
 
                                         5-1402.30; 5-2206; 5-2209
 
                                         Filed March 17, 1993
 
                                         Byron K. Orton
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         MILO BROKAW,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                              File No. 950588
 
         SCHMIDT DAIRY EQUIPMENT,   
 
                                                A P P E A L
 
              Employer,   
 
                                             D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL COMPANIES,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         5-1108.40; 5-1401; 5-1402.20; 5-1402.30; 5-2206; 5-2209
 
         Claimant failed to prove an injury arising out of and in the 
 
         course of employment.  Claimant suffered (1) a left wrist 
 
         ganglion; (2) a tear of the scapholunate ligament; and (3) a tear 
 
         of the lunotriquetal ligament.
 
         Claimant awoke in the sleeper of the cab of his truck with severe 
 
         left wrist pain.  He did not describe either a traumatic event or 
 
         a cumulative injury either in his testimony at hearing or to any 
 
         of the doctors.  On the contrary he related a history of either 
 
         (1) pushing up on a table; or (2) leaning with both hands on a 
 
         table at his mother's place, when he first experienced wrist 
 
         pain.  Claimant had been off work for three months and had only 
 
         worked five days when the incident occurred.  The second wrist 
 
         became symptomatic a year after claimant no longer drove trucks, 
 
         loaded or unloaded, tarped, strapped and chained.
 
         Treating surgeon's attempt to say that driving a truck, loading 
 
         and unloading, tarping, strapping and chaining aggravated his 
 
         condition may have made him more susceptible was not supported by 
 
         his own medical notes, letters or reports.  Moreover, the burden 
 
         of proof is probability.  A possibility is not sufficient.  No 
 
         other evidence corroborated the physicians "possible" scenario.
 
         Neither the treating surgeon at the Mayo Clinic nor any of the 
 
         local physicians could determine the etiology or cause of 
 
         claimant's wrist problems.  The reason for his wrist problems was 
 
         unexplained.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            TERRY SILLIMAN,       
 
                        
 
                 Claimant,                  File No. 950589
 
                        
 
            vs.                              A P P E A L
 
                        
 
            DRIVER DISPATCH,               D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed November 27, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Although claimant's attorney signed the pre-hearing report 
 
            indicating that certain issues were stipulated, the report 
 
            was not signed by defendant's attorney.  Defendant's 
 
            attorney did not attend the hearing and in fact had not 
 
            filed an answer or otherwise responded in this case.  The 
 
            alleged stipulations were claimant's estimates of his own 
 
            disability and healing period. 
 
            Claimant's attorney incorrectly equates a lack of active 
 
            resistance with a stipulation.  A stipulation is a conscious 
 
            agreement that an issue will not be contested.  Defendant's 
 
            nonparticipation falls far short of such an agreement.  
 
            Claimant bears the burden of proof, and has failed to offer 
 
            evidence to support his claim for healing period or 
 
            permanency benefits.  
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Tom Drew
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50265
 
            
 
            Drivers Dispatch
 
            414 E. 5th St.
 
            Des Moines, Iowa 50309
 
            CERTIFIED AND REGULAR MAIL
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9999
 
                                               Filed October 9, 1992
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            TERRY SILLIMAN,       
 
                        
 
                 Claimant,                  File No. 950589
 
                        
 
            vs.                              A P P E A L
 
                        
 
            DRIVER DISPATCH,               D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed November 27, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY SILLIMAN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950589
 
            DRIVER DISPATCH,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Terry Silliman, against his former employer, 
 
            Driver Dispatch, as defendant.  A review of the file shows 
 
            that the defendant was properly served and received the 
 
            original notice and petition, but has failed to file an 
 
            answer, and failed to appear at the hearing which was held 
 
            on October 15, 1991, in the Industrial Commissioner's 
 
            Office, in Des Moines, Iowa.
 
            
 
                 The evidence in this case consists of claimant's 
 
            exhibit 1, and the testimony of the claimant.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 On July 13, 1990, claimant, Mr. Silliman, was working 
 
            for the defendant employer.  His immediate supervisor was 
 
            Gary McDowell.  Claimant stated that on July 13, 1990, he 
 
            was injured when he was involved in a truck accident in 
 
            Baltimore, Maryland.  Claimant described the accident as 
 
            driving off of a ramp from the interstate, when he noticed a 
 
            truck at the bottom of the hill.  Claimant slid into the 
 
            truck, and broke the windshield with his head.
 
            
 
                 Claimant received no medical treatment immediately 
 
            following the accident.  While driving home, he began to 
 
            feel pain in his head, and spasms down his back.  He 
 
            received medical treatment at the Mercy emergency room when 
 
            he returned to Des Moines, Iowa.  Claimant was treated by 
 
            the emergency room personnel at Mercy Hospital Medical 
 
            Center in Des Moines, Iowa.  Claimant's exhibit 1, pages 6-9 
 
            shows that claimant received medical treatment on July 15, 
 
            1990.  The bill indicates that claimant underwent cervical 
 
            spine x-rays, new patient service and one outpatient visit.
 
            
 
                 Additional notations made on the Mercy Hospital Medical 
 
            Center billing information indicate that claimant went in 
 
            for additional x-rays of the lumbar and dorsal spine on July 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            27, 1990.
 
            
 
                 Claimant received further treatment in September of 
 
            1990, as he was admitted to the emergency room at Mercy 
 
            Hospital Medical Center, and received prescription drugs and 
 
            medical services (Cl. Ex. 1, p. 7).
 
            
 
                 Claimant's complaints centered on headaches, and neck 
 
            problems.
 
            
 
                 In January and February of 1991, claimant returned to 
 
            the emergency room at Mercy Hospital Medical Center to 
 
            receive additional medications and service.  Claimant's 
 
            exhibit 1, page 1, indicates that two diagnoses were made, 
 
            headache and toxic encephalopathy.  The latter term 
 
            envisions some type of poisoning and degenerative changes of 
 
            the brain.
 
            
 
                 In March of 1991, claimant was treated by Steven R. 
 
            Adelman, D.O., at Neurological Associates of DM, P.C.  Once 
 
            again, the evidence submitted shows claimant displaying head 
 
            and neck symptoms and headache (Cl. Ex. 1, p. 2).
 
            
 
                 Finally, the evidence shows that claimant was admitted 
 
            to the Clarke County Hospital in Osceola, Iowa, on May 17, 
 
            1991.  The evidence submitted does not reflect why claimant 
 
            sought treatment from Clarke County Hospital although his 
 
            testimony indicated that he was again suffering from 
 
            headaches (Cl. Ex. 1, p. 3).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant sus
 
            tained an injury on July 13, 1990, which arose out of and in 
 
            the course of his employment with Drivers Dispatch.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 13, 1990, 
 
            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 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Without evidence to the contrary, claimant through his 
 
            testimony established that on July 13, 1990, he was working 
 
            for the employer as a truck driver.  Claimant indicated that 
 
            while he was in Baltimore, Maryland hauling a load for the 
 
            defendant, he was involved in a motor vehicle accident.  
 
            Claimant testified that he was performing the duties 
 
            required by his job position.  His testimony indicates that 
 
            he was performing his duties at the time, place and manner 
 
            required by the employer.  As a result, it is found that 
 
            claimant received an injury which arose out of and in the 
 
            course of his employment.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits as provided for under Iowa Code 
 
            section 85.27.
 
            
 
                 The Code states, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.
 
            
 
                 Claimant retains the burden of proving by a 
 
            preponderance of the evidence that there is a causal 
 
            connection between the injury sustained and the medical 
 
            treatment rendered.   Auxier v. Woodward State Hospital 
 
            School, 266 N.W.2d 139, 144 (Iowa 1978).  In order to prove 
 
            that the medical treatment claimant received is causally 
 
            connected to the injury, claimant must show that the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980).
 
            
 
                 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).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant has provided no expert testimony which makes a 
 
            causal connection between the services rendered to claimant 
 
            and the injury.  Two days following the accident, claimant 
 
            received medical treatment from Mercy Hospital Medical 
 
            Center.  The notes indicate that claimant made repeated 
 
            phone calls to Mercy Hospital regarding the submission of 
 
            the bills to the employer's workers' compensation insurance 
 
            carrier.  At that point, the employer denied liability, and 
 
            claimed that the injuries were sustained in an incident 
 
            unrelated to work.
 
            
 
                 Claimant waited two days to seek medical treatment.  
 
            According to the limited information contained in the 
 
            notations to the medical bills, the history given by 
 
            claimant is consistent with his testimony.
 
            
 
                 However, the more remote the securing of medical 
 
            services becomes, the more necessary it is for claimant to 
 
            provide expert opinion that the services rendered have been 
 
            rendered because of the work-related incident.
 
            
 
                 Of particular concern is the medical services provided 
 
            to claimant after January of 1991.  Although the complaints 
 
            and treatments appear to be identical, the diagnosis changed 
 
            to "toxic encephalopathy" in February of 1991.  From the 
 
            evidence received, it is only possible that the continuing 
 
            medical services were treating claimant for injuries he 
 
            received in the work-related accident.
 
            
 
                 Medical bills from Dr. Adelman provide no guidance as 
 
            to whether claimant was seeking treatment due to the work-
 
            related injuries.  Likewise, Clarke County Hospital billings 
 
            do not indicate claimant had sustained an injury while 
 
            working, and required medical treatment.
 
            
 
                 As a result, medical services rendered prior to 
 
            February 1, 1991, are compensable, and defendant is ordered 
 
            to pay claimant's bills totaling $1,121.52.  Mileage, paid 
 
            at a rate of $.21 per mile, shall be paid to claimant for 
 
            round trips made to Mercy Hospital Medical Center from July 
 
            1990 through January 1991.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits, or 
 
            permanent partial disability benefits.
 
            
 
                 As a general rule, temporary total disability benefits 
 
            are awarded where claimant has sustained no permanent loss 
 
            due to a work-related injury.  Healing period benefits are 
 
            awarded where there is an indication that a claimant, due to 
 
            a work-related injury, sustained some type of permanent 
 
            functional impairment.
 
            
 
                 Claimant prays for healing period benefits from the 
 
            date of the accident, July 13, 1990, through August 7, 1990.  
 
            Claimant has provided the undersigned with no medical 
 
            documentation that verifies it was necessary for claimant to 
 
            be off of work from July 13, 1990 through August 7, 1990.  
 
            In fact, if claimant's accident occurred on July 13, 1990, 
 
            and claimant had to return to Des Moines, Iowa, and claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            did so return on July 15, 1990, claimant was still working 
 
            on July 14 and July 15, 1990.  Without expert medical 
 
            testimony or documentation indicating it was necessary for 
 
            claimant to be off of work, claimant will not be awarded any 
 
            type of benefits for this period.  Likewise, claimant has 
 
            shown no permanent functional impairment, nor has he shown 
 
            any medical restrictions which would prevent him from 
 
            working.  As a result, claimant has failed to prove by a 
 
            preponderance of the evidence that he is entitled to 
 
            temporary total or healing period benefits or permanent 
 
            partial disability benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant is ordered to file a first report of 
 
            injury, as required by Iowa Code sections 86.11 and 86.12.  
 
            Failure to file the first report may result in penalties 
 
            under Iowa Code section 86.12.
 
            
 
                 That claimant received an injury on July 13, 1990, 
 
            which arose out of and in the course of his employment.
 
            
 
                 That defendant shall pay medical benefits totaling one 
 
            thousand one hundred twenty-one and 52/100 dollars 
 
            ($1,121.52) and mileage, as required by Iowa Code section 
 
            85.27.
 
            
 
                 That claimant has failed to prove by a preponderance of 
 
            the evidence that he was required to be off work due to 
 
            medical reasons related to the work-related injury from July 
 
            13, 1990 through August 7, 1990.
 
            
 
                 That claimant has failed to prove by a preponderance of 
 
            the evidence that he sustained any type of permanent injury.
 
            
 
                 That defendant shall pay the costs of this proceeding.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Tom L Drew
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Drivers Dispatch
 
            414 E 5th
 
            Des Moines IA 50309
 
            CERTIFIED & REGULAR MAIL
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                      5-1108
 
                      Filed November 27, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY SILLIMAN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 950589
 
            DRIVER DISPATCH,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant was awarded medical benefits.