Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT C FRIEDERICH,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :File Nos. 967391 & 988003
 
            BEN FRANKLIN,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LUMBERMAN'S MUTUAL CASUALTY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Robert C. Friederich against his former employer, 
 
            Ben Franklin, and its insurance carrier based upon alleged 
 
            injuries of October 24 and October 25, 1990.  The primary 
 
            issues to be determined are whether Friederich's angina and 
 
            possible heart attack constitute an injury which arose out 
 
            of and in the course of employment.  Additional issues 
 
            include proximate cause, extent of healing period and extent 
 
            of permanent disability.  Claimant seeks to recover for the 
 
            expenses of an independent medical examination under the 
 
            provisions of section 85.39.  Claimant also seeks to recover 
 
            expenses of medical care under the provisions of section 
 
            85.27.  The employer's liability for the injury is the only 
 
            issue associated with the medical expense claim.
 
            
 
                 The case was heard at Storm Lake, Iowa, on November 4, 
 
            1992.  The record consists of testimony from Robert C. 
 
            Friederich, Jean Wolf, Karen VanGuilder, Ellen McClain, 
 
            Michael Bahr, Keith Noah, and Bob Thomson.  The record also 
 
            contains claimant's exhibits A through N and defendants' 
 
            exhibits 1 through 17.  
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made:
 
            
 
                 Robert C. Friederich is a 56-year-old divorced man who 
 
            spent most of his life in department and variety stores such 
 
            as Woolworth's and Ben Franklin.  He started as a stock boy 
 
            and became a general manager.  From 1976 through 1984 he 
 
            owned and operated his own Ben Franklin store.  He was 
 
            forced to sell the store due to a divorce.  He sold 
 
            insurance for approximately two years and then obtained 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            employment as manager of the Ben Franklin store in Spirit 
 
            Lake, Iowa.  According to Robert, he worked 12 to 14 hours 
 
            per day at the start and enjoyed the work.  As time passed 
 
            he cut back on his hours.  When the Wal Mart store opened in 
 
            Spirit Lake, he felt that the Ben Franklin store would 
 
            eventually close.  It did close in January 1991.  Robert had 
 
            expected since approximately May 1990 that his store would 
 
            close.  
 
            
 
                 In October of 1990 he met with the owners of the store, 
 
            Robert Thomson and Keith Noah.  They had advised him that 
 
            they had in fact decided to close the store and that they 
 
            were going to employ a liquidator to handle the closeout 
 
            sales.  They expressed a concern about merchandise going out 
 
            the back door rather than the front.  Claimant interpreted 
 
            the statement as meaning that they questioned his honesty.  
 
            He became very upset.  After that lunch meeting he 
 
            experienced tightness and pains in his chest.  Other 
 
            employees noticed that he did not appear well and suggested 
 
            he go home.  Claimant did go home early that day.  He came 
 
            to work the following day.  During the course of the day he 
 
            helped move display tables from the mall area back into the 
 
            store itself.  They were estimated to weigh in the range of 
 
            60 or 70 pounds and were carried by two people.  While doing 
 
            so, claimant became short of breath and again had chest 
 
            pains.  
 
            
 
                 Robert stated at hearing that he continued to move the 
 
            tables for approximately 20 minutes after the pain started 
 
            because he felt compelled to keep going until the job was 
 
            done.  On the next day he came to work in the morning.  He 
 
            left early in order to visit his brother who lived at 
 
            LeMars, Iowa.  His brother also operated a variety store.  
 
            While returning home from LeMars he started getting chest 
 
            pains.  He was taken to Dickinson County Hospital and then 
 
            transferred to the hospital at Sioux Falls, South Dakota, 
 
            where he remained for eight days and underwent coronary 
 
            bypass surgery.  Claimant has not returned to work at Ben 
 
            Franklin since the heart surgery.
 
            
 
                 Claimant had heart problems in 1983.  At that time it 
 
            was diagnosed as angina and had come on while shoveling 
 
            snow.  During much of the time subsequent to 1983 he had 
 
            been on medication for coronary artery disease.  Claimant, 
 
            since undergoing the bypass surgery, appears to have 
 
            stabilized.  He complains of being tired and that he 
 
            fatigues easily.  His doctors have advised him to avoid 
 
            activities such as shoveling snow, pushing cars and other 
 
            strenuous exertion.
 
            
 
                 Claimant had a close relationship with a store employee 
 
            named Ellen McClain.  Ellen opened a store which competed to 
 
            some extent with the Ben Franklin store.  Robert Thomson 
 
            directed claimant to terminate her employment.  He 
 
            experienced stress because he did not desire to terminate 
 
            her employment. 
 
            
 
                 Claimant considered the stress during the meeting on 
 
            October 24, 1990, to exceed that of his nonemployment life.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            He described his nonemployment life as very easy and simple.  
 
            He hired others to perform his yard work and snow removal.  
 
            Claimant also stated that the physical exertion associated 
 
            with moving the tables was more than what he would engage in 
 
            outside of his employment.  He stated that he had no stress 
 
            in October 1990 other than that associated with his 
 
            employment.  Claimant also stated that the stresses of the 
 
            employment in October 1990 were greater than the normal 
 
            stress which he encountered as a store manager.  
 
            
 
                 At the present time claimant is a one-third partner 
 
            with Robert Thomson and Keith Noah in four different Subway 
 
            sandwich stores.  He is also a partner with Ellen McClain in 
 
            two stores which are open only during the summer in the 
 
            vacation area near Spirit Lake.  In his last full year at 
 
            Ben Franklin he earned $22,000.  In 1991 he earned $59,000 
 
            in profits from the Subway stores.  Since the 1990 heart 
 
            attack claimant has cut back greatly in his golfing and 
 
            fishing activities.  He has cut back in recreational 
 
            dancing.
 
            
 
                 There is a great deal of medical evidence from medical 
 
            sources in the record of this case.  Upon reviewing all the 
 
            evidence it is found that Robert clearly did have 
 
            preexisting coronary artery disease.  It is further found 
 
            that Robert had stress associated with his employment in 
 
            October 1990 and that the stress was probably a 
 
            precipitating factor in causing him to have the mild heart 
 
            attack which he had on October 1990 and which lead to the 
 
            coronary bypass surgery.  
 
            
 
                 It is found that the physical exertion of moving the 
 
            tables from the mall to the store was not an exertion of 
 
            greater magnitude than normal nonemployment life.  It was an 
 
            exertion of greater magnitude than this claimant's normal 
 
            nonemployment life but it was not an exertion of greater 
 
            magnitude than the normal nonemployment life of a normal 
 
            individual.  The record fails to show any physical exertion 
 
            associated with this claimant's employment which was greater 
 
            than the physical exertion commonly found in the normal 
 
            nonemployment life of a normal individual.  Such normal 
 
            nonemployment life of a normal individual includes 
 
            activities such as shoveling snow, mowing lawns, hiking, 
 
            swimming, golfing, playing tennis, going up and down stairs 
 
            while carrying articles, and similar activities.
 
            
 
                 In this case it was well known and expected that the 
 
            Ben Franklin store would be forced out of business by the 
 
            opening of a Wal Mart store.  Claimant had known that for 
 
            months prior to October 1990.  It was not surprising.  It 
 
            was not due to any shortcomings on claimant's part and he 
 
            was not blamed by Thomson and Noah for the store's 
 
            unprofitability.  Claimant might have taken the statements 
 
            concerning hiring a liquidator to close the store as some 
 
            indication of lack of confidence in his integrity, but it 
 
            was not necessarily any such indication.  The directive for 
 
            him to terminate the employment of Ellen McClain likely 
 
            caused him some stress, yet it would not have been expected 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to be an extremely stressful situation.  Normal 
 
            nonemployment life often involves disputes, disagreements, 
 
            rudeness, insults, and other harsh treatment.  Normal 
 
            employment typically involves supervisor's who are often 
 
            less than kind and nurturing.  Normal nonemployment life and 
 
            normal employment involves being required to do acts which 
 
            an individual might find objectionable or disagreeable.  In 
 
            summary, it is apparent that the discussion with Noah and 
 
            Thomson on October 24, 1990, was stressful, the prospect of 
 
            closing the store was stressful and being required to 
 
            terminate the employment of Ellen McClain was stressful.  
 
            The stress is not shown to be of greater magnitude than the 
 
            stresses of normal nonemployment life of a normal person.  
 
            
 
                                conclusions of law
 
            
 
                 Iowa claimants with preexisting circulatory or heart 
 
            conditions are permitted, upon proper medical proof, to 
 
            recover workers' compensation benefits where the employment 
 
            contributes something substantial to increase the risk of 
 
            injury or death.  The employment contribution must take the 
 
            form of an exertion greater than nonemployment life.  Sondag 
 
            v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
            comparison is not with the employee's usual exertion in 
 
            employment or nonemployment life, but with exertions of 
 
            normal nonemployment life of this or any other person.  
 
            Sondag, 220 N.W.2d at 905.  These exertions may be physical 
 
            or emotional.  Swalwell v. William Knudson & Son, Inc., II 
 
            Iowa Industrial Commissioner Report 385 (App. 1982).  The 
 
            Sondag rule is favored by Professor Larson in his treatise 
 
            on workers' compensation.  See 1A Larson Workmen's 
 
            Compensation Law, section 38.83 at 7-172.  According to 
 
            Professor Larson, the causation test is a two-part analysis.  
 
            First, medical causation must be established.  That is, 
 
            medical experts must causally relate the alleged stress, 
 
            whether emotional or physical, to the heart injury.  Second, 
 
            legal causation must be established.  That is, the 
 
            factfinder must determine whether the medically-related 
 
            stress is more than the stress of everyday nonemployment 
 
            life.
 
            
 
                 Robert C. Friederich has proven by a preponderance of 
 
            the evidence that he had a mild heart attack, that he was 
 
            under stress in his employment and that the stress was a 
 
            precipitating factor in aggravating his preexisting coronary 
 
            condition to cause the heart attack.  He has not, however, 
 
            proven by a preponderance of the evidence that his 
 
            employment related stresses were greater than the stresses 
 
            of normal nonemployment life of a normal person.  Claimant 
 
            has therefore failed to prove that his heart attack arose 
 
            out of and in the course of employment. 
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.  The costs of this action are assessed 
 
            against the claimant.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert E. McKinney
 
            Attorney at Law
 
            480 6th St
 
            PO Box 209
 
            Waukee, Iowa  50263-0209
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      1108.10 2202 2206
 
                      Filed February 26, 1993
 
                      Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT C FRIEDERICH,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :File Nos. 967391 & 988003
 
            BEN FRANKLIN,  :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LUMBERMAN'S MUTUAL CASUALTY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1108.10 2202 2206
 
            Claimant proved that he sustained a heart attack as a result 
 
            of stress associated with his employment.  He had 
 
            preexisting coronary artery disease.  The evidence failed to 
 
            show that the employment stress was greater than the 
 
            stresses of normal nonemployment life.  The claim was 
 
            denied.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JACK WOLDRUFF,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 967409
 
            GTE,                          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE KEMPER GROUP,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Jack 
 
            Woldruff against his employer, GTE, and its insurance 
 
            carrier, based upon an alleged injury of October 31, 1990.  
 
            The controlling issue in the case is whether Jack Woldruff's 
 
            myocardial infarction that occurred on October 31, 1990, 
 
            constitutes an injury which arose out of and in the course 
 
            of his employment.
 
            
 
                 The case was heard at Council Bluffs, Iowa, on March 
 
            12, 1993.  The record consists of testimony from Jack 
 
            Woldruff, joint exhibits 1 through 26; and claimant's 
 
            exhibit A.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The appearance and demeanor of Jack Woldruff was 
 
            observed as he testified at hearing.  His testimony has been 
 
            considered in light of the other evidence in the case.  He 
 
            is found to be an impeccably honest witness.
 
            
 
                 Jack is a 53-year-old married man who has been employed 
 
            by GTE for 26 years.  He works as a telephone installer and 
 
            lineman.  He normally works alone using a truck provided by 
 
            the employer.  The truck is equipped with the materials, 
 
            supplies and equipment that he commonly uses for installing 
 
            telephone and telephone service lines.  The office from 
 
            which he works is located at Clarinda, Iowa.  On October 31, 
 
            1990, he was assigned a job in the nearby town of College 
 
            Springs, Iowa.
 
            
 
                 Jack drove to the site and began preparing to perform 
 
            the project.  He removed an extension ladder from the truck 
 
            and set it on the ground.  When he attempted to pick it up 
 
            he experienced severe, sharp pain in the middle of his 
 
            chest.  He did not know what was wrong and suspected that 
 
            the problem was indigestion.  He waited a few minutes and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was unable to continue with the project.
 
            
 
                 Jack continued to feel abnormal throughout the rest of 
 
            his workday.  He went to a different nearby town for lunch 
 
            at a restaurant.  He returned to the office at Clarinda 
 
            earlier than his normal stopping time.  He requested to 
 
            leave work early but was not allowed to leave because 
 
            another employee was absent.  Jack had also desired to leave 
 
            early in order to travel to Osceola, Iowa, for a high school 
 
            play-off football game.  Jack is an avid supporter of the 
 
            Clarinda High School football program.
 
            
 
                 Jack eventually completed his workday and then went 
 
            with his wife to Osceola for the high school football game.  
 
            The Clarinda team was successful.  While traveling to the 
 
            game, Jack consumed a sandwich.  He consumed another 
 
            sandwich at the game.  The Clarinda team was successful and 
 
            won by a large margin.
 
            
 
                 During the trip home Jack began to feel worse.  When 
 
            they arrived at Clarinda he requested to be taken to the 
 
            hospital.  Jack was hospitalized and diagnosed as having 
 
            suffered a myocardial infarction.
 
            
 
                 Jack's primary treating cardiologist was Tom V. Pagano, 
 
            M.D.  Jack underwent an angioplasty procedure.  He had 
 
            coronary artery disease.  After approximately eight weeks, 
 
            he was allowed to return to work.  He has continued to 
 
            perform his customary duties without serious problems.
 
            
 
                 When deposed, Jack attributed his heart attack to 
 
            stress at work.  He stated that the company was laying off 
 
            people and that he and his boss didn't see eye to eye on 
 
            many things (Joint Exhibit 26, page 53).  From the record 
 
            made at hearing, there was no evidence showing Jack to have 
 
            had any great amount of psychological stress associated with 
 
            his work.  There was no suggestion that he had received 
 
            unfavorable performance appraisals, reprimands, threats, 
 
            notice of layoff or anything which might be considered to be 
 
            significantly stressful.  It would be expected that Jack was 
 
            assigned work and was required to perform that work but 
 
            there is no indication that the workload was in any manner 
 
            oppressive or unreasonable.  There is no indication that 
 
            Jack's work performance was considered to be unreasonable in 
 
            any manner.  There is nothing in the record to indicate that 
 
            Jack was or was as anything other than a good, valued 
 
            employee.
 
            
 
                 Jack Woldruff, at the time of the heart attack, 
 
            exhibited a number of characteristics commonly considered to 
 
            be risk factors for producing a heart attack.  He was 
 
            overweight and consumed a great deal of fatty food.  He had 
 
            hypertension and diabetes.  After the heart attack occurred, 
 
            he was found to have blockage of one of his coronary 
 
            arteries and deposits in others.  As indicated by Paul From, 
 
            M.D., in his deposition, claimant clearly had preexisting 
 
            coronary artery disease.  He would not have had the 
 
            myocardial infarction if he had not been afflicted with 
 
            coronary artery disease (Jt. Ex. 25, pp. 15-18).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On the day the heart attack occurred, Jack was engaging 
 
            in his normal employment activities.  The record does not 
 
            show any emergency situation.  There is no indication that 
 
            he was in any manner being rushed or compelled to perform at 
 
            anything other than his own pace of work.  There is nothing 
 
            to indicate that the physical exertional requirements of his 
 
            work activities were anything abnormal in comparison to his 
 
            usual work.  From the record made, it appears as though the 
 
            actions included things such as walking, bending, carrying 
 
            moderate weights, climbing ladders and working with hand 
 
            tools.  Nothing in the record shows any of these activities 
 
            to have been particularly strenuous or to have required 
 
            anything other than mild to moderate physical exertion.  
 
            Jack was not rousted out of bed in the middle of the night.  
 
            He was not working in any type of inclement weather.
 
            
 
                 There is a controversy in the record regarding when the 
 
            myocardial infarction actually occurred.  Paul From, M.D., a 
 
            specialist in internal medicine, was employed by defendants 
 
            for purposes of expressing an opinion in this litigation.  
 
            He expressed the opinion that the infarction probably 
 
            occurred between 7:00 and 8:00 p.m. on the evening of 
 
            October 31.  He also felt that there was no causal 
 
            connection between Jack's work and the onset of the 
 
            myocardial infarction (Jt. Exs. 15 and 16).  When deposed, 
 
            Dr. From stated that work exertion or stress can be a factor 
 
            in producing a myocardial infarction but that it must be an 
 
            unusual exertion (Jt. Ex. 25, pp. 34-35).  Dr. From also 
 
            stated that in view of Jack's preexisting coronary artery 
 
            disease, the heart attack could have occurred at any time 
 
            (Jt. Ex. 25, pp. 22-23).
 
            
 
                 Dr. Pagano felt that the infarction had occurred during 
 
            the mid-morning of October 31, 1990.  He also reported that 
 
            additional damage could have occurred during the evening 
 
            football game (Jt. Ex. 13).  Dr. Pagano also reported that 
 
            claimant's exertion during work precipitated the myocardial 
 
            infarction (Jt. Exs 12 and 14).  Dr. Pagano felt that 
 
            continuing to work following the onset of symptoms probably 
 
            increased the degree of damage which occurred (Jt. Ex. 14).  
 
            That same exhibit seems to indicate that the exertions of 
 
            his work are greater than his nonwork daily activities.
 
            
 
                 Claimant was also evaluated by Nosrat A. Massih, M.D., 
 
            another cardiologist.  Dr. Massih expressed the opinion that 
 
            the myocardial infarction was caused and aggravated by 
 
            mental and physical stress associated with Jack's employment 
 
            (Jt. Exs. 18, 19 and 20).
 
            
 
                 There is nothing in the records of Dr. Massih which 
 
            gives any indication as to what parts of Jack's work were 
 
            considered as being physically or emotionally stressful.  
 
            There is nothing in the records of Dr. Pagano which 
 
            indicates that he was aware of claimant's actual physical 
 
            exertions at his employment on October 31, 1990, or of 
 
            claimant's typical nonemployment activities and exertions.
 
            
 
                 From the record made at hearing, it appears as though 
 
            Jack's employment was not particularly emotionally 
 
            stressful.  All employment and all interaction with other 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            individuals, be they co-employees, bosses, neighbors or 
 
            relatives, commonly involves some level of stress.  Normal 
 
            employment and normal nonemployment life both involve some 
 
            level of physical exertion.  It is quite common for any type 
 
            of work to involve some degree of walking, carrying, bending 
 
            and similar activities.  There is nothing remarkable about 
 
            the physical activities performed by Jack Woldruff on 
 
            October 31, 1990, in association with his employment.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  While a claimant is not 
 
            entitled to compensation for the results of a preexisting 
 
            injury or disease, its mere existence at the time of a 
 
            subsequent injury is not a defense.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            materially aggravated, accelerated, worsened or lighted up 
 
            so that it results in disability, claimant is entitled to 
 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 Iowa claimants with preexisting circulatory or heart 
 
            conditions are permitted, upon proper medical proof, to 
 
            recover workers' compensation benefits where the employment 
 
            contributes something substantial to increase the risk of 
 
            injury or death.  The employment contribution must take the 
 
            form of an exertion greater than nonemployment life.  
 
            Sondag, 220 N.W.2d 903.  The comparison, however, is not 
 
            with the employee's usual exertion in employment, but with 
 
            exertions of normal nonemployment life of this or any other 
 
            person.  Sondag, 220 N.W.2d at 905.  These exertions may be 
 
            physical or emotional.  Swalwell v. William Knudson & Son, 
 
            Inc., II Iowa Industrial Commissioner Report 385 (App. 
 
            1982).  The Sondag rule is favored by Professor Larson in 
 
            his treatise on workers' compensation.  See 1A Larson 
 
            Workmen's Compensation Law, section 38.83 at 7-172.  
 
            According to Professor Larson, the causation test is a 
 
            two-part analysis.  First, medical causation must be 
 
            established.  That is, medical experts must causally relate 
 
            the alleged stress, whether emotional or physical, to the 
 
            heart injury.  Second, legal causation must be established.  
 
            That is, the fact finder must determine whether the 
 
            medically-related stress is more than the stress of everyday 
 
            nonemployment life.
 
            
 
                 The legal standards involve tests to be used based upon 
 
            whether the individual has a previously healthy heart or a 
 
            previously diseased heart.  As a practical matter, 
 
            individuals with healthy hearts do not have heart attacks.  
 
            While there are likely some rare occasions where extreme 
 
            stress or exertion produces a heart attack in an otherwise 
 
            healthy individual, the overwhelming majority of heart 
 
            attack cases involve individuals with preexisting coronary 
 
            artery disease, many of whom had no knowledge of the 
 
            diseased condition prior to the time that the heart attack 
 
            occurred.
 
            
 
                 In this case, it is readily apparent that Jack Woldruff 
 
            had preexisting coronary artery disease.  It had not been 
 
            diagnosed or known to him or to any of his physicians prior 
 
            to the time that the heart attack occurred but it 
 
            nevertheless existed.  It has been suggested in some agency 
 
            decisions that if the preexisting coronary disease has not 
 
            been previously diagnosed, the legal standard to be applied 
 
            when analyzing compensability is that of a person with a 
 
            previously healthy coronary artery system.  That basis for 
 
            analysis is inconsistent with the Iowa Supreme Court 
 
            precedents.  The time the coronary artery disease is 
 
            diagnosed is immaterial.  The ultimate fact of whether or 
 
            not there was preexisting coronary artery disease is what 
 
            controls the analysis of compensability.
 
            
 
                 In the state of Iowa, if the work exceeds the normal 
 
            exertions of the employment compensability can be found.  In 
 
            this case, however, there is nothing in the record which 
 
            shows the exertions of October 31, 1990 to have been 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            unusually strenuous.  Clearly, the physical exertions that 
 
            Jack Woldruff experienced at his employment on that day were 
 
            quite normal for his employment.  Carrying the ladder is 
 
            something that he performed on a daily basis.  The ladder 
 
            was estimated to weigh only 50 or 60 pounds.
 
            
 
                 It is clear from the record of this case that the 
 
            exertions Jack Woldruff engaged in at his employment on 
 
            October 31, 1990 were the usual exertions of that 
 
            employment.  Nothing unusual has been suggested or proven.
 
            
 
                 Compensation can be awarded if the work ordinarily 
 
            requires heavy exertions which take the form of exertion 
 
            greater than that  of normal nonemployment life.  The 
 
            standard for comparison of normal nonemployment life is not 
 
            particularly definite.  There are individuals who, in their 
 
            nonemployment lives, run in marathons, rebuild their homes, 
 
            mow lawns, shovel snow, play tennis and engage in a number 
 
            of forms of quite substantial physical exertion.  On the 
 
            other hand, there are those who live in apartments or 
 
            condominiums and do nothing more strenuous than walk a few 
 
            steps on what is essentially level ground between the door 
 
            of their dwelling and their automobile, never carrying more 
 
            than a few pounds of weight at any time.  With regard to 
 
            emotional stress, there are some individuals who live a very 
 
            complacent life off the job.  They have no conflicts with 
 
            spouses, neighbors or relatives.  They are financially 
 
            secure and even have a good relationship with their teenage 
 
            children and in-laws.  Other individuals live in a state of 
 
            constant turmoil with ongoing altercations with neighbors, 
 
            harassment from bill collectors and domestic discord. 
 
            
 
                 The standard for comparison is not the individual's 
 
            nonemployment life.  It is the normal nonemployment life of 
 
            a normal person in our society.  If a particular claimant is 
 
            one of the individuals who falls within the extremes of 
 
            exertion or lack thereof, such does not change the legal 
 
            standard for comparison.  It may, however, have some impact 
 
            upon the factual question of whether or not the stress or 
 
            exertion did in fact precipitate the heart attack, but it 
 
            does not change the legal standard for comparison.
 
            
 
                 The normal nonemployment life which constitutes the 
 
            correct legal standard contains none of the previously 
 
            mentioned extremes.  Nonemployment life includes activities 
 
            such as mowing a lawn, carrying groceries, shoveling snow, 
 
            playing golf, cheering at sporting events, performing minor 
 
            home and vehicle repairs, cleaning house, doing laundry, 
 
            lifting small children, swimming, bicycling, walking and 
 
            other similar activities which provide a mild to moderate 
 
            level of physical exertion.  Normal nonemployment life 
 
            likewise includes some level of emotional stress.  It is 
 
            necessary to plan one's time, manage one's finances and deal 
 
            with other individuals who have ideas and beliefs which are 
 
            contrary to one's own.  Mere tolerance of others can at 
 
            times be quite stressful, regardless of the circumstances.  
 
            Neighbors have barking dogs and noisy stereos.  Vehicles 
 
            with noisy exhausts travel on the street in front of one's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            home.  It is necessary to decide which relatives will be 
 
            visited for certain holidays.  In short, normal 
 
            nonemployment life carries with it emotional stress.
 
            
 
                 One of the very important factors when defining the 
 
            level of stress or exertion of normal nonemployment life is 
 
            the fact that the individual has considerable control 
 
            regarding the amount of stress or exertion which they choose 
 
            to accept.  One can typically set his own pace when mowing 
 
            the lawn.  If it is extremely hot, he can rest whenever he 
 
            chooses.  In normal nonemployment life, one is able to 
 
            protect himself from the extremes of weather.  There are 
 
            typically no supervisors and no productivity standards to 
 
            meet.  In general, in normal nonemployment life, a person is 
 
            able to start and stop activities as they desire and to 
 
            perform them at their own pace.
 
            
 
                 The level of exertion of normal nonemployment life is 
 
            not a matter which falls exclusively into the realm of 
 
            expert testimony.  The types of things that people do in 
 
            their normal nonemployment life is a matter of common 
 
            knowledge and experience.  While some type of expert 
 
            testimony might be available to quantify the exertional 
 
            requirements of various activities by objective tests such 
 
            as measurement of calories expended or other objective 
 
            measurements of the amount of work or exertion actually 
 
            performed, it is quite proper to rely upon common knowledge 
 
            and experience to recognize what is within the realm of the 
 
            stresses and exertions of normal nonemployment life of a 
 
            normal individual.  It includes not only the nature of the 
 
            activity but also the rate or pace at which the activity is 
 
            performed.  For example, playing basketball can be quite 
 
            strenuous if it involves running up and down a court at full 
 
            speed. Briar Cliff College v. Campola, 360 N.W.2d 91 (Iowa 
 
            1984).  Playing basketball can also be not at all strenuous 
 
            if it involves merely shooting baskets.
 
            
 
                 In this case, it is not necessary to determine 
 
            precisely when the actual myocardial infarction occurred.  
 
            Clearly, the infarction or the events leading up to it were 
 
            underway at the time Jack was handling the ladder on the 
 
            morning of October 31, 1990.  The actual infarction might 
 
            not have occurred at that time but if it did not, the 
 
            sequence of events which would ultimately lead to it had 
 
            been placed into motion.  There is some question with regard 
 
            to whether or not the activities in which Jack had engaged 
 
            involved sufficient exertion to precipitate a myocardial 
 
            infarction.  Coronary artery disease is known to be a 
 
            progressive condition.  It develops to the point that it can 
 
            be sufficiently severe that a myocardial infarction can 
 
            occur at any time without any identifiable precipitating 
 
            cause or factor.  The closer one approaches in the 
 
            development of the disease to that point in time the less is 
 
            the amount of exertion that is required to precipitate a 
 
            myocardial infarction.  It is apparent that Jack Woldruff's 
 
            coronary artery disease had progressed to the point that it 
 
            required little, if any, physical exertion to precipitate 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the myocardial infarction that occurred.  As with the time 
 
            that the infarction actually occurred, it is likewise 
 
            unnecessary to determine whether or not the physical 
 
            exertion of work on October 31, 1990 actually precipitated 
 
            the infarction.  That is so because the level of exertion 
 
            has not been shown to be greater than that of normal 
 
            nonemployment life.
 
            
 
                 A third possible means of compensability arises when an 
 
            individual has a heart attack that is not caused by work but 
 
            feels compelled to continue working rather than seek medical 
 
            care and sustains further damage.  Varied Enterprises, Inc. 
 
            v. Sumner, 353 N.W.2d 407 (Iowa 1984).  In this case, there 
 
            is no clear indication that there is anything other than a 
 
            possibility that further damage might have occurred from the 
 
            claimant continuing to work after the onset of symptoms.  
 
            Further, there is nothing to indicate that claimant felt 
 
            compelled to continue working and therefore delayed seeking 
 
            medical care out of some sense of work ethic or duty to his 
 
            employer.  He was in a situation where he could have readily 
 
            driven to seek medical care if he had chosen to do so.  
 
            Every indication is that he thought he had indigestion and, 
 
            therefore, did not consider it to be a reason for leaving 
 
            work or seeking medical care. 
 
            
 
                 When viewing the record as a whole which was made in 
 
            this case, it is determined that the claimant has failed to 
 
            prove by a preponderance of the evidence that the physical 
 
            or emotional stress associated with his employment on or 
 
            about October 31, 1990 provided a level of stress or 
 
            exertion that was greater than that of normal nonemployment 
 
            life.  There is nothing in the record to suggest that the 
 
            stress or exertion was in any way greater than that which 
 
            was typical for Jack's work.It is possible that he kept 
 
            working after its onset and that doing so caused damage.  
 
            Neither of those facts are proven by a preponderance of the 
 
            evidence, however.  It is therefore concluded that Jack 
 
            Woldruff has failed to prove by a preponderance of the 
 
            evidence that his heart attack was an injury which arose out 
 
            of and in the course of his employment or that it is 
 
            otherwise compensable.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                    ORDER
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.  The costs of this action are assessed 
 
            against claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Sheldon M Gallner
 
            Attorney at Law
 
            803 Third Ave
 
            Council Bluffs IA 51502
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            
 
 
            
 
 
 
 
 
             
 
 
 
                                                 1108.10; 1402.30;
 
                                                 2202; 2206
 
                                                 Filed May 26, 1993
 
                                                 Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JACK WOLDRUFF, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 967409
 
            GTE       
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            THE KEMPER GROUP,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1108.10; 1402.30; 2202; 2206
 
            
 
            Claimant failed to introduce evidence showing that the level 
 
            of stress for exertion associated with his employment had 
 
            precipitated his heart attack.  There was really no serious 
 
            suggestion of psychological stress.  His physical activities 
 
            consisted of mild to moderate exertion.  An analysis was 
 
            made of what is meant by "normal nonemployment life" when 
 
            comparing exertions for purposes of determining 
 
            compensability.  It was held to mean the normal 
 
            nonemployment life of a normal individual which includes 
 
            stress and physical exertion.  For purposes of determining 
 
            whether the individual has a previously diseased heart the 
 
            fact of whether or not it was previously diagnosed is 
 
            immaterial.
 
            
 
 
            
 
    
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            HELEN PATTERSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 997270
 
                                          :                   967695
 
            QUALITY INN,                  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY CO.,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Helen Patterson, against her employer, Quality 
 
            Inn and its insurance carrier, United States Fidelity and 
 
            Guaranty Company, defendants.  The case was heard on May 6, 
 
            1993 at the Webster County courthouse in Fort Dodge, Iowa.  
 
            The record consists of the testimony of claimant.  The 
 
            record also consists of claimant's exhibits 1-3, and joint 
 
            exhibits A-E and F29-86, 98, 106, 107, 127-145.  The record 
 
            also consists of the testimony of claimant.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the work injury and any 
 
            permanent disability; and 2) whether claimant is entitled to 
 
            any permanent partial disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 45 years old.  She is single.  Claimant 
 
            graduated from high school in 1966.  She attended college 
 
            for    3 1/2 years at both Iowa Central Community College 
 
            and Mankato State College.  Claimant holds an Iowa license 
 
            to practice as a Licensed Practical Nurse.  Her certificate 
 
            is currently inactive.  She has not been actively employed 
 
            as a nurse for nine years.  Claimant last worked as a LPN in 
 
            1984.  She left the profession because of stress on the job.  
 
            She testified in her deposition that she had no desire to 
 
            return to nursing.  
 
            
 
                 Since leaving the nursing profession, claimant has been 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            underemployed in the restaurant, bar and hotel industry.  
 
            She has worked as a waitress, bartender and hostess.  Her 
 
            wages have been in the area of the prevailing minimum wage.  
 
            Claimant has also delivered morning newspapers for the past 
 
            several years.  
 
            
 
                 Claimant was hired in December of 1985 to work for the 
 
            then Holiday Haus in Fort Dodge, Iowa.  Later the Holiday 
 
            Haus was purchased by another owner, and it became the 
 
            Quality Inn.  Originally, claimant was hired as a waitress 
 
            and a bartender.  In June of 1986, claimant was promoted to 
 
            lounge manager.  She worked as the lounge manager for 3 1/2 
 
            to 4 years.  Her duties included opening and closing the 
 
            lounge, making deposits at the bank, ordering stock, taking 
 
            inventory, hiring part-time employees, tending bar for 
 
            parties, making pizzas and engaging in promotional work.  
 
            
 
                 There was a considerable amount of lifting involved 
 
            with the position.  Claimant carried ice buckets, lifted 
 
            liquor bottles, and she filled coolers with beer, although 
 
            she used a push cart to assist her.  Since she was 
 
            responsible for cleaning, claimant mopped the floor each 
 
            night.  She used a rag mop to assist her in her cleaning 
 
            responsibilities.  Claimant also washed dishes, including 
 
            pizza pans and popcorn pans at the end of each evening.  
 
            
 
                 On November 30, 1989, claimant was lifting cases of 
 
            beer from the storeroom shelves and placing the cases onto a 
 
            push cart.  Overhead lifting was involved, and as claimant 
 
            was pulling a case of 24 pint bottles, she experienced "a 
 
            hot burning pain" in her shoulder.  She also experienced 
 
            pain in her shoulder, arm and neck.  Claimant completed her 
 
            shift.  She also continued to work on succeeding days.  She 
 
            did not seek medical attention at that time.
 
            
 
                 On December 7, 1989, a similar situation occurred.  It 
 
            was during the evening hours and claimant was again pulling 
 
            cases of beer.  She was removing cases of pint bottles from 
 
            shelves in the storeroom.  She experienced the same pains in 
 
            her right shoulder.  Claimant reported the injury to her 
 
            supervisor, Loretta Hoeffer.
 
            
 
                 Within the next week, defendant-employer authorized 
 
            claimant to seek medical attention from her family 
 
            physician, Charles Dagle, M.D.  He diagnosed claimant as 
 
            having a right sore shoulder.  (Joint Exhibit F, page 128)  
 
            He ordered a right shoulder arthrogram.  The arthrogram 
 
            showed a normal right shoulder.  (Jt. Ex. F, p. 29)  Dr. 
 
            Dagle treated claimant conservatively for a period of time.  
 
            He then referred claimant to an orthopedic specialist when 
 
            claimant's condition did not improve.
 
            
 
                 Samir R. Wahby, M.D., examined claimant on March 23, 
 
            1990.  He wrote the following in his report of March 28, 
 
            1990:
 
            
 
                 Exam today revealed pain and tenderness over the 
 
                 anterior aspect of her right shoulder with 
 
                 increased pain and tenderness on rotation.  Pt was 
 
                 told that she has subacromial bursitis and was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 given Cortisone injection and she will be back for 
 
                 follow up in three wks and if no improvement she 
 
                 will be scheduled for arthroscopy of her right 
 
                 shoulder.
 
            
 
            (Jt. Ex. F, p. 86)
 
            
 
                 In May of 1990, defendant-employer terminated 
 
            claimant's employment.  The termination was unrelated to 
 
            claimant's work injuries.  She was terminated because of 
 
            disagreements between claimant and her immediate supervisor.  
 
            In a matter of days she was again employed as a waitress and 
 
            a bartender in another hotel situation.  Claimant has been 
 
            continuously employed in the restaurant and bar business 
 
            since her termination in May.
 
            
 
                 Claimant sought a second opinion from another 
 
            orthopedic specialist.  On June 26, 1990, claimant saw 
 
            Robert J. Weatherwax, M.D.  (Jt. Ex. F, p. 133)  Basically, 
 
            Dr. Weatherwax concurred with the opinion of Dr. Wahby.
 
            
 
                 Claimant testified that subsequent to receiving her 
 
            cortisone injection, her pain subsided for a period of time.  
 
            However, the pain returned.  Claimant continued follow up 
 
            care with Dr. Wahby.  Later Dr. Wahby performed a right 
 
            shoulder arthroscopy and acromioplasty.  The surgery 
 
            occurred on November 6, 1990.  In his post-surgical report, 
 
            Dr. Wahby opined that:
 
            
 
                 FINAL DIAGNOSIS: 
 
            
 
                 Subacromium bursitis, status post arthroscopy 
 
                 right shoulder and arthroscopy acromioplasty.
 
            
 
                 Complications, infections:  None.
 
            
 
                 The patient was admitted to the hospital for 
 
                 subacromial bursitis and pain and discomfort of 
 
                 her shoulder.  The patient was taken to the 
 
                 operating room and had shoulder arthroscopy and 
 
                 acromioplasty.  The patient did very well and 
 
                 started ambulation the same day.  She will be sent 
 
                 home today with Tylenol #3 for pain and she will 
 
                 be seen for follow up in my office in one week.
 
            
 
            (Jt. Ex. F, p. 63)
 
            
 
                 Claimant continued with follow up care, including home 
 
            exercises to improve her range of motion.  Claimant 
 
            progressed positively for a period of time.  Dr. Wahby 
 
            released claimant to return to work as of December 10, 1990.  
 
            (Jt. Ex. F, p. 77)  Then she experienced pain in the right 
 
            shoulder.  She returned to Dr. Weatherwax for another 
 
            opinion.
 
            
 
                 In his note of June 18, 1991, Dr. Weatherwax wrote:
 
            
 
                 OBJECTIVE:  On examination, she has some mild 
 
                 restriction of internal and external rotation with 
 
                 very early frozen shoulder syndrome.  She has full 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 abduction, forward flexion and extension.  She has 
 
                 pain on abduction and still a positive impingement 
 
                 sign.  The collar bone is not tender at the AC 
 
                 joint.
 
            
 
                 Arthrograms and xrays previously have been 
 
                 negative.
 
            
 
                 RECOMMENDATIONS:  It would be my feeling that a 
 
                 trial of at least one steroid injection and 
 
                 exercise for a month would be appropriate not only 
 
                 to see if we can eliminate the pain, but improve 
 
                 some of the early frozen shoulder symptoms.  If 
 
                 this did not resolve her symptoms, I would then 
 
                 offer open decompression as I think that this is a 
 
                 better technique unless you are one of the very 
 
                 few that arthroscopically has had a great deal of 
 
                 experience with bursal procedures.  Provided her 
 
                 exercises to work on the motion.  Would suggest 
 
                 steroid injection into the bursa at least once to 
 
                 see if it would resolve the symptoms and get her 
 
                 on her way to recovery.
 
            
 
            (Jt. Ex. F, p. 132)
 
            
 
                 One month later claimant returned to Dr. Wahby for 
 
            another examination.  She was again experiencing pain.  Dr. 
 
            Wahby gave her a cortisone and Depo Medrol and Xylocaine 
 
            injection.  Claimant returned to Dr. Wahby one month later.  
 
            Upon examination of claimant, Dr. Wahby noted there was full 
 
            range of motion of the right shoulder.  
 
            
 
                 In April of 1992, claimant again saw Dr. Wahby.  He 
 
            injected her with a second cortisone shot.  Two months later 
 
            another injection was administered to her.  
 
            
 
                 In December of 1992, Dr. Wahby authored the following 
 
            report:
 
            
 
                    In answering your letter dated December 16, 
 
                 1992, as you know I have been taking care of Ms. 
 
                 Patterson for the last 2 1/2 years.  The patient 
 
                 has subacromial bursitis of her right shoulder for 
 
                 which she underwent arthroscopy of the right 
 
                 shoulder and debridement and the patient improved 
 
                 some following the surgery however later on she 
 
                 started having more pain and discomfort of her 
 
                 right shoulder.  The patient redeveloped the 
 
                 subacromial bursitis that she had.
 
            
 
                    The patient came yesterday to my office 
 
                 complaining of increased pain and discomfort of 
 
                 her shoulder as well as tingling and numbness of 
 
                 both hands and fingers.  Examination revealed that 
 
                 she has pain and tenderness over the anterior 
 
                 aspect of the right shoulder although she has 
 
                 excellent motion of her shoulder she still had 
 
                 pain and discomfort during range of motion.  The 
 
                 patient seems to have an intact rotator cuff.  
 
                 Examination of both hands revealed that the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 patient has positive Tinel and Phalen signs 
 
                 however she does not have any muscle wasting or 
 
                 atrophy.
 
            
 
                    The patient has subacromial bursitis of her 
 
                 right shoulder and she will require an 
 
                 acromioplasty and decompression of the right 
 
                 shoulder and she will be scheduled for EMG's of 
 
                 both hands and fingers and if they show that she 
 
                 has carpal tunnel syndromes then she will be a 
 
                 candidate for bilateral carpal tunnel syndrome 
 
                 releases.  The patient was given a Depo Medrol and 
 
                 Xylocaine injection in the right shoulder and she 
 
                 will be seen back for follow up after obtaining 
 
                 the EMG's.
 
            
 
            (Claimant's Exhibit 1)
 
            
 
                 In January of 1993, defendants sent claimant to Dr. 
 
            Wirtz, M.D. (first name unknown), for purposes of an 
 
            examination and an evaluation.  In his report of January 15, 
 
            1993, Dr. Wirtz opined:
 
            
 
                 Exam shows she is tender in the right shoulder on 
 
                 the medial aspect of the bicepital tendon which is 
 
                 intact.  The biceps is 5/5 in strength.  The 
 
                 puncture wounds are small in nature and they are 
 
                 three in nature and are well healed.  The forward 
 
                 flexion is 180/180 degrees, external rotation 
 
                 90/90 degrees and internal rotation 45/60 degrees.  
 
                 Extension 45/45 degrees and abduction 135/135 
 
                 degrees.
 
            
 
                     ...
 
            
 
                 Diagnosis: 
 
            
 
                 1.  Status postop arthroscopic decompression, 
 
                 right shoulder.
 
            
 
                 Regarding 12/17/92 correspondence and review, the 
 
                 following would be conclusive.
 
            
 
                 The right shoulder demonstrates loss of motion 
 
                 with internal rotation which would relate to a 5% 
 
                 impairment of the right upper extremity.
 
            
 
                 The symptoms in the shoulder area not requiring 
 
                 strong medications or physical therapy would be 
 
                 minimal in restriction of function.  
 
                 Over-shoulder-height activity would be the only 
 
                 restriction with the right upper extremity.  
 
            
 
            (Jt. Ex. F, pp. 134 & 136)
 
            
 
                 Claimant's attorney then sent claimant to another 
 
            physician for the purpose of examination and evaluation.  
 
            Claimant saw David R. Archer, M.D., a family practice 
 
            physician, on July 6, 1993.  Dr. Archer authored a report, 
 
            dated, July 12, 1993.  In his report, Dr. Archer opined:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 On physical examination, her general physical exam 
 
                 is benign.  Neurologic exam, likewise, is within 
 
                 normal limits with normal motor and sensory 
 
                 testing at all levels.  On orthopedic examination, 
 
                 her shoulders are near level, though the left is 
 
                 slightly high.  She has a normal gait and station 
 
                 otherwise.  She carries her head somewhat forward.  
 
                 Range of motion of the neck and thoracic spine is 
 
                 within normal limits, as is the lumbar spine.  
 
                 Examination of her shoulders reveals normal range 
 
                 of motion in all plains, including internal and 
 
                 external rotation at both 0 and 90o of abduction.  
 
                 At this point, she seems to have improved in 
 
                 internal rotation over Dr. Wirtz' exam in January 
 
                 of 1993.  She does, however, have mild crepitation 
 
                 on exam in a post-op shoulder, and continues to 
 
                 have pain, especially with overhead lifting.  I, 
 
                 therefore, concur with Dr. Wirtz.
 
            
 
                 Impression:  we have a 45 year-old, white, female 
 
                 bar-maid with an old chronic bursitis, status-post 
 
                 arthroplasty, who has made about all the recovery 
 
                 that I think she is doing [sic] to make.  
 
                 Currently, her range of motion is full, but the 
 
                 right shoulder still hurts.  It seems tighter than 
 
                 the left shoulder, and exhibits mild crepitance.  
 
                 According to the AMA Guides to Permanent 
 
                 Impairment, 3rd Edition, revised, this would 
 
                 translate into 6% upper extremity impairment, or 
 
                 4% whole person impairment.  This is a chronically 
 
                 painful joint, and overhead lifting will probably 
 
                 not be tolerable as has been noted previously.  
 
                 Apparently, the patient had a good work record 
 
                 prior to the injury of November, 1989, and based 
 
                 on this history, I would, therefore, conclude that 
 
                 her current shoulder impairment is attributable to 
 
                 that injury.
 
            
 
                 I have seen this patient once for the purpose of 
 
                 this evaluation and have not offered treatment.  
 
                 However, I do think she could benefit from 
 
                 standard chronic pain therapy, and have 
 
                 recommended that she see her regular physician to 
 
                 reconsider pain medication, and this was discussed 
 
                 with her....
 
            
 
            (Cl. Ex. 2, p. 2)
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether the work injury 
 
            on November 30, 1989 is the proximate cause of any permanent 
 
            condition.  It is the determination of the undersigned that 
 
            the initial injury to claimant's right shoulder has not 
 
            resulted in any permanent condition to claimant's right 
 
            shoulder.  As has been stated on numerous occasions, the 
 
            claimant has the burden of proving by a preponderance of the 
 
            evidence that the injury is a proximate cause of the 
 
            disability on which the claim is based.  A cause is 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            proximate if it is a substantial factor in bringing about 
 
            the result; it need not be the only cause.  A preponderance 
 
            of the evidence exists when the causal connection is 
 
            probable rather than merely possible.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. 
 
            Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 With respect to the first work injury, claimant had 
 
            been able to return to her same position following the work 
 
            injury.  She had normal range of motion.  She was treated 
 
            conservatively, and she sufficiently recovered so that she 
 
            could return to work and perform the same job 
 
            responsibilities.
 
            
 
                 The situation is different with respect to the second 
 
            work injury which occurred on December 7, 1989.  Claimant 
 
            has proven by a preponderance of the evidence that she has a 
 
            permanent disability to her right shoulder as a result of 
 
            this work injury.  After the second injury, claimant again 
 
            engaged in conservative treatment.  However, the 
 
            conservative treatment did not have positive results.  
 
            Eventually, claimant had surgery.  There were problems.  The 
 
            surgeon found dense fibrous tissue with bony fragments and 
 
            calcification.  (Jt. Ex. F, p. 39)  Claimant complained of 
 
            tenderness in her right shoulder.  She had increased pain on 
 
            range of motion.  Dr. Weatherwax found that claimant had 
 
            some mild restriction of internal and external rotation and 
 
            that she had the early signs of a frozen shoulder syndrome.  
 
            (Jt. Ex. F, p. 132)  Dr. Wirtz found that claimant had a 
 
            loss of motion with respect to internal rotation.  (Jt. Ex. 
 
            F, p. 136)   He restricted claimant from working above the 
 
            shoulder level with the right upper extremity.  Dr. Archer 
 
            found that claimant's shoulder was tighter and that she had 
 
            mild crepitance.  (Cl. Ex. 2, p. 2)  Two physicians opined 
 
            that claimant had permanent impairments totaling five to six 
 
            percent of the upper extremity.  Claimant has met the 
 
            requisite burden of proof.  She has sustained a permanent 
 
            condition. 
 
            
 
                 The next issue to address is the nature of claimant's 
 
            permanent condition.  Claimant alleges her condition is 
 
            related to the body as a whole.  Consequently, she asserts 
 
            that she has an industrial disability.  Defendants maintain 
 
            claimant has a scheduled member injury.  
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory.  The statute conferring 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            this right can also fix the amount of compensation payable 
 
            for different specific injuries.  The employee is not 
 
            entitled to compensation except as the statute provides.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 An injury to a scheduled member may, because of 
 
            aftereffects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Indus. Comm'r Rep. 281 (Appeal December 
 
            1982 ); a torn rotator cuff was found to cause disability to 
 
            the body as a whole.  
 
            
 
                 It is recognized that this division formerly and 
 
            consistently compensated shoulder injuries industrially on 
 
            the basis that such injuries involved disability to the body 
 
            as a whole.  Streeter v. Iowa Meat Processing Company, 
 
            (Appeal Decision, March 31, 1989). 
 
            
 
                 A more recent appeal decision has emphasized that it is 
 
            the situs of disability that is determinative.  In Prewitt 
 
            v. Firestone Tire and Rubber Company, (Appeal Decision, 
 
            August 12, 1992), the industrial commissioner has held that 
 
            where the treating surgeon testified that claimant had full 
 
            range of motion and full strength of the shoulder following 
 
            an injury and surgery, then claimant had sustained an injury 
 
            to the arm rather than to the shoulder.  Upon remand, the 
 
            Industrial Commissioner again determined that claimant's 
 
            injury was not an injury to the body as a whole.  In an 
 
            appeal decision, and after a remand from the Iowa District 
 
            Court, the industrial commissioner has again held that 
 
            claimant's injury was to the upper extremity and not to the 
 
            body as a whole.  (Appeal Dec. on remand June 30, 1993)
 
            
 
                 In another appeal decision, the industrial commissioner 
 
            has held that where claimant's condition consisting of hand, 
 
            arm, and shoulder symptoms are found to extend to the body 
 
            as a whole even though the physicians' ratings are to the 
 
            upper extremity.  Thompkins v. John Morrel & Company, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            (Appeal Dec. February 22, 1993).  
 
            
 
                 In the instant case, claimant has established that her 
 
            injury falls within the class of injuries to the shoulder 
 
            which extends to the body as a whole.  Dr. Wirtz notes there 
 
            is a loss of range of motion.  The surgical procedure 
 
            extends into the body as a whole.   More than just the upper 
 
            extremity is involved. The acromin is involved too.  
 
            Claimant is precluded from working above the shoulder level.
 
            
 
                 The mere fact that the impairment ratings use the upper 
 
            extremity to measure the impairment of the shoulder does 
 
            not, in and of itself, indicate that the impairment or 
 
            disability is restricted to a schedule.  Pullen v. Brown and 
 
            Lambrecht Earthmoving, Inc., II Iowa Ind. Comm'r Rpt. 308 
 
            (App. Dec. 1982); Franzen v. Mid-Valley, Inc., Vol 1., No. 
 
            4, State of Iowa Indust'l Comm'r Decisions, 834 (1985).  It 
 
            is common for physicians to rate both shoulder and hip 
 
            injuries with reference to the upper and lower extremity. 
 
            The shoulder is considered to be an element of the upper 
 
            extremity.  AMA Guides, 3d Edition, chapter 3, section 3.1g, 
 
            page 31.
 
            
 
                 This case is analagous to the Fullerton case, supra 
 
            where former Industrial Commissioner Robert Landess writes:
 
            
 
                 A disability to the shoulder is a disability to 
 
                 the body as a whole.... As claimant has an 
 
                 impairment to the body as a whole, an industrial 
 
                 disability had been sustained. (Fullerton, supra, 
 
                 at 135).
 
            
 
                 With respect to the present case, there is sufficient 
 
            legal authority to support a conclusion that the second 
 
            injury is an injury to the body as a whole.  It is to be 
 
            compensated using the industrial method.  
 
            
 
                 The final issue to address is whether claimant has 
 
            sustained an industrial disability.  Functional impairment 
 
            is an element to be considered in determining industrial 
 
            disability which is the reduction of earning capacity, but 
 
            consideration must also be given to the injured employee's 
 
            age, education, qualifications, experience and inability to 
 
            engage in employment for which 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 functional 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 related to a 
 
            degree of impairment of bodily function.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 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; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, 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 matters 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 functional 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 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3, State of Iowa, 
 
            Industrial Commissioner 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.
 
            
 
                 It is determined that claimant has sustained a 10 
 
            percent industrial disability.  She is entitled to 50 weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of $155.25 per week and commencing from December 13, 
 
            1990.
 
            
 
                 Two physicians have determined functional impairment 
 
            ratings for claimant.  The ratings are in the range of four 
 
            percent.  Claimant is precluded from engaging in work which 
 
            involves working above shoulder level.  Some manufacturing 
 
            jobs are no longer available to her.  Claimant, however is 
 
            able to return to the same type of employment which she had 
 
            held prior to the work injury.  Claimant can accommodate her 
 
            restriction of no work above shoulder level.  She has 
 
            learned to use carts, and to seek the assistance of 
 
            co-employees when reaching is involved.  It is acknowledged 
 
            that claimant had been terminated by defendant-employer.  
 
            However, the termination was in no way related to her work 
 
            injury or to her work restriction.  Even after she was 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            terminated, claimant was able to acquire similar employment 
 
            in only a matter of days.  
 
            
 
                 Claimant maintains she is no longer physically able to 
 
            work as a licensed practical nurse and that as a consequence 
 
            she has a loss of earning capacity.  It is not known whether 
 
            claimant can obtain employment in the nursing profession.  
 
            Claimant has not sought employment in the field for a number 
 
            of years.  The argument that her earning capacity has been 
 
            reduced because she is no longer able to practice nursing is 
 
            without merit. Claimant has been underemployed since 1985.  
 
            Her decision to forego a career in nursing is totally 
 
            unrelated to her right shoulder injury.  Previous to her 
 
            employment with defendant-employer, she abandoned the 
 
            nursing profession.  She testified she left nursing because 
 
            of stress.  Her decision to work in the restaurant and bar 
 
            business is unrelated to her injury in December of 1989.  
 
            She is well aware that the hospitality industry is 
 
            notoriously low with respect to its wage scale.  For four 
 
            years prior to the work injury, claimant had just been 
 
            earning minimum wages plus tips.  After the accident, she 
 
            was still earning minimum wages plus tips.  In actuality, 
 
            she was earning more per hour after the second work injury 
 
            because the state and federal minimum wage had increased.
 
            
 
                 It is recognized that claimant is precluded from 
 
            certain minimum wage jobs such as cleaning walls, painting 
 
            homes, or certain warehouse positions in the retail industry 
 
            where she is required to work above shoulder level.  
 
            However, there are still plenty of jobs in the service 
 
            industry which pay minimum wages or slightly better.  
 
            Employment is available to claimant.
 
            
 
                 While claimant does not have a college degree, she does 
 
            have 3 1/2 years of a college education.  She has no desire 
 
            to complete a degree requirement.  Her level of education 
 
            far exceeds the requirements of a minimum wage level job.  
 
            Claimant is articulate, friendly and presents herself well.  
 
            She is neat.  Her personality is pleasing.  She has had 
 
            prior experience in sales and she has some management 
 
            skills.  Her earning capacity is not as greatly reduced as 
 
            claimant maintains.  There are still plenty of entry level 
 
            jobs available to her.  She is capable of handling more 
 
            skillful positions.  Probably, there are more than entry 
 
            level jobs available to her, but claimant has decided to 
 
            remain underemployed. 
 
            
 
                 Therefore, in light of the above, coupled with this 
 
            deputy's personal observations and expertise, it is the 
 
            determination of this deputy that claimant has sustained a 
 
            10 percent permanent partial disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered that:
 
            
 
                 Defendants shall pay unto claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of one hundred fifty-five and 25/l00 dollars ($155.25) per 
 
            week and commencing on December 13, 1990.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 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 defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 
 
            4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jerry Schnurr, II
 
            Attorney at Law
 
            805 Central Ave.
 
            P.O. Box 952
 
            Fort Dodge, Iowa 50501-0952
 
            
 
            Ms. Iris J. Post
 
            Attorney at Law
 
            2222 Grand Avenue
 
            P.O. Box 10434
 
            Des Moines, Iowa 50306
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                           1803; 1803.1; 1803
 
                                           Filed September 10, 1993
 
                                           MICHELLE A. McGOVERN
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         HELEN PATTERSON,    
 
                   
 
              Claimant, 
 
                   
 
         vs.                                   File Nos. 997270
 
                                                         967695
 
         QUALITY INN,   
 
                                           A R B I T R A T I O N
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         UNITED STATES FIDELITY & 
 
         GUARANTY CO.,  
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
          
 
         1803; 1803.1
 
         Claimant sustained an injury to her right shoulder.  Surgery was 
 
         performed by Dr. Wahby.  The body side of the injury was affected 
 
         since the acromion was involved.  Two evaluating physicians rated 
 
         claimant has having an impairment to the right upper extremity.  
 
         Claimant had a reduced range of motion.  She was precluded from 
 
         engaging in work above shoulder level.  
 
         
 
         It was held that claimant sustained an injury to the body as a 
 
         whole.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) was 
 
         followed.  In Lauhoff, claimant was determined to have an 
 
         industrial disability since the injury affected the "body side" 
 
         of the shoulder joint.  In the present case, claimant's body side 
 
         was affected.
 
         
 
         1803
 
         Claimant worked in a restaurant and a lounge.  After she was 
 
         injured, she returned to a similar job at the same rate of pay or 
 
         higher.  Her doctor restricted claimant from working above 
 
         shoulder level.
 
         
 
         Claimant had 3 1/2 years of college, although she had no degree.  
 
         She had been licensed by the State of Iowa as a Licensed 
 
         Practical Nurse.  However, four years before her work injury, 
 
         claimant left the nursing profession because of stress.  Her 
 
         decision to abandon her career was unrelated to her work injury.  
 
         Since leaving the nursing profession, claimant had been 
 
         underemployed in the hospitality industry.  Her subsequent 
 
         employment in the restaurant and lounge business involved entry 
 
         level jobs which were compensated at the minimum wage level plus 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         tips.
 
         After her work injury, claimant could still perform work in many 
 
         entry level positions.  Some manufacturing, warehousing, or 
 
         cleaning positions were not available to her, since she could not 
 
         work above shoulder level.  However, there were numerous jobs in 
 
         the service industry which were still open to her.  Claimant's 
 
         decision to remain underemployed was a personal one and not 
 
         related to her work injury.  Claimant made no attempts to seek 
 
         employment which paid more than the prevailing minimum wage.
 
         
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         SHIRLEY GUNSOLLEY,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 967773
 
         ST. LUKE'S HOSPITAL,          :
 
                                       :    A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         FARM BUREAU MUTUAL            :
 
         INSURANCE COMPANY,            :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Shirley 
 
         Gunsolley, claimant, against St. Luke's Hospital, employer, 
 
         hereinafter referred to as the Hospital, and Farm Bureau Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         November 1, 1990.  On September 20, 1994, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.
 
         
 
              According to the hearing report, the parties have stipulated 
 
         to the following matters:
 
         
 
              1.  On November 1, 1990 claimant received an injury arising 
 
         out of and in the course of employment with the Hospital.
 
         
 
              2.  Claimant is not seeking additional temporary total or 
 
         healing period benefits in this proceeding.
 
         
 
              3.  The type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  At the time of injury claimant's gross rate of weekly 
 
         compensation was $491.60;  she was single;  and, she was entitled 
 
         to two exemptions.  Therefore, claimant's weekly rate of 
 
         compensation is $298.51 according to the Industrial 
 
         Commissioner's published rate booklet for this injury.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              5.  Medical benefits are not in dispute.
 
         
 
                                      ISSUES
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to 
 
         permanent disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants placed claimant's credibility at issue during cross- 
 
         examination as to the nature and extent of the disability.  From 
 
         her demeanor while testifying, claimant is found credible.
 
         
 
              Claimant worked for the Hospital as a surgical nurse from 
 
         March 1986 until 1992 at which time she left due to ongoing 
 
         chronic pain and she never returned.  Claimant earned $12.88 per 
 
         hour in this job at the time of the alleged injury herein.  
 
         Although she completed a two year registered nurse program at a 
 
         local community college, claimant began her employment at the 
 
         Hospital as a nurse's aid.  After passing her state board exams a 
 
         few weeks later, she was transferred to surgery as a registered 
 
         nurse.  Claimant worked both as a circulating nurse and as a 
 
         scrub nurse.  She generally received very good performance 
 
         ratings and was given additional responsibilities such as head of 
 
         the organ transplant team; head of the urology team; and proctor 
 
         or trainer of new nurses.  At the time of injury, claimant was 
 
         participating in a new first surgical assistant program in which 
 
         she would eventually qualify as a surgical assistant.  This 
 
         program arose because insurance companies were refusing to pay 
 
         family doctors to assist in surgical procedures.  Claimant was 
 
         compelled to drop from this program after the injury due to her 
 
         work activity restrictions.
 
         
 
              The injury in November 1990 was to the low back after 
 
         lifting a very heavy cadaver following an organ transplant.  
 
         Claimant was treated and evaluated by a number of physicians, 
 
         including Richard Krieter, M.D., an orthopedic surgeon; Byron 
 
         Rovine, M.D.; Michael Cullen, M.D.; Richard Roski, M.D., a 
 
         neurosurgeon; and Timothy Millen, M.D.  Claimant has undergone 
 
         extensive physical therapy including work hardening.  However, 
 
         her treatment to date has remained conservative as all physicians 
 
         have rejected surgery as a treatment option.  Claimant did 
 
         receive three epidural steroid injections but she stated that 
 
         these injections only temporarily relieved the pain.  Despite 
 
         this conservative care, chronic pain has plagued claimant since 
 
         the injury and has prevented a return to her surgical nurse job 
 
         at the hospital. 
 
         
 
              Under direction from Dr. Kreiter, claimant made an attempt 
 
         in the spring and summer of 1991 to gradually return to her 
 
         surgical nurse job and with accommodations by the hospital staff 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         in restricting her lifting.  Claimant stated that without such 
 
         accommodation, she could not perform the circulating nurse duty 
 
         due to the required lifting of instrument trays weighing over 35 
 
         pounds or to scrub nurse duty due to the need for prolonged 
 
         standing without a break during surgery.  Although she returned 
 
         to a full eight hour day in mid June, she was compelled by her 
 
         pain to leave work again at the end of June with a new round of 
 
         treatment and physical therapy by Dr. Roski.  At that time, 
 
         claimant was experiencing great fatigue, low back and leg pain, 
 
         leg numbness and inability to sleep through the night due to 
 
         pain.
 
         
 
              In September 1991 she was informed by the hospital that she 
 
         could not return to her surgery job without a release to full 
 
         duty.  Claimant then attempted a return to other jobs at the 
 
         hospital with help from a rehabilitation nurse retained by 
 
         defendants.  For a few months, claimant operated a computer 
 
         entering surgical data but this was only a temporary position.  
 
         Claimant testified that she worked at this job until her work was 
 
         completed.  A claim that she abandoned that job was not 
 
         substantiated by defendants.  Claimant applied for a holding room 
 
         nurse position.  Although within her restrictions, she was not 
 
         hired as hospital management felt she may not be physically able 
 
         to do the work.  The hospital also asked claimant to consider a 
 
         scheduling nurse position paying $10.00 per hour but claimant did 
 
         not apply stating that she did feel that she could perform the 
 
         sitting requirements.  Other clerical jobs paying $5.50-6.50 per 
 
         hour were suggested but claimant stated at the hearing that she 
 
         did not feel she had to take any lower paid positions.  Claimant 
 
         for a period of time also worked for a nursing home care facility 
 
         as a supervisor but this was again only temporary and part-time.  
 
         Claimant has now obtained a position as school nurse with the 
 
         Rock Island School District and earns $11.42 per hour although 
 
         she does not work in the summer and for extended vacation periods 
 
         during the year.
 
         
 
              Claimant clearly became angry with her lack of success in 
 
         returning to work.  This anger was apparent during a pain 
 
         management course in 1992.  She felt resentful of the hospital's 
 
         treatment of her.  Although claimant eventually completed the 
 
         program, she felt that the psychological aspects of this pain 
 
         management course were of no use to her.
 
         
 
              It is found that the work injury of November 1, 1990 is a 
 
         cause of a significant permanent impairment to the body as a 
 
         whole.  The exact percentage is not important in this industrial 
 
         disability case.  More important are the activity restrictions 
 
         imposed upon claimant by her physicians.  According to Dr. 
 
         Kreiter's most recent report, claimant is not able to perform 
 
         more than light to medium work with occasional lifting of 35 
 
         pounds, frequent lifting of 20-25 pounds and constant lifting of 
 
         only 10 pounds.  Claimant can no longer stoop or bend more than 
 
         occasionally or to walk, stand or sit more than two hours without 
 
         a break.  Given claimant's credible testimony, these restrictions 
 
         prevent her from returning to her surgery work at the hospital 
 
         and the hospital has not returned her to work in any capacity.  
 
         Although claimant probably should have at least applied for the 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         scheduling nurse position, there is no reason to believe it would 
 
         have been offered to her given the failure of the hospital to 
 
         offer the holding nurse job, another position technically within 
 
         claimant's restrictions.
 
         
 
              As a result of her work-related restrictions and 
 
         limitations, claimant has suffered a major economic loss.  
 
         Registered nurses at the hospital make currently $15.63 per hour 
 
         and work at least 40 hours a week.  Claimant stated that she 
 
         routinely worked overtime.  Today she makes over $4.00 per hour 
 
         less and works only 35 hours a week with extensive summer and 
 
         holiday breaks.  Although her relationship with the hospital was 
 
         strained, this is understandable given claimant's situation.  She 
 
         worked her way up from office nurse, to surgical tech and 
 
         eventually to registered nurse as a single mother and was making 
 
         a good living at the time of her injury.  At the time of injury, 
 
         she was advancing in her profession and about to complete a 
 
         surgical assistant program.  Today, she is making considerably 
 
         less.  Her future in surgery has ended and continuation in 
 
         surgery was her best opportunity for advancement in her chosen 
 
         profession.
 
         
 
              Given her age at 45 years, her potential for retraining is 
 
         limited.  However, she does have a high school education with a 
 
         two year nursing degree which gives her considerable transferable 
 
         intellectual skills.  But, again, her loss of opportunity and 
 
         earning capacity is substantial despite her return to the 
 
         workforce.
 
         
 
              Claimant had a instance of back problems 15 years before 
 
         this injury but there is no evidence to suggest that she did not 
 
         fully recover from these problems and was pain free at the time 
 
         of the injury herein as claimed by claimant.
 
         
 
              From examination of all of the factors of industrial 
 
         disability, it is found that despite her return to the workforce, 
 
         the work injury of November 1, 1990 was a cause of a 50 percent 
 
         loss of earning capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact. Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to 
 
         such an opinion is for the finder of fact to determine from the 
 
         completeness of the premise given the expert or other surrounding 
 
         circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with non-expert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966) 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974).
 
         
 
              As the claimant has shown that the work injury was a cause 
 
         of permanent physical impairment or limitation upon activity 
 
         involving the body as a whole, the degree of permanent disability 
 
         must be measured pursuant to Iowa Code section 85.34(2)(u).  
 
         However, unlike scheduled member disabilities, the degree of 
 
         disability under this provision is not measured solely by the 
 
         extent of a functional impairment or loss of use of a body 
 
         member.  A disability to the body as a whole or an "industrial 
 
         disability" is a loss of earning capacity resulting from the work 
 
         injury.  Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 
 
         N.W. 899 (1935).  A physical impairment or restriction on work 
 
         activity may or may not result in such a loss of earning 
 
         capacity.  Examination of several factors determines the extent 
 
         to which a work injury and a resulting medical condition caused 
 
         an industrial disability.  These factors 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 healing period; the work experience of the employee 
 
         prior to the injury, after the injury and potential for 
 
         rehabilitation; the employee's qualifications intellectually, 
 
         emotionally and physically; earnings prior and subsequent to the 
 
         injury; age; education; motivation; functional impairment as a 
 
         result of the injury; and inability because of the injury to 
 
         engage in employment for which the employee is fitted.  Loss of 
 
         earnings caused by a job transfer for reasons related to the 
 
         injury is also relevant.  See Peterson v. Truck Haven Cafe, Inc., 
 
         (Appeal Decision, February 28, 1985).
 
         
 
              Loss of potential employment is also a factor to consider in 
 
         assessing industrial disability.  Collier v. Sioux City Comm. 
 
         Sch. Dist., Case No. 953453 (Appeal Decision filed February 25, 
 
         1994.
 
         
 
              In the case sub judice, it was found that claimant suffered 
 
         a 50 percent loss of her earning capacity as a result of the work 
 
         injury.  Such a finding entitles claimant to 250 weeks of 
 
         permanent partial disability benefits as a matter of law under 
 
         Iowa Code section 85.34(2)(u) which is 50 percent of 500 weeks, 
 
         the maximum allowable number of weeks for an injury to the body 
 
         as a whole in that subsection. 
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant two hundred fifty (250) 
 
         weeks of permanent partial disability benefits at a rate of two 
 
         hundred ninety-eight and 51/l00 dollars ($298.51) per week from 
 
         August 4, 1992.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              3.  Defendants shall pay interest on weekly benefits awarded 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              5.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to rule 343 IAC 
 
         3.1.
 
         
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. E. Tobey, III
 
         Attorney at Law
 
         601 Brady St  STE 211
 
         Davenport  IA  52803
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         PO Box 339
 
         Davenport  IA  52805-0339
 
         
 
         Ms. Angela A. Swanson
 
         Attorney at Law
 
         5400 University Ave
 
         West Des Moines  IA  50265
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed October 20, 1994
 
                                          LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHIRLEY GUNSOLLEY,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 967773
 
            ST. LUKE'S HOSPITAL,     
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
            
 
            FARM BUREAU MUTUAL  
 
            INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1803
 
            
 
            Non-precedential, extent of disability case.