BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
CATHY ACCORDINO,      
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                       File No. 971023
 
BRIDGESTONE/FIRESTONE,     
 
                                         A P P E A L
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
PACIFIC EMPLOYERS INSURANCE,    
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed August 11, 1994 is affirmed 
 
and is adopted as the final agency action in this case.
 
 
 
Claimant and defendants shall share equally the costs of the appeal 
 
including transcription of the hearing.
 
 
 
Signed and filed this ____ day of February, 1995.      
 
                              ________________________________                 
 
                              BYRON K. ORTON           
 
                              INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Robert W. Pratt
 
Mr. Max Schott
 
Attorneys at Law
 
6959 University Ave
 
Des Moines  IA  50311-1540
 
 
 
Ms. Valerie A. Landis
 
Attorney at Law
 
Terrace Center  STE 111
 
2700 Grand Ave
 
Des Moines  IA  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                            1808
 
                            Filed February 21, 1995
 
                            Byron K. Orton
 
          
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
CATHY ACCORDINO,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 971023
 
BRIDGESTONE/FIRESTONE,  
 
                                        APPEAL
 
     Employer, 
 
                                       DECISION
 
and       
 
          
 
PACIFIC EMPLOYERS INSURANCE, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
1808
 
Injury date in case of bilateral carpal tunnel and cubital tunnel 
 
syndromes found to be when claimant left work for surgery, not when she 
 
first reported symptoms.  The injury date made a significant difference 
 
in rate of compensation.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CATHY ACCORDINO,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 971023
 
            BRIDGESTONE/FIRESTONE,        :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding under Iowa Code 
 
            chapter 17A.  Claimant, Cathy Accordino, filed a petition in 
 
            arbitration against her former employer, Firestone Tire and 
 
            Rubber Company, and its insurance carrier, Pacific Employers 
 
            Insurance, on account of a claimed work injury of June 6, 
 
            1989 (first medical attention) or September 7, 1989 (surgery 
 
            and first lost work).  A hearing was accordingly scheduled 
 
            and held in Des Moines, Iowa on April 27, 1994.  The record 
 
            consists of claimant's testimony, claimant's exhibits 1-45 
 
            and defendants' exhibits 1-5.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  An employment relationship existed 
 
                    between claimant and Firestone Tire and 
 
                    Rubber Company at the time of the alleged 
 
                    injury;
 
            
 
                    2.  If claimant sustained injury arising out 
 
                    of and in the course of employment, it 
 
                    caused temporary disability from September 
 
                    7, 1989 through October 9, 1989 and July 21 
 
                    through August 14, 1991;
 
            
 
                    3.  Entitlement to temporary total 
 
                    disability or healing period benefits is no 
 
                    longer in dispute;
 
            
 
                    4.  At the time of injury, claimant was 
 
                    single and entitled to five exemptions;
 
            
 
                    5.  Affirmative defenses have not been 
 
                    raised;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    6.  Entitlement to medical benefits is no 
 
                    longer in dispute; and,
 
            
 
                    7.  Defendants have voluntarily paid 56.571 
 
                    weeks of compensation at the time of $343.65 
 
                    per week, 7.143 weeks of which constituted 
 
                    healing period or temporary total 
 
                    disability.
 
            
 
                 Issues presented for resolution include:
 
            
 
                    1.  Whether claimant sustained injury 
 
                    arising out of and in the course of 
 
                    employment;
 
            
 
                    2.  Whether the injury caused permanent 
 
                    disability;
 
            
 
                    3.  The nature, extent and commencement date 
 
                    of permanent disability, if any; and,
 
            
 
                    4.  The correct rate of weekly compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Cathy Accordino, a right hand dominant 39 year old 
 
            woman, commenced employment with Firestone Tire and Rubber 
 
            Company in January 1989.  Defendant Firestone operates a 
 
            tire manufacturing facility in Des Moines, Iowa.
 
            
 
                 At the time she began working for Firestone, Ms. 
 
            Accordino suffered no physical problems.  She worked as a 
 
            tire trimmer, tire inspector, forklift operator and utility 
 
            worker in the buff and repair department.  In particular, 
 
            work as a tire trimmer and inspector involved strenuous use 
 
            of the upper extremities, as claimant would rotate tires 
 
            with one hand, simultaneously trimming excess rubber with a 
 
            knife held in the opposite hand.
 
            
 
                 Unfortunately, claimant soon developed upper extremity 
 
            problems eventually diagnosed through EMG testing as 
 
            bilateral carpal tunnel syndrome.  On June 6, 1989, she 
 
            first appeared at the plant medical department with 
 
            complaints of wrist pain.  She was seen by the company 
 
            doctor, James Blessman, M.D., and eventually referred for 
 
            consultation to Arnis Grundberg, M.D.  
 
            
 
                 Dr. Grundberg first saw claimant on August 2, 1989.  
 
            Based on her symptoms, examination and EMG testing, he 
 
            developed an impression of bilateral carpal tunnel syndrome 
 
            and probable bilateral cubital tunnel syndrome.
 
            
 
                 On September 7, 1989, Dr. Grundberg performed bilateral 
 
            carpal tunnel decompressions.  On a number of forms prepared 
 
            to release claimant to light duty work following surgery, 
 
            Dr. Grundberg indicated that his entire diagnosis, including 
 
            both carpal and cubital tunnel syndrome, was work related.  
 
            Claimant returned to light duty work on October 10, 1989 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with restrictions against pushing, pulling or lifting over 
 
            five pounds with either hand.
 
            
 
                 Although the bilateral decompressions initially 
 
            relieved symptoms, claimant soon suffered a recurrence.  She 
 
            had returned to full duty on November 5, 1989.
 
            
 
                 By August 1990, Dr. Grundberg reports complaints of 
 
            bilateral shoulder pain which he diagnosed as bursitis.  
 
            However, Dr. Grundberg eventually concluded that the 
 
            shoulder problems were not work related.  On March 9, 1992, 
 
            Dr. Grundberg rated impairment at three percent of each arm 
 
            due to residuals from carpal tunnel syndrome.  At that time, 
 
            his impression also included mild bilateral cubital tunnel 
 
            syndrome.  Because the carpal tunnel decompressions had 
 
            failed to relieve symptoms, Dr. Grundberg recommended 
 
            against surgical treatment of the cubital tunnel problems.  
 
            On January 5, 1994, Dr. Grundberg amended his impairment 
 
            rating to add an additional five percent to each arm for 
 
            unoperated bilateral cubital tunnel syndrome.  In this 
 
            letter, Dr. Grundberg noted that claimant had some shoulder 
 
            complaints in October 1990, but that such complaints were 
 
            more significant in March 1992 (when he last saw claimant); 
 
            because Ms. Accordino had not worked for Firestone since 
 
            July 1991, he concluded that the shoulder complaints were 
 
            not causally related to her work.
 
            
 
                 Actually, claimant was laid off by Firestone in August 
 
            1991.  In 1991 and 1992, claimant was treated by Donna J. 
 
            Bahls, M.D., a specialist in rehabilitation and physical 
 
            medicine.  On September 14, 1992, Dr. Bahls wrote that "her 
 
            pains are casually [sic] related to her employment 
 
            activities at Firestone from cumulative work injury."  
 
            Although Dr. Bahls' previous notes had made some reference 
 
            to pains radiating up to the shoulders and neck, it is not 
 
            at all clear that this causation opinion was intended to 
 
            include those symptoms, or possible permanent disability to 
 
            the neck or shoulders.  Dr. Bahls recommended physical 
 
            restrictions to limit overhead use of the arms and avoid 
 
            repetitive work with the hands and wrists.  Dr. Bahls did 
 
            not rate impairment and would "defer to someone else" on 
 
            that score.
 
            
 
                 Claimant was also seen on a number of occasions in 1991 
 
            by Robert F. Breedlove, M.D.  On November 21, Dr. Breedlove 
 
            felt claimant was experiencing symptoms which might be 
 
            referred to cubital tunnel or mild bilateral reflex 
 
            sympathetic dystrophy.  By November 26, 1991, following 
 
            repeat EMGs and nerve conduction velocity testing, Dr. 
 
            Breedlove recommended that claimant return to Dr. Grundberg.  
 
            He noted that testing was negative for cubital tunnel 
 
            syndrome, but positive with respect to the median nerve 
 
            across the carpal tunnel.  He did not recommend further 
 
            surgical treatment.
 
            
 
                 Claimant was seen for evaluation on February 1, 1991 by 
 
            Keith W. Riggins, M.D.  Dr. Riggins identifies himself as 
 
            board certified in orthopedic surgery and arthroscopic 
 
            surgery.  Dr. Riggins concluded that impairment was confined 
 
            to the distributions of the ulnar nerve at the elbow 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            bilaterally and the median nerve at the wrist bilaterally.  
 
            Utilizing the AMA Guides to the Evaluation of Permanent 
 
            Impairment (4th Edition), Dr. Riggins found 30 percent 
 
            impairment to the right upper extremity due to cubital 
 
            tunnel syndrome and 20 percent due to carpal tunnel; also 30 
 
            percent impairment to the left upper extremity due to 
 
            cubital tunnel and 20 percent due to carpal tunnel syndrome.  
 
            Converting these impairment ratings to the whole person, Dr. 
 
            Riggins found an 18 percent plus a 12 percent impairment on 
 
            each side due to the two conditions, which he thereupon 
 
            combined to find a 48 percent impairment to the whole 
 
            person.  Dr. Riggins further found both conditions to be 
 
            caused by cumulative injury in the employ of Firestone, with 
 
            current impairment attributable to residuals after 
 
            appropriate treatment.  He thought claimant unable to engage 
 
            in activities requiring repetitive or finely controlled 
 
            motions of the upper extremities on either side, unable to 
 
            engage in tight gripping and lifting or carrying, and likely 
 
            to require future treatment to control symptoms by 
 
            utilization of anti-inflammatory medications.
 
            
 
                 During the 13 weeks prior to the injury date of 
 
            September 7, 1989, payroll records reflect the following 
 
            hours and straight time earnings:
 
            
 
                 Week Ending          Hours           Straight Time
 
                                                        Earnings
 
            
 
                  9/03/89             32.0              $352.08
 
                  8/27/89             40.0               440.10
 
                  8/20/89             32.0               352.08
 
                  8/13/89             48.2               503.63
 
                  8/06/89             40.0               395.85
 
                  7/30/89             48.0               475.26
 
                  7/23/89             40.0               396.05
 
                  7/16/89             40.0               396.05
 
                  7/09/89                                  0.00
 
                  7/02/89             40.0               389.60
 
                  6/25/89             40.0               389.60
 
                  6/18/89             40.2               422.91
 
                  6/11/89             50.0               573.82
 
            
 
                 The record does not disclose why claimant missed eight 
 
            hours during the weeks ending August 20 and September 3 or 
 
            why she had no earnings for the week ending July 9.  
 
            Claimant's testimony that she missed hours due to family 
 
            health problems is understood to relate to the 13 weeks 
 
            prior to June 6.  
 
            
 
                                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, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 Drs. Grundberg, Bahls and Riggins attribute claimant's 
 
            carpal tunnel and cubital tunnel symptomatology to 
 
            cumulative trauma resulting from claimant's work at 
 
            Firestone.  No contrary medical evidence is shown of record.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Claimant prevails on the "arising out of" and causation 
 
            issues.
 
            
 
                 The appropriate date of injury is September 7, 1989, 
 
            when claimant underwent surgery and was forced to leave work 
 
            as a result.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Claimant returned to work on October 10, 1989.  
 
            Although she had a subsequent period of temporary total 
 
            disability prior to her layoff, the healing period ended 
 
            when she returned to work.  At about this time claimant 
 
            reached the "high water mark" in her imperfect recuperation, 
 
            since her symptoms have steadily worsened since.
 
            
 
                 We must next consider whether claimant's permanent 
 
            disability is to the body as a whole or two scheduled 
 
            members.  Disability to the body as a whole is compensated 
 
            by the industrial method as loss of earning capacity.  
 
            Scheduled member disabilities are compensated according to 
 
            the schedule set forth in Iowa code section 85.34 as a 
 
            measure of functional loss.  In this case, claimant has 
 
            proven disability to each arm from carpal and cubital tunnel 
 
            syndromes, but not disability extending to the shoulders, 
 
            neck or body otherwise as a whole.  All of claimant's upper 
 
            extremity symptoms developed together and claimant's only 
 
            surgery was bilateral on the same day.  Claimant's 
 
            disability should be compensated under Iowa code section 
 
            85.34(2)(s):
 
            
 
                    For all cases of permanent partial 
 
                    disability compensation shall be paid as 
 
                    follows:
 
            
 
                    ....
 
            
 
                    s.  The loss of both arms, or both hands, or 
 
                    both feet, or both legs, or both eyes, or 
 
                    any two thereof, caused by a single 
 
                    accident, shall equal five hundred weeks and 
 
                    shall be compensated as such, however, if 
 
                    said employee is permanently and totally 
 
                    disabled the employee may be entitled to 
 
                    benefits under subsection 3.
 
            
 
                 Claimant was not totally disabled by the work injury 
 
            under review, although she has since been involved in a 
 
            terrible automobile crash and has suffered much greater 
 
            disabilities.  Ms. Accordino is currently receiving Social 
 
            Security disability benefits.  However, for purposes of this 
 
            injury, claimant's age, intelligence (normal, at least) and 
 
            work experience, including clerk/cashier, clerical and 
 
            physician's assistance experience, indicate that although 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            the restrictions suggested by Drs. Grundberg, Bahls and 
 
            Riggins are severe, claimant would still have some earning 
 
            capacity.
 
            
 
                 The impairment ratings of Dr. Grundberg and Dr. Riggins 
 
            vary considerably.  Dr. Grundberg's opinion certainly 
 
            deserves respect as that of the primary treating physician 
 
            and surgeon.  However, this decision prefers the detailed 
 
            evaluation of Dr. Riggins.  Dr. Riggins' report is 
 
            consistent with the symptoms claimant experiences (although 
 
            there are hints in the record that symptom magnification may 
 
            be a factor) and is based on a much more recent evaluation 
 
            than is the case with Dr. Grundberg, who based his 
 
            impairment rating on claimant's condition in 1992.  Dr. 
 
            Riggins' multiple board certification is also impressive.
 
            
 
                 The calculation of combined disability using the AMA 
 
            Guides combined values chart is consistent with the 
 
            statute.
 
            
 
                 Forty-eight percent of 500 weeks is 240 weeks.  
 
            Claimant is entitled to 240 weeks of permanent partial 
 
            disability benefits commencing October 10, 1992, but 
 
            interrupted from July 21 through August 14, 1991, when 
 
            claimant sustained a second period of temporary disability 
 
            as per stipulation.
 
            
 
                 This leaves determination of rate as an issue.  Because 
 
            claimant was paid an hourly wage, her compensation should be 
 
            determined under Iowa Code section 85.36(6).  The statute 
 
            provides that the weekly earnings in this case is computed 
 
            by dividing by 13 the straight time earnings during the last 
 
            competed period of 13 consecutive weeks immediately 
 
            preceding the injury.  The payroll records demonstrate that 
 
            claimant worked two short weeks and had no earnings 
 
            whatsoever in one of the 13 weeks prior to September 3.  The 
 
            agency has long recognized that nonrepresentative weeks 
 
            should be excluded from rate calculation.  Hardy v. 
 
            Abell-Howell Co., 841126 (App. Dec., December 12, 1990); 
 
            Davis v. Weitz Co., 898933 (App. Dec., November 25, 1992).  
 
            The week ending July 9 is clearly nonrepresentative, since 
 
            claimant had no earnings.  The record does not reflect why 
 
            she worked but 32 hours during the weeks ending August 20 
 
            and September 3, but since it does not, claimant has failed 
 
            to show they are nonrepresentative.  The straight time 
 
            earnings during the other 12 weeks totals $5,087.03.  
 
            Division by 12 yields a quotient of $423.92.  The rate 
 
            tables published by this office show that a single 
 
            individual with five exemptions and gross average weekly 
 
            wages of $423.92 is entitled to a compensation rate of 
 
            $275.07.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay two hundred forty (240) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred seventy-five and 07/100 dollars ($275.07) commencing 
 
            October 10, 1989, except said benefits are interrupted from 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            July 21, 1991 through August 14, 1991.
 
            
 
                 Defendants shall have credit for permanent partial 
 
            disability benefits voluntarily paid prior to hearing.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                           ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines Iowa 50311-1540
 
            
 
            Ms Valerie A Landis
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1808
 
                                            Filed August 11, 1994
 
                                            DAVID RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CATHY ACCORDINO,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 971023
 
            BRIDGESTONE/FIRESTONE,        :
 
                                              A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1808
 
            Injury date in case of bilateral carpal tunnel and cubital 
 
            tunnel syndromes found to be when claimant left work for 
 
            surgery, not when she first reported symptoms.  The injury 
 
            date made a significant difference in rate of compensation.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LILLIAN NAIRN, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 971064
 
            ALBIN SWANSON, :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE FARM INSURANCE CO.,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Lillian 
 
            Nairn, claimant, against Albin Swanson, employer, and State 
 
            Farm Insurance Co., insurance carrier, defendants, for 
 
            benefits as a result of an alleged injury which occurred on 
 
            October 23, 1990.  A hearing was held in Sioux City, Iowa, 
 
            on August 26, 1992 and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Dennis 
 
            McElwain.  Defendants were represented by Judith Ann Higgs.  
 
            The record consists of the testimony of Lillian Nairn, 
 
            claimant, joint exhibits 1 through 26 and claimant's 
 
            exhibits A through E.  The parties agreed that defendants' 
 
            exhibits C and E tended to be duplicates, however, exhibit E 
 
            helped to explain exhibit C and therefore both C and E were 
 
            admitted into evidence by agreement of the parties 
 
            (Transcript pages 8-11).  Defendants' presented a brief 
 
            statement of contentions at the time of the hearing.  Both 
 
            attorneys submitted outstanding post-hearing briefs.  The 
 
            deputy ordered a transcript of the hearing.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury on October 23, 
 
            1990, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether the alleged injury was the cause of either 
 
            temporary or permanent disability.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits.
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                      injury
 
            
 
                 It is determined that claimant did not sustain an 
 
            injury on October 23, 1990, which arose out of and in the 
 
            course of her employment with employer.
 
            
 
                 Claimant, age 51, has been employed as a care giver 
 
            since 1978, a period of approximately 12 years prior to this 
 
            incident (Tran., pp. 31 & 32).  She worked for her previous 
 
            employer as a care giver for approximately six and one-half 
 
            years from June 13, 1983 to January 5, 1990.  This previous 
 
            employment also required lifting the patient (Tran., pp. 
 
            32-34,74).  Claimant denied that she sustained any injuries 
 
            while working for the previous employer (Tran., p. 34) but 
 
            did admit that her back got tired from lifting her former 
 
            client (Tran., p. 92).  Claimant testified, "... -- my back 
 
            problems there wasn't like it is now." (Tran., p. 35).  
 
            
 
                 The employer in this action is a stroke victim 
 
            approximately 81 years of age who also had Parkinson's 
 
            disease and was confined to a wheelchair (Tran., p. 41).  
 
            Claimant started to work for employer Swanson on August 29, 
 
            1990 (Tran., pp. 40 & 82) and continued to work there until 
 
            November 7, 1990 (Tran., p. 88), a period of ten weeks.  
 
            Claimant's primary responsibility was to be a companion and 
 
            to talk with him (Tran., p. 42).  Her duties also included 
 
            bathing and dressing employer, assisting him into and out of 
 
            bed and a wheelchair, and onto and off of a couch and the 
 
            toilet (Tran., p. 43).  The weight of employer was not 
 
            introduced into evidence but claimant testified that he was 
 
            an average size man and defendants' counsel suggested that 
 
            he might weigh about 135 pounds (Tran., p. 42 & 70).  
 
            Claimant testified that her previous employer was a woman 
 
            who weighed approximately 89 pounds (Tran., p. 42).  
 
            
 
                 In addition to claimant, employer also employed another 
 
            woman as a live-in companion who cooked the meals and still 
 
            another person was employed as housekeeper (Exhibit 24, page 
 
            6).  Claimant typically worked from 8:00 a.m. on Monday 
 
            morning until 5:00 p.m. on Friday afternoon (Tran., p. 41).
 
            
 
                 Claimant testified that at approximately 10:30 a.m. on 
 
            October 23, 1990 that she was trying to get a Depend (a 
 
            sanitary diaper) on employer when she felt pain in her mid 
 
            back and chest (Tran., p. 42; Ex., pp. 34, 35 & 37).  This 
 
            caused a recurrence of angina pain for which she took two 
 
            Nitroglycerin pills.  Claimant said she got over the angina 
 
            pain but she continued to have a steady pain in her mid back 
 
            (Tran., pp. 45 & 46).  Claimant testified that she had never 
 
            experienced anything like that before (Tran., pp. 46 & 47).  
 
            Claimant stated that she called her doctor's office that 
 
            afternoon at about 2:30 p.m. on October 23, 1990 and a nurse 
 
            set up a stress test for her on the following day October 
 
            24, 1990 (Tran., p. 48).   
 
            
 
                 The office records of Gene E. Michel, M.D., claimant's 
 
            personal physician, do not show an entry for October 23, 
 
            1990.  Rather, Dr. Michel's office notes show that claimant 
 
            called on October 22, 1990, the day before the alleged 
 
            injury.  The doctor's office note states, "Lillian called.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Wants stress test set up.  Phoned back.  Pain left side 
 
            since last week.  Recommended Dr. Parker." (Ex. 4, p. 2).  
 
            Dr. Michel's office note for October 22, 1990, makes no 
 
            mention of lifting a patient and feeling mid back and chest 
 
            pain (Ex. 4, p. 2).  
 
            
 
                 At the hearing claimant did not testify that she 
 
            reported the injury to employer, the cook, or the 
 
            housekeeper at her place of her employment nor did any of 
 
            these persons testify that claimant reported a mid back and 
 
            chest pain to them while lifting employer at anytime while 
 
            she was working for employer.  Claimant did say in a 
 
            telephone statement to the insurance company representative 
 
            on January 3, 1991, that she reported it to the cook when 
 
            the cook came home that day (Ex. 24, p. 36).  This statement 
 
            is neither corroborated nor controverted.  Robert D. 
 
            Swanson, employer's son, responding to interrogatory number 
 
            9 admitted that a work incident was reported by claimant to 
 
            him.  In interrogatory 14 he states that he was notified 
 
            when claimant left to go to the doctor.  Dr. Michel's notes 
 
            show that she saw Dr. Wesley A. Parker, M.D., for the stress 
 
            test on October 24, 1990 and she saw Dr. Michael with 
 
            urinary tract problems on October 29, 1990 and November 5, 
 
            1990, but that claimant first complained of lower back pain 
 
            from lifting Mr. Swanson on November 7, 1990 (Ex. 24, pp. 11 
 
            & 16, Ex. 4, pp. 1 & 2).
 
            
 
                 Therefore it cannot be determined whether claimant 
 
            reported this injury to employer or anybody connected with 
 
            him before November 7, 1990 or not.  Furthermore, it is 
 
            noteworthy that when claimant did first allege back pain on 
 
            November 7, 1990, from lifting Mr. Swanson she stated that 
 
            it was in her lower back and moved around to the front 
 
            rather than in her mid back and chest (Ex. 4, p. 1).
 
            
 
                 The first report of injury, which was introduced into 
 
            evidence as a joint exhibit, shows that claimant experienced 
 
            a pain which went from her back to her chest on the left 
 
            side and all the way through on November 7, 1990, and that 
 
            the employer first knew of the condition on November 7, 1990 
 
            (Iowa Code section 86.11).  This first report of injury is 
 
            signed by Robert D. Swanson, employer's son (Ex. 20).
 
            
 
                 Claimant insisted in her telephone statement to the 
 
            insurance adjuster (Ex. 24, pp. 35 & 36) and in her 
 
            testimony at the hearing (Tran., p. 47) that she was injured 
 
            on October 23, 1990 and that she called the doctor's office 
 
            on that same day.  However, Dr. Michel recorded that 
 
            claimant first called him on October 22, 1990.  The doctor 
 
            further noted that on October 22, 1990, that claimant had 
 
            pain in her left side since last week (Ex. 4, p. 2).  It is 
 
            further noted that when she saw the doctor prior to this 
 
            injury on October 19, 1990, concerning urinary problems that 
 
            he also prescribed Nitrostat for chest pain (Ex. 4, p. 2).  
 
            With respect to when claimant reported this injury to Dr. 
 
            Michel the written office note of Dr. Michel and the other 
 
            person in his office, both of whom made notes on October 22, 
 
            1990, is preferred over Claimant's recollection (Tran. 48 & 
 
            86).  Claimant admitted that her recollection was not good 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            about what she told Dr. Michel on other matters (Tran., pp. 
 
            90 & 91).
 
            
 
                 It is also noted that (1) approximately one year prior 
 
            to this alleged injury, Dr. Michel recorded that claimant 
 
            complained of chest pain and tenderness in the upper 
 
            thoracic spine on November 13, 1989 (Ex. 4, p. 3), (2) that 
 
            he prescribed Nitrostat for chest pain just a few days prior 
 
            to this injury on October 19, 1990 (Ex. 4, p. 2) and (3) 
 
            that on October 22, 1990, Dr. Michel noted that claimant had 
 
            pain in the left side since last week (Ex. 4, p. 2).  
 
            
 
                 On October 24, 1990, the hospital records of Sioux 
 
            Valley Memorial Hospital reflect that claimant told a nurse 
 
            that she had experienced chest pain intermittently for the 
 
            past year and that she had it two times in the last week.  
 
            The hospital makes no mention of mid back and chest pain 
 
            while lifting employer on October 23, 1990 or at anytime 
 
            (Ex. 2, p. 2).
 
            
 
                 Dr. Parker, who administered the stress test at the 
 
            hospital on October 24, 1990, makes no mention of mid back 
 
            and chest pain while lifting employer on October 23, 1990.  
 
            On the contrary, Dr. Parker recorded that claimant had a 
 
            history of intermittent substernal chest pain irrespective 
 
            of activity, relieved by Nitroglycerin, and that there was a 
 
            family history of premature heart disease.  The results of 
 
            the stress test were normal.  Moreover, even though Dr. 
 
            Parker discontinued the test due to leg fatigue and dry 
 
            mouth he nevertheless commented that claimant's functional 
 
            aerobic capacity was ten percent better than active females 
 
            of the same age (Ex. 2, p.3).
 
            
 
                 After the stress test was completed claimant did 
 
            complain of discomfort in her midsternum and pain in her 
 
            back.  The complete records shows that these symptoms were 
 
            first recorded on November 13, 1989.  Furthermore, they 
 
            would not constitute a specific injury but would appear to 
 
            be a result of changes in the human body incident to the 
 
            general processes of nature that do not amount to a personal 
 
            injury which are natural changes which may have come about 
 
            because of a life devoted to labor and hard work.  Claimant 
 
            testified that her back became very tired when lifting her 
 
            previous employer.  Claimant has a family history of early 
 
            heart disease.  Those natural changes do not constitute a 
 
            personal injury even though they bring about some impairment 
 
            of health or the total or partial incapacity of the 
 
            functions of the human body.  Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934).
 
            
 
                 Dr. Michel recorded in his notes of October 24, 1990, 
 
            that the stress test was normal.  Thus, this office note on 
 
            October 24, 1990, which was made by claimant's personal 
 
            physician and which was made the day after the alleged 
 
            injury makes no mention of mid back and chest pain on the 
 
            previous day or at anytime (Ex. 4, p. 2).  
 
            
 
                 At the hearing claimant testified that she told Dr. 
 
            Parker that her back pain was caused by this alleged injury 
 
            but neither the nurse's notes nor Dr. Parker's notes make 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            any mention of mid back or chest pain which occurred on 
 
            October 23, 1990, while lifting employer (Tran., pp. 49 & 
 
            50; Ex. 2).  
 
            
 
                 Dr. Michel noted on October 29, 1990, that claimant 
 
            called and reported that she thought she passed some kidney 
 
            stones.  Back ache is mentioned but it appears to be in 
 
            conjunction with her urinary problems.  The doctor recorded, 
 
            "Now backache, no fullness but burning after voiding." (Ex. 
 
            4, p. 2).  The doctor then continues to discuss the stress 
 
            test and the urinary tract problems but no mention is made 
 
            of mid back and chest pain which occurred on October 23, 
 
            1990, while lifting her employer.  Dr. Michel concludes this 
 
            entry of October 29, 1990, with this notation, "She called 
 
            back with tightness in her throat and chest and is all 
 
            nerved up.  I recommended she get out and walk to release 
 
            some of this tension and not just take nerve pills." (Ex. 4, 
 
            p. 2).  
 
            
 
                 On November 5, 1990, Dr. Michel noted that claimant 
 
            reported to him that she had left flank pain which moved 
 
            around to the front and she thought that she had passed what 
 
            looked like a long light colored kidney stone.  This office 
 
            note, again, makes no mention of mid back or chest pain that 
 
            occurred on October 23, 1990, while lifting employer (Ex. 2, 
 
            p. 1).
 
            
 
                 At the hearing claimant complained that she did not 
 
            receive any medical care for her back after seeing Dr. 
 
            Parker and when she continued to see Dr. Michel even though 
 
            her back hurt something terrible (Tran., p. 50).  Claimant 
 
            related that the pain in her back got so bad that she 
 
            couldn't take it anymore and that she was forced to quit her 
 
            employment with employer on November 7, 1990 (Tran., p. 51).  
 
            Claimant testified that she did not tell the employer that 
 
            she was leaving but rather told the cook that she was 
 
            leaving because she did not want to worry employer (Tran., 
 
            p. 51).
 
            
 
                 The office note of Dr. Michel for November 7, 1990, 
 
            states that claimant complained of pain in her lower back 
 
            around to the front when she lifts.  Thus, even though 
 
            claimant was quite specific at the hearing that the pain was 
 
            in her mid back by words and gestures (Tran., pp. 46 & 51), 
 
            Dr. Michel records that she reported to him that the pain 
 
            was in her lower back and moved around to the front (Ex. 4, 
 
            p. 1).  
 
            
 
                 On November 7, 1990, Dr. Michel wrote in his notes, 
 
            "Works for Al Swanson.  Has to lift him and has had a lot of 
 
            pain today.  Wonders if needs to be seen again or can have 
 
            something for pain.  ...." (Ex. 1, p. 4).  Thus, the first 
 
            indication in her personal physician's records that claimant 
 
            had any back problems from her employment did not occur 
 
            until November 7, 1990, which is the same day that she 
 
            voluntarily quit her job with employer.  This note does not 
 
            indicate that this low back pain occurred on October 23, 
 
            1990.  Nor does this note describe mid back and chest pain.  
 
            
 
                 Dr. Michel saw claimant on the following day, November 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            8, 1990, at which time he noted, "In to check back.  
 
            Complains of pain left posterior rib cage radiates to left 
 
            lower chest.  Worse with movement or coughing, deep 
 
            breaths." (Ex. 4, p. 1).  Dr. Michel also recorded 
 
            tenderness in her lower thoracic spine on November 8, 1990 
 
            (Ex. 2, p. 2)  Thus, it was not until November 8, 1990, that 
 
            claimant complained of symptoms which could be identified as 
 
            mid back and chest pains.  Dr. Michel ordered x-rays taken 
 
            on November 12, 1990, by Glenn Van Roekel, M.D., at the 
 
            Sioux Valley Memorial Hospital.  The chest, thoracic spine 
 
            and intravenous pyelogram were all normal (Ex. 3; Ex. 4, p. 
 
            1).
 
            
 
                 On November 13, 1990, Dr. Michel recorded that the 
 
            x-rays were normal.  He also recorded that claimant wondered 
 
            if it would come under workers' compensation and Dr. Michel 
 
            wrote in his notes that claimant was having chest pain a 
 
            year ago before she was working for this employer (Ex. 4, p. 
 
            1).  Dr. Michel apparently was referring to his office note 
 
            of the previous year on November 13, 1989, when he recorded 
 
            that claimant had pain (tightness) in the lower sternum as 
 
            well as heart palpitations with chest pain and tenderness in 
 
            the upper thoracic spine on percussion (Ex. 4, p. 3).  Dr. 
 
            Michel suspected possible angina pectoris but he also added 
 
            that the patient was very nervous and it could be 
 
            neuromuscular pain or upper GI pain from her previous 
 
            history of ulcers (Ex. 4, p. 2).
 
            
 
                 In a letter to claimant's counsel which Dr. Michel 
 
            wrote on July 5, 1991, the doctor stated "I have not been 
 
            able to correlate her pain very well with the lifting of Al 
 
            Swanson, and she did pass a small kidney stone, which I 
 
            suspect was the cause of her pain." (Ex. 9).  
 
            
 
                 Thus, claimant's personal physician since January 15, 
 
            1988, who was the only physician actively treating claimant 
 
            at the time of this alleged injury, did not attribute 
 
            claimant's pain to a work injury but rather he attributed it 
 
            to a kidney problem.
 
            
 
                 Claimant testified that she transferred her care to M. 
 
            A. Kennedy, D.C., on November 15, 1990, "Because Dr. Michel 
 
            wouldn't do anything.  He wouldn't recognize that I was 
 
            having problems with my upper back and maybe he hadn't -- I 
 
            don't know.  I don't know.  I can't account for --" (Tran., 
 
            p. 53).
 
            
 
                 Claimant contended that Dr. Kennedy looked at the Sioux 
 
            Valley Memorial Hospital x-rays and told her that her back 
 
            was all out of line and that she had a dislocated rib 
 
            (Tran., pp. 53 & 90).  Claimant described her treatment with 
 
            Dr. Kennedy as follows.  
 
            
 
                 "Well, he did some -- he adjusted my back.  He 
 
                 says, my God, lady, you got to be in a lot of 
 
                 pain, which I was, and he adjusted by back in 
 
                 several places and adjusted my neck.  He said that 
 
                 my back was all out of line and that I had a 
 
                 dislocated rib and he showed on the x ray that I 
 
                 took from the hospital that Dr. Michel -- that I 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 insisted on Dr. Michel take and he said that there 
 
                 was space in between the ribs and the back and 
 
                 that I had to be in a lot of pain." (Tran., p. 
 
                 53).
 
            
 
                 Dr. Kennedy completed a doctor's report on January 31, 
 
            1991 in which he stated that his x-ray diagnosis was 
 
            thoracic subluxation, thoracic strain/sprain and thoracic 
 
            pain. (Ex. 5).
 
            
 
                 In a later report dated June 25, 1992, Dr. Kennedy said 
 
            that claimant's x-rays showed that aberrant vertebral 
 
            mechanics of the cervico-thoracic spine were present at 
 
            T6-T7 and T2-T3 (Ex. 14, p. 2).  It cannot be determined 
 
            what x-rays Dr. Kennedy was looking at.  An examination of 
 
            his itemized charges discloses no specific charge for x-rays 
 
            (Ex. C & E).  Therefore he could have been referring to the 
 
            Sioux Valley Memorial Hospital x-rays that he examined 
 
            previously which were interpreted by Dr. Van Roekel.  
 
            However, John J. Dougherty, M.D., testified that he examined 
 
            some x-rays which were chiropractic long x-rays which were 
 
            dated June 18, 1992 (Ex. 26, p. 11).  
 
            
 
                 Dr. Michel's final office note entry on November 27, 
 
            1990 states that claimant told him that Dr. Kennedy told her 
 
            that the Sioux Valley Hospital x-rays demonstrated a 
 
            dislocated rib and two vertebra jammed together (Ex. 4, p. 
 
            1).  Irrespective of whether Dr. Kennedy examined the Sioux 
 
            Valley x-rays or his own x-rays the opinion of Dr. Van 
 
            Roekel, a radiologist is preferred over the opinion of Dr. 
 
            Kennedy.
 
            
 
                 Also on June 25, 1992, Dr. Kennedy diagnosed, "Lower 
 
            cervicothoracic segmental dysfunction.  Cervical leading to 
 
            a cephalgia; the thoracic to a myofacial fibrosis with some 
 
            residuals into the lumbar spine."  (Ex. 14, p. 2).  
 
            
 
                 With respect to the diagnosis of Dr. Kennedy of 
 
            thoracic subluxation and aberrant vertebral mechanics at 
 
            T6-T7 and T2-T3, it is determined that the report of Dr. Van 
 
            Roekel, a radiologist, is preferred over the testimony of 
 
            Dr. Kennedy, a doctor of chiropractic medicine.  Dr. Van 
 
            Roekel found that the chest films and the thoracic spine 
 
            films were normal (Ex. 3).  Rockwell Graphics Systems, Inc. 
 
            v. Prince, 366 N.W.2d 192 (Iowa 1985).  A doctor's expertise 
 
            may accord his testimony greater weight.  Reiland v. Palco 
 
            Inc., 32nd Biennial Report of the Industrial Commissioner 56 
 
            (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 89 (1979).  
 
            
 
                 Dr. Michel's records demonstrate that claimant made no 
 
            complaints of thoracic pain to him at all.  With respect to 
 
            the thoracic tenderness that he discussed and did record on 
 
            November 8, 1990, and the left posterior rib cage pain that 
 
            she complained radiated to the left lower chest, he did 
 
            order x-rays on November 12, 1990.  He said the x-rays were 
 
            normal on November 13, 1990.  Dr. Michel also called 
 
            attention to the fact that "... she was having some chest 
 
            pain a year ago and it was before she was working for him 
 
            [employer]." (Ex. 4, p. 1).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Even though Dr. Kennedy stated "It is my opinion that 
 
            Lillian Nairn has and will have on-going problems associated 
 
            with the injuries she suffered in the 10-23-90 incident." 
 
            (Ex. 14, p. 2), nevertheless, the opinion of Dr. Michel is 
 
            preferred over the opinion of Dr. Kennedy.  Dr. Michel said 
 
            he could not correlate her pain with lifting Al Swanson and 
 
            that he suspected the small kidney stone which she passed at 
 
            that time was the cause of her pain (Ex. 9).  Dr. Michel was 
 
            seeing claimant regularly at the time of the alleged injury 
 
            and made competent notes based on his clinical diagnosis, 
 
            x-rays and his previous knowledge of claimant and her 
 
            condition dating back to January 15, 1988 (Ex. 4).  Dr. 
 
            Michel and his office staff appear to be good historians 
 
            making and initialing and recording all of the events which 
 
            transpired including telephones calls (Ex. 4, pp. 1 & 2).
 
            
 
                 Dr. Michel made no record of an injury caused by 
 
            lifting employer on October 23, 1990, which caused immediate 
 
            mid back pain that raided around to her chest.  On the 
 
            contrary, he indicated (1) that he could not correlate her 
 
            symptoms to lifting employer, (2) that he suspected her pain 
 
            was related to her kidney problems which she was having at 
 
            that time and (3) he further believed that claimant's 
 
            symptoms were quite possibly a recurrence of the chest 
 
            discomfort and upper thoracic spine tenderness that he had 
 
            been treating since November 13, 1989 (Ex. 4, pp. 2 & 3, E. 
 
            9).  Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 
 
            187, 192 (Iowa 1985).
 
            
 
                 Defendants requested an independent medical examination 
 
            from John J. Dougherty, M.D., an orthopedic surgeon on March 
 
            26, 1991, approximately five months after the alleged 
 
            injury.  Dr. Dougherty reported that when he mentioned 
 
            taking x-rays that claimant requested an MRI of her whole 
 
            body (Ex. 26, p. 33).  Dr. Dougherty's physical examination 
 
            was essentially normal.  The x-rays of her dorsal spine were 
 
            essentially normal, except for some minimal degenerative 
 
            changes (Ex. 26, pp. 8, 9, 29 & 30).  Dr. Dougherty 
 
            concluded, "PAIN IN THE DORSAL SPINE, ETIOLOGY? PERHAPS SOME 
 
            FIBROMYALGIA.  RECOMMENDATIONS:  Non. [sic] I think there is 
 
            tremendous psychosomatic overlay here.  Would not feel 
 
            further diagnostic studies are indicated nor do I think she 
 
            sustained any disbility [sic]." (Ex. 6).
 
            
 
                 It should be noted that Dr. Dougherty's findings were 
 
            consistent with Dr. Michel's findings.  Furthermore, since 
 
            Dr. Dougherty questioned the etiology of claimant's 
 
            complaints it cannot be said that he determined that her 
 
            complaints were caused by lifting employer on October 23, 
 
            1990 (Ex. 26, pp. 32-34).  Moreover, he said that he could 
 
            not find anything that would explain her pain (Ex. 26, p. 
 
            35).
 
            
 
                 In a detailed report dated March 29, 1991, Dr. 
 
            Dougherty concluded "In conclusion, based on one examination 
 
            regarding this patient, I really didn't find very much wrong 
 
            with her.  Basically she has some restriction of chest 
 
            expansion which perhaps is caused by some degenerative 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            changes in the back.  I do not feel there are any further 
 
            diagnostic studies indicated on her.  I do feel that a 
 
            considerable amount of her problem is perhaps on a 
 
            psychosomatic basis.  Basically I would feel that she could 
 
            be back working.  I also feel she hasn't sustained any 
 
            permanent impairment." (Ex. 7, p. 2).  
 
            
 
                 Dr. Dougherty testified by deposition on August 12, 
 
            1992.  He related that he is a board certified orthopedic 
 
            surgeon who has been practicing orthopedic medicine for 37 
 
            years and that he has seen thousands of patients.  He is 
 
            admitted to practice in both Iowa and Nebraska (Ex. 26, pp. 
 
            1-5 & 42).  He compared x-rays of December 14, 1987 and June 
 
            18, 1992 and found no significant difference in the dorsal 
 
            spine between the two dates (Ex. 26, pp. 11, 12, 28 & 29).  
 
            He did not find any thoracic radiculitis (Ex. 26, pp. 15, 30 
 
            & 31).  The doctor reviewed the tests he performed and 
 
            testified that if claimant had any residuals from this 
 
            alleged injury they would have developed by the time of his 
 
            examination (Ex. 26, pp. 16 & 33).  
 
            
 
                 Dr. Dougherty found no indication of a dislocated rib 
 
            (Ex. 26, p. 17).  The doctor opined that he did not believe 
 
            that claimant aggravated a previous existing condition (Ex. 
 
            26, p. 36).  He did not find any tender spots or muscle 
 
            spasm (Ex. 26, p. 36).  He reversed his earlier opinion that 
 
            claimant might have fibromyalgia (Ex. 26, p. 37).  Dr. 
 
            Dougherty thought it was significant that claimant could hop 
 
            on one foot and that he percuss her back and that she 
 
            registered no pain (Ex. 26, pp. 7 & 41). 
 
            
 
                 In summary then Dr. Dougherty testified that he did not 
 
            believe that claimant sustained any injury at anytime from 
 
            lifting employer or otherwise to any part of her back.  
 
            
 
                 Claimant testified that she received relief from the 
 
            chiropractic treatments of Dr. Kennedy while she was in the 
 
            office but that her back would stiffen up again on the way 
 
            home (Tran., p. 54).  Because of this pain she consulted Dr. 
 
            Hamm.  The records of Dr. Hamm show that he saw claimant on 
 
            February 28, 1991 and again on March 8, 1991 (Tran., pp. 54 
 
            & 55 and Ex. 10).  Dr. Hamm was also a personal physician of 
 
            claimant, who had seen her since June 28, 1964 (Ex. 10).  
 
            Dr. Hamm has treated claimant for multiple complaints for a 
 
            long period of time.  His records show that she is a nervous 
 
            and anxious person for whom he prescribed a number of 
 
            prescription medications.  Claimant requested cortisone 
 
            shots in her back from Dr. Hamm because the chiropractor 
 
            told her that she needed 15 to 20 cortisone shots (Ex. 10, 
 
            p. 2).  On this occasion he ordered nonsteroid 
 
            anti-inflammatory medication and a sonogram of her gall 
 
            bladder (Tran., p. 94).  Claimant testified that she 
 
            discontinued her treatment with Dr. Hamm because the 
 
            medication did not help, the sonogram and her blood test 
 
            proved negative and the insurance company refused to pay for 
 
            his treatment (Tran., p. 56).  
 
            
 
                 Claimant admitted that two days after she started to 
 
            work for employer she suggested to his son that he should 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            purchase a workers' compensation policy (Tran., p. 83).  
 
            
 
                 Although claimant has not worked since she voluntarily 
 
            quit her employment with employer on November 7, 1990 (she 
 
            was not taken off work by a doctor), she nevertheless has 
 
            not applied for social security disability benefits nor has 
 
            she applied for vocational rehabilitation assistance in 
 
            finding employment (Tran., p. 95).
 
            
 
                 Claimant testified that during her job search the first 
 
            thing that she told prospective employers was that she had a 
 
            bad back (Tran., pp. 96, 102 & 103).  Claimant also 
 
            testified that she had never filed a workers' compensation 
 
            claim prior to this one (Tran., p. 104).  
 
            
 
                 Jay J. Parsow, M.D., a physiatrist, performed an 
 
            independent medical examination on claimant on May 5, 1992, 
 
            at the request of claimant's attorney.  Among other things 
 
            Dr. Parsow found (1) thoracic spondylosis, probably 
 
            preexisting, aggravated by injury, (2) possible thoracic 
 
            radiculitis T7/8 versus costovertebral joint dysfunction, 
 
            probably pre-existing, asymptomatic, aggravated by injury, 
 
            (3) history of possible fibromyalgia, (4) possible 
 
            psychosocial disorder and (5) mechanical back pain with 
 
            facet irritation, probably aggravated by injury.  His other 
 
            five findings are not related to the injury described by 
 
            claimant in this case (Ex. 11).  Dr. Parsow examined 
 
            claimant again on June 25, 1992 and gave a detailed 
 
            impairment rating and prognosis that claimant was limited to 
 
            sedentary work (Ex. 15).  
 
            
 
                 Some of the difficulties involved in accepting Dr. 
 
            Parsow's evaluation are as follows:  (1) He is a one-time 
 
            evaluator. (2)  He had no personal experience with 
 
            claimant's long and extensive medical history. (3) His 
 
            evaluation goes far beyond claimant's original complaints of 
 
            mid back and chest pain. (4) His evaluation includes the 
 
            cervical and lumbar areas as well as her thoracic area. (5) 
 
            His evaluation was performed at the request of claimant's 
 
            attorney to produce evidence for this hearing.
 
            
 
                 Dr. Michel's notes and report are preferred over the 
 
            one-time evaluation of Dr. Parsow because he was a treating 
 
            physician and he was treating claimant both before, during 
 
            and immediately after this alleged injury.  As a treating 
 
            physician he was responsible for the success or failure of 
 
            his treatment.  Likewise, Dr. Dougherty's evaluation is 
 
            preferred over the evaluation of Dr. Parsow, even though he 
 
            too is an independent evaluator, because it comports best 
 
            with the records of Dr. Michel and Dr. Parker whose records 
 
            and reports were prepared contemporaneously with the date of 
 
            the alleged injury.  Many of the complaints that claimant 
 
            presented to Dr. Kennedy and Dr. Parsow, she had registered 
 
            earlier in 1987 to Dr. Erwin who is in the same office as 
 
            Dr. Kennedy (Ex. 1).
 
            
 
                 Claimant acknowledged that she did see Dr. Erwin, a 
 
            doctor of chiropractic medicine, who is in the same office 
 
            as Dr. Kennedy, on December 14, 1987 (Tran., pp. 35 & 36).  
 
            The case history form which claimant completed for Dr. Erwin 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            shows that she had the following complaints or symptoms (1) 
 
            headache, (2) pain in neck, neck pain with movement, muscle 
 
            spasms in the neck and popping sounds in the neck, (3) pain 
 
            in the left shoulder, tension in shoulders and pinched nerve 
 
            in the left shoulder, (4) pain in the upper arm and pain in 
 
            the forearm, (5) nervous stomach, (6) low back pain worse 
 
            when working, lifting and bending, (7) pain down both legs 
 
            and (8) nervousness, irritableness, depression, fatigue, 
 
            general run-down feeling and loss of sleep.  Claimant did 
 
            not indicate any mid back pain on this form (Ex. 1, Tran. 
 
            pp. 74-77).  Claimant testified that she saw Dr. Erwin for 
 
            her left shoulder and that this condition was not 
 
            work-related and that she only saw Dr. Erwin two times 
 
            (Tran., pp. 34 & 35).
 
            
 
                 Wherefore, based upon the foregoing evidence and all 
 
            the evidence introduced into the record in this case it is 
 
            determined that claimant did not sustain an injury on 
 
            October 23, 1990, to her thoracic spine and chest which 
 
            arose out of and in the course of employment with employer.  
 
            More specifically (1) the incident was not witnessed, (2) 
 
            claimant did not establish that she reported it to employer, 
 
            the cook, or the housekeeper who are living or working in 
 
            the same household, (3) although claimant contended the 
 
            injury happened on October 23, 1990, there was conflicting 
 
            evidence that it may have occurred and that she first 
 
            reported it to employer's son and Dr. Michel on November 7, 
 
            1990, (4) although she was communicating with Dr. Michel 
 
            regularly at the time of this injury he makes no mention of 
 
            a work-related incident until she voluntarily quit her job 
 
            on November 7, 1990, (5) on November 7, 1990, she reported 
 
            lumbar pain rather than thoracic back pain, (6) Dr. Michel 
 
            first records left posterior rib cage  pain radiating to the 
 
            lower left chest on November 8, 1990 and he did not relate 
 
            it to a lifting incident for employer on October 23, 1990, 
 
            (7) Dr. Michel testified that claimant's pain was connected 
 
            with her kidney problems that she was having at this time, 
 
            (8) Dr. Michel further suggested that this might be a 
 
            recurrence of the chest tightness and thoracic tenderness 
 
            that she had a year earlier on November 13, 1989, which was 
 
            suspected angina pectoris and for which he was regularly 
 
            prescribing Nitroglycerin pills right up to October 19, 
 
            1990, four days before the alleged incident on October 23, 
 
            1990, (9) the nurse's notes at the Sioux Valley Memorial 
 
            Hospital and Dr. Parker's notes on November 24, 1990, make 
 
            absolutely no mention of a lifting incident for employer on 
 
            October 23, 1990, (10) Dr. Dougherty, who examined claimant 
 
            five months after the alleged injury, found only mild 
 
            degenerative disc disease and did not think that claimant 
 
            had sustained an injury to any portion of her back at any 
 
            time, (11) that the testimony of Dr. Kennedy that claimant 
 
            had thoracic subluxation and cervico thoracic segmental 
 
            dysfunction is controverted by the x-rays and evidence from 
 
            Dr. Michel, Dr. Parker and Dr. Dougherty, (12) that the 
 
            evaluation of Dr. Parsow is too remote in time and 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            nonprobative in substance when compared to all of the other 
 
            evidence in this case, (13) even though claimant testified 
 
            that she sustained the injury October 23, 1990 and called 
 
            the doctor's office on that date the written notes of the 
 
            doctor and one other person in his office do not record a 
 
            call on October 23, 1990, but rather show that claimant 
 
            called the doctor for a stress test on October 22, 1990 for 
 
            pain in the left side which had persisted since last week. 
 
            
 
                 In conclusion, it is determined as a matter of fact 
 
            that claimant did not sustain an injury to her mid back and 
 
            chest on October 23, 1990 which arose out of and in the 
 
            course of her employment with employer from lifting employer 
 
            on that date.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant did not sustain the burden of proof by 
 
            preponderance of the evidence that she sustained an injury 
 
            to her mid back and chest on October 23, 1990, which arose 
 
            out of and in the course of her employment with employer 
 
            from lifting him on that date.  Iowa Code section 85.3(1); 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 In view of the foregoing findings all other issues in 
 
            the case become moot.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no amounts are due from defendants to claimant.
 
            
 
                 That the costs of this action are charged to claimant, 
 
            except that defendants are to pay for the cost of the 
 
            attendance of the court reporter at hearing and the 
 
            transcript of hearing.  Iowa Code sections 86.19(1) and 
 
            86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency.  Rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis M. McElwain
 
            Attorney at Law
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            632-640 Badgerow Bldg.
 
            P.O. Box 1194
 
            Sioux City, IA  51102
 
            
 
            Ms. Judith Ann Higgs 
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, IA  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1100
 
                      Filed February 4, 1993
 
                      Walter M. McManus, Jr.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LILLIAN NAIRN, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 971064
 
            ALBIN SWANSON, :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE FARM INSURANCE CO.,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1100
 
            Claimant did not prove an injury arising out of and in the 
 
            course of employment with employer.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROMAN LUNA,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 971311
 
                                          :                1034572
 
            MEREDITH/BURDA,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Roman Luna seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against employer Meredith/Burda and its insurance carrier, 
 
            CNA Insurance Companies.  Mr. Luna asserts that he sustained 
 
            injury as the result of exposure to toxic substances in 1989 
 
            (toluene) and 1990 (blanket wash and UV curable coating).  
 
            He asserts a single injury date of September 18, 1989, when 
 
            he first was taken off work at the behest of a treating 
 
            physician.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa on 
 
            September 23, 1992.  Testimony was received from claimant, 
 
            Pamela Luna, Vernon Crawford, Merle Short and David 
 
            Hendricks.  Joint exhibits 1-2, 4-17 and 23-29 were received 
 
            into evidence along with defendants' exhibit A.  Mr. Luna's 
 
            offer of claimant's exhibits A and B was taken under 
 
            advisement with respect to defense objections.  Those 
 
            objections are hereby overruled and the exhibits are 
 
            received into evidence.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship, that any permanent disability is an 
 
            industrial disability to the body as a whole, to the rate of 
 
            compensation ($276.16 per week) and agree that all medical 
 
            costs were paid by an non-occupational group insurance plan 
 
            and that defendants are entitled to certain credit for sick 
 
            pay/disability benefits under Iowa Code section 85.38(2).
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained injury arising out of 
 
            and in the course of his employment on September 18, 1989;
 
            
 
                 2.  Whether such injury caused either temporary or 
 
            permanent disability;
 
            
 
                 3.  The extent of temporary total disability or healing 
 
            period; and,
 
            
 
                 4.  The extent and appropriate commencement date of 
 
            permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Roman Luna, 43 years of age at hearing, was employed by 
 
            Meredith/Burda and a successor corporation for some 17 
 
            years.  Meredith/Burda is a large printing operation.  
 
            Claimant took work as a packer (of printed materials) in the 
 
            pressroom in 1975, remaining there until 1986.  In 1986, he 
 
            began an apprenticeship designed to lead to journeyman 
 
            status as a pressman.
 
            
 
                 In 1988 and early 1989, claimant worked in the cylinder 
 
            making or plate department, work that involved operating a 
 
            rotogravure press (a process in which an inked impression is 
 
            produced by a rotary press).  
 
            
 
                 Unlike offset presses, the rotogravure process entails 
 
            use of the chemical solvent toluene.  This solvent is 
 
            blended into the ink itself and is also used in greater 
 
            quantities to clean the press at the end of each run.  A wad 
 
            of rags is saturated with toluene and used to clean the 
 
            printing plate, a process requiring roughly fifteen to 
 
            twenty minutes.  On average, this is done perhaps three 
 
            times a day, but on occasion up to as many as five or six.  
 
            On rare occasion there is a large ink spill, which 
 
            necessitates substantial use of toluene for cleanup.  This 
 
            might occur only two or three times per year.
 
            
 
                 Toluene is a toxic substance.  It is used in many 
 
            industrial applications and is contained in paint.  
 
            Industrial exposure is typically of a long-term or chronic 
 
            nature.  The substance is also notorious for being abused by 
 
            "glue sniffers," a process involving massive exposure for 
 
            the purpose of attaining a state of euphoria described in 
 
            the record as similar to alcohol intoxication.
 
            
 
                 Toluene has a distinctive odor and is capable of being 
 
            sensed by humans in remarkably small concentrations.  
 
            Toluene is fat-soluble and volatile, meaning that it easily 
 
            evaporates from a liquid into a vapor.  It is typically 
 
            absorbed into the human body through respiration, whereupon 
 
            it has an affinity for fat tissue, especially in and about 
 
            the central nervous system.  According to S. G. Jejurikar, 
 
            M.D., (who testified by deposition on September 9, 1992), 
 
            concentration of toluene vapors at 200-500 parts per million 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            (ppm) for several weeks produces symptoms of headaches, 
 
            nausea, lassitude, impairment of coordination and loss of 
 
            memory.  Vapor concentration of 500-1500 ppm causes similar 
 
            but more severe effects.  Concentration of 10,000-30,000 ppm 
 
            may cause mental confusion, drunkenness and unconsciousness 
 
            within a few minutes.  Indeed, coma and death are not 
 
            unknown in cases of extremely high exposure, such as may be 
 
            the case with glue sniffers.
 
            
 
                 According to claimant and his co-worker, James Goforth, 
 
            industrial exposure at the Meredith/Burda plant would 
 
            occasionally lead to symptoms of lightheadness, dizziness or 
 
            uncoordination, similar to the effects of ethanol.  (In this 
 
            decision, "symptoms" refer to physical effects reported as 
 
            experienced by the patient, while "signs" refer to physical 
 
            effects objectively perceptible to an examining physician).
 
            
 
                 According to claimant's testimony, he began developing 
 
            symptoms of fatigue, loss of appetite and hallucinations in 
 
            approximately March 1989.  His wife, Pamela Luna, confirmed 
 
            certain behavioral changes in early 1989, particularly 
 
            confusion.  She indicated that Mr. Luna had problems driving 
 
            and was "very different" during two business trips in 
 
            approximately May or June of that year.  Ms. Luna also 
 
            testified that claimant developed phobias, anxiety, insomnia 
 
            and increased confusion between July and September 1989.
 
            
 
                 On May 26, 1989, claimant underwent a routine physical 
 
            at the hands of his family physician, Darwin Schossow, D.O.  
 
            Curiously, claimant did not report these alarming symptoms 
 
            to Dr. Schossow, complaining instead of a sore throat (and 
 
            an allergic reaction to medication prescribed by Dr. Robert 
 
            Conner for this problem) an itchy nose, cough in the morning 
 
            and occasional wheezing.  Taking this history, Dr. Schossow 
 
            discovered that claimant was routinely exposed to toluene, 
 
            and thereupon ordered blood tests to rule out a metabolic 
 
            disorder.
 
            
 
                 Blood tests on May 27 revealed elevated cholesterol and 
 
            glucose levels (previous blood tests on December 12, 1987 
 
            and February 23, 1988 had also indicated elevated 
 
            cholesterol and glucose) and a second test on June 19 also 
 
            indicated a high cholesterol level.  Both 1989 blood tests 
 
            also revealed elevated levels of two liver enzymes: serum 
 
            glutamic oxalacetic transaminase (SGOT) and serum glutamic 
 
            pyruvic transaminase (SGPT).
 
            
 
                 SGOT (now more commonly known as aspartate transferase, 
 
            or AST) is commonly increased in various liver disorders, 
 
            and in myocardial infarction, circulatory congestion, muscle 
 
            injury, central nervous system disease and other nonhepatic 
 
            disorders.  The test is nonspecific, but very high levels 
 
            may be suggestive of acute viral or toxic hepatitis.  
 
            According to Dr. Jejurikar, SGPT (now more commonly known as 
 
            alanine transferase, or ALT) is more specific for liver 
 
            disease than is SGOT.
 
            
 
                 On July 27, 1989, Dr. Schossow recommended that Mr. 
 
            Luna be removed from his present work environment for a 
 
            period of 30 days, following which liver enzymes studies 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            should be repeated.  Claimant was accordingly transferred to 
 
            the pressroom (where he had previously worked for some 14 
 
            years), following which a blood test on September 5, 1989 
 
            showed normal levels of SGOT and SGPT.  Repeat testing on 
 
            August 3, 1990 and November 10, 1990 again demonstrated 
 
            normal levels of both enzymes.
 
            
 
                 At about the same time, Dr. Schossow referred claimant 
 
            to a gastroenterologist, William J. Semon, D.O.  On July 19, 
 
            Dr. Semon reported that claimant's abnormal liver studies 
 
            were associated with some mild abdominal pain localized to 
 
            the left side of the abdomen which claimant described as a 
 
            burning or dull discomfort, and at times stinging.  The 
 
            abdominal pain was intermittent in nature and was relieved 
 
            with eating, although it could be precipitated by spicy 
 
            foods, greasy foods or even dry foods.  Claimant also 
 
            reported daily nausea without vomiting and occasional 
 
            heartburn.
 
            
 
                 On July 25, 1989, Dr. Semon recommended an empiric 
 
            trial of the drug Tagamet, upon his impression that 
 
            abdominal pain was most likely due to gastroesophageal 
 
            reflux with chronic air swallowing.  But on August 7, Dr. 
 
            Semon advised claimant to discontinue the drug so as not to 
 
            "muddy the waters," as Tagamet has been shown to cause 
 
            abnormal liver studies.  In their brief, defendants make a 
 
            great deal of this advice, arguing that Tagamet could have 
 
            caused the original enzyme imbalance, and that the 
 
            subsequent normal blood tests could easily have been due to 
 
            the discontinuation of Tagamet, rather than removal from 
 
            toluene exposure.  This argument is untenable.  Indeed, it 
 
            is dangerously misleading, since the abnormal enzyme levels 
 
            were discovered prior to when claimant even commenced taking 
 
            Tagamet.
 
            
 
                 On September 12, 1989, Dr. Semon wrote that claimant's 
 
            improvement in liver studies following removal from "high 
 
            levels of toluene" suggested that toluene "may have, in 
 
            fact, been responsible for the development of these abnormal 
 
            liver studies."  Dr. Semon further recommended that claimant 
 
            continue to abstain from alcohol and if possible, seek a 
 
            work environment in which none or only low levels of toluene 
 
            were present.
 
            
 
                 Based on liver enzymes returning to normal following a 
 
            30 day removal from toluene, Dr. Schossow also concluded 
 
            that the elevated liver enzymes were causally related to 
 
            toluene exposure and felt claimant should avoid prolonged 
 
            exposure to toluene at high levels.  He further suggested 
 
            that claimant seek employment in a location where 
 
            environmental exposure to any toxins was minimal.  
 
            
 
                 Dr. Schossow apparently did not recommend abstention 
 
            from alcohol.  This may be due to the disturbing likelihood 
 
            that claimant gave his family doctor a false history of 
 
            alcohol abuse.  On July 6, 1989, Dr. Schossow writes:
 
            
 
                 He does admit to a remote history of heavy alcohol 
 
                 use but states he has not consumed significant 
 
                 amounts of alcohol in several years.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 In fact, claimant's wife testified that claimant got 
 
            drunk on an average of once a week for most of their 22-year 
 
            married life.  She and claimant both testified that claimant 
 
            last became drunk at Thanksgiving, 1988, or roughly six 
 
            months before his physical with Dr. Schossow.  Claimant's 
 
            use of alcohol is quite significant, since, as shall be 
 
            seen, alcohol abuse is a likelier cause of increased SGPT 
 
            and SGOT levels than is toluene exposure.
 
            
 
                 In any event, Mr. Luna complains that he continued to 
 
            suffer  symptomatology despite the return to normal of his 
 
            liver enzyme levels.  In testimony, he described his problem 
 
            as an inability to "keep everything together."  He next 
 
            sought treatment from Mark Thoman, M.D., a board certified 
 
            physician both in pediatrics and clinical toxicology.  Dr. 
 
            Thoman testified by deposition on August 25, 1992.
 
            
 
                 Although claimant first saw Dr. Thoman on September 18, 
 
            1989, he apparently filled out a lengthy questionnaire as to 
 
            his medical history on September 11.  Despite answering a 
 
            question requesting whether he was now fully recovered as 
 
            "unknown," he listed the following symptoms: lightheadness, 
 
            headache, blurred vision, dry mouth, diarrhea, tingling 
 
            feeling, numbness in the head, muscle soreness everywhere, 
 
            dizziness, bad taste in mouth, nausea, sleepiness, 
 
            difficulty in swallowing or knot in the throat, weakness, 
 
            ringing in ears, abdominal pain and inability to catch his 
 
            breath.  Some of the history claimant gave Dr. Thoman is 
 
            apparently self-contradictory.  For example, he answered 
 
            that he actually got only four hours sleep per night, while 
 
            also answering "true" to the statement: "I wake up fresh and 
 
            rested most mornings," and "false" to the statement: "night 
 
            sleep is fitful and disturbed."
 
            
 
                 Claimant also answered "true" to the following 
 
            statement: "I've never felt better in my life than I do 
 
            now."
 
            
 
                 Although Mr. Luna only went to school through the 
 
            eleventh grade, he has earned a GED and impressed this 
 
            observer as being of at least average intelligence.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            September 11, 1989 is also significant in that claimant saw 
 
            the company doctor, Robert Shires, M.D., on that date.  Dr. 
 
            Shires testified:
 
            
 
                    Q.  Now, when he came to see you in September 
 
                 of 1989 did he report any symptoms to you other 
 
                 than elevated liver enzymes?
 
            
 
                    A.  Not that I am aware of.
 
            
 
                    Q.  Could he have reported other --
 
            
 
                    A.  Excuse me.  He did have.  He was packing 
 
                 books, and he had a sore left wrist.
 
            
 
                    Q.  In September of 1989?
 
            
 
                    A.  September of 1989 that same visit his 
 
                 problem he was presenting the letter about toluene 
 
                 exposure, and he had the week before developed a 
 
                 sore wrist while he was packing some books and 
 
                 looked like he had a mild tenosynovitis of his 
 
                 wrist.  That was his problem he presented on that 
 
                 day.
 
            
 
                    Q.  Anything else besides that?
 
            
 
                    A.  Not that I recall.
 
            
 
                    Q.  If he had reported other symptoms or 
 
                 problems to you, would it have been your practice 
 
                 to include them in your notes?
 
            
 
                    A.  I usually write as many things down as I 
 
                 can recall and feel are pertinent.
 
            
 
            (Shires Deposition, pp. 8-9).
 
            
 
                 The oral history taken by Dr. Thoman on September 18 
 
            was of respiratory irritation, a skin rash and liver enzyme 
 
            elevation.  Dr. Thoman testified that claimant had a tight 
 
            throat from time to time, difficulty breathing with 
 
            considerable coughing and esophageal hernia, unrelated.
 
            
 
                 Although claimant had already been removed from the 
 
            plate department and direct contact with toluene, Dr. Thoman 
 
            elected to take him off work entirely.  He testified:
 
            
 
                    A.  Generally there is.  In most cases, we take 
 
                 them out until we can complete our evaluation.  We 
 
                 like to err on the side of caution.  If there is a 
 
                 potential of chemical exposure that might be 
 
                 causing some problems, the first thing you do is 
 
                 take them away from the exposure for two reasons.  
 
                 First of all, if it is, you want to see if it gets 
 
                 better when they are away from it.  Secondly, you 
 
                 don't want to get worse because you haven't acted 
 
                 on it.
 
            
 
                    Q.  I notice in your notes of 9-18 you 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 postponed the return to work, is that right, at 
 
                 this point?
 
            
 
                    A.  That's right, until we could kind of sort 
 
                 everything out and see how much effect he was 
 
                 having from his exposure.
 
            
 
                    Q.  Then I notice in your note of 10-31 you 
 
                 returned him to work at that time; is that right?
 
            
 
                    A.  Right.
 
            
 
                    Q.  What was the reason for keeping him away 
 
                 from the work at that time?
 
            
 
                    A.  To decrease the chance of his having 
 
                 further damage if that particular solvent was the 
 
                 cause of his problem; and, secondly, to see if he 
 
                 got better without being around the chemical in 
 
                 question.
 
            
 
                    Q.  What occurred when you kept him out?  What 
 
                 was your conclusion you reached?
 
            
 
                    A. He improved.  His liver enzymes decreased.  
 
                 He did have some symptoms, but they were 
 
                 essentially improved once he had been away from it 
 
                 for some time.
 
            
 
            (Thoman Deposition, Pages 14-16).
 
            
 
                 Dr. Thoman prepared a supplementary report to defendant 
 
            CNA on October 16.  His diagnosis was of elevated liver 
 
            enzymes secondary to toluene exposure.  Asked if claimant 
 
            was still disabled, Dr. Thoman answered; "he is currently 
 
            disabled from working around toluene + like solvents."  As 
 
            to when claimant could return to work, Dr. Thoman specified, 
 
            "when a suitable environment in the plant is found."
 
            
 
                 On October 25, 1989, Dr. Thoman toured the 
 
            Meredith/Burda plant so as to study the various working 
 
            conditions in order to make recommendations for claimant's 
 
            continued employment.  On October 31, he wrote that based on 
 
            prior health and work history claimant most likely had a 
 
            sensitization to chemicals and their noxious fumes, and 
 
            could for that reason no longer work in an environment with 
 
            significant concentrations of volatile petrochemicals.  
 
            Further, Dr. Thoman wrote that claimant's liver enzymes had 
 
            stabilized at present and that "therefore" he was released 
 
            to return to work in a work environment with low to zero 
 
            concentration of those petrochemicals.  Dr. Thoman further 
 
            recommended regular monitoring of blood chemistry.
 
            
 
                 There is wide diversity of highly qualified medical 
 
            opinion as to whether claimant's reported symptomatology and 
 
            the objective sign of increased liver enzymes bear a causal 
 
            relationship to toluene exposure.  The existence or 
 
            nonexistence of that causal relationship is the key issue in 
 
            this litigation.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 As noted, Dr. Thoman is a board certified clinical 
 
            toxicologist.  He is a highly qualified physician whose 
 
            opinions have frequently been received in toxic exposure 
 
            claims litigated before this agency.  Dr. Thoman believes 
 
            that a causal nexus does exist between claimant's symptoms 
 
            and toluene exposure.  Asked to list the symptoms or 
 
            problems caused by toluene, he testified:
 
            
 
                    A.  Upper and lower respiratory irritation.  He 
 
                 had some headache.  He had some dermatological 
 
                 changes.  He had some hepatic enzyme changes at 
 
                 the time.  SGOT and SPTP were elevated.  I think 
 
                 those were the primary ones he presented with, and 
 
                 then some emotional problems that certainly go 
 
                 along with this situation.
 
            
 
            (Thoman Deposition, p. 18).
 
            
 
                 Dr. Thoman was further asked whether his suggested 
 
            restrictions against exposure to volatile petrochemicals 
 
            were permanent in nature:
 
            
 
                    A.  Generally they are.  Over time you can get 
 
                 a pretty good idea, but over months, continuing 
 
                 into years, if they continue to have problems with 
 
                 reexposures to related chemicals, then it's like 
 
                 being allergic to penicillin.  Once you have an 
 
                 allergic reaction -- and I'm not indicating this 
 
                 is an IGE or typical allergic reaction, but it's 
 
                 similar to the allergic reaction.  Once you're 
 
                 allergic, you can't have any penicillin in the 
 
                 future.  Once you become sensitized, quotes, you 
 
                 have to be careful about certain inhalants of 
 
                 certain types in the future.
 
            
 
                    Q.  Was the exposure he then had, did that then 
 
                 make him more sensitized to having further 
 
                 exposures under, say, lesser conditions, or what 
 
                 happened?
 
            
 
                    A.  What happens is if he has the same exposure 
 
                 to the same chemical or closely related, which is 
 
                 an aromatic hydrocarbon, which is like benzenes or 
 
                 toluene or toluol, this could trigger off a number 
 
                 of symptoms, the headache, cause the rash to 
 
                 recur, upper and lower respiratory tract 
 
                 irritation, wheezing and so on.
 
            
 
                    Some of the related compounds, particularly 
 
                 hydrocarbons, and I think subsequently he had 
 
                 trouble with hair spray, aftershave, and so forth.  
 
                 Once they have a reaction, then they are often 
 
                 sensitive to other chemicals.  So you have to kind 
 
                 of alert them that there may be certain areas or 
 
                 certain situations in which they do not want to 
 
                 go, because it may cause some old symptoms to come 
 
                 back.
 
            
 
            (Thoman Deposition, pp. 26-27).
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 As will be discussed later in this decision, Mr. Luna 
 
            developed certain symptoms in late 1990 which he attributes 
 
            to exposure to other chemicals.  Dr. Thoman believes that 
 
            toluene exposure increased claimant's sensitivity to other 
 
            chemicals and ties those symptoms to the original exposure.  
 
            The mechanism is as set forth above.
 
            
 
                 Here, a few words about Dr. Thoman are in order.  Under 
 
            Iowa Code section 17A.14(5), this agency's experience, 
 
            technical competence, and specialized knowledge may be 
 
            utilized in the evaluation of evidence.  As noted above, Dr. 
 
            Thoman has frequently been called upon to offer expert 
 
            opinion in litigation before this agency.  His opinion has 
 
            sometimes been accepted, but sometimes not.  In particular, 
 
            this deputy recognized in Peck v. Merrill Mfg. Co., Number 
 
            894350 (Arb. Dec., February 26, 1991) that Dr. Thoman's 
 
            views on the subject of chemical sensitization are similar 
 
            to that of devotees of the theory of "clinical ecology."  
 
            This is a controversial subject in medical science.  Some 
 
            such practitioners believe in environmental illnesses whose 
 
            victims may become allergic or sensitized to practically all 
 
            chemicals and substances not found in nature.  To date, the 
 
            American Medical Association has not accepted these 
 
            theories.  In any event, it seems fair to say that 
 
            non-allergic chemical sensitization is a theory somewhat 
 
            outside the mainstream of current medical thought.
 
            
 
                 An altogether different opinion on the causation issue 
 
            was received from Dr. Jejurikar.  Dr. Jejurikar is board 
 
            certified in forensic toxicology and has been the state 
 
            toxicologist for the state of Minnesota for roughly 22 
 
            years.  Asked to distinguish between a clinical toxicologist 
 
            and a forensic toxicologist, he indicated that a forensic 
 
            toxicologist would be more involved in studying and dealing 
 
            with the effects of a given chemical or drug on the human 
 
            body, while a clinical toxicologist would be more involved 
 
            in actively treating patients on a direct care basis.
 
            
 
                 Dr. Jejurikar has never seen claimant.  However, he has 
 
            devoted substantial time to the study of Mr. Luna's medical 
 
            records and the medical literature relating to toluene 
 
            exposure.  He testified to spending perhaps between 50 and 
 
            60 hours on the case prior to his deposition testimony.  
 
            (Since Dr. Jejurikar was paid $75 per hour, he has clearly 
 
            profited by his work on this case.  Nonetheless, a reading 
 
            of his report and deposition testimony does not leave the 
 
            impression that he is a "hired gun" offering his opinion for 
 
            sale to the highest bidder.  Rather, his opinions are 
 
            consistent with the extensive medical literature he cites).
 
            
 
                 Dr. Jejurikar based his opinions on the assumption that 
 
            claimant had some exposure to toluene.  In his brief, Mr. 
 
            Luna criticizes this opinion as based on a mistaken belief 
 
            that claimant had low to zero exposure because he invariably 
 
            wore a charcoal-filtered respirator.  This is a misstatement 
 
            of the doctor's testimony.  In fact, while claimant wore his 
 
            respirator more frequently than anyone else (for instance, 
 
            he was the only one to consistently wear his respirator 
 
            while the press was running), he definitely had toluene 
 
            exposure.  Defendants make much of the technologically 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            advanced exhaust system and claim that toluene exposure was 
 
            practically nonexistent.  Yet, in 1991, this same employer 
 
            was fined $5,000 under the Iowa Occupational Safety and 
 
            Health Act (by the Iowa Division of Labor, a sister agency) 
 
            for allowing excessive exposure to toluene both in the roto 
 
            press area and proof press area.  
 
            
 
                 Dr. Jejurikar testified:
 
            
 
                    A.  As far as the toluene is concerned, there 
 
                 should not be really any difference how much the 
 
                 exposure is.
 
            
 
                    Q.  Why is that?
 
            
 
                    A.  Because all the studies have shown that 
 
                 there is no relation between the amount of toluene 
 
                 exposure and any relation to elevation in the 
 
                 enzymes such as SGPT, SGPT.
 
            
 
            (Jejurikar Deposition, p. 13).
 
            
 
                 And:
 
            
 
                    A.  Based on all the studies I have seen, there 
 
                 is no relation of elevation in enzymes in the 
 
                 liver, such as SGOT or SGPT, and the concentration 
 
                 of toluene exposure, and therefore in my mind the 
 
                 elevation which was caused in Mr. Luna's case is 
 
                 really not due to toluene but could be due to 
 
                 several other reasons.
 
            
 
                    Q.  Would you tell us what those other reasons 
 
                 are and where you identified them as potential 
 
                 causes.
 
            
 
                     A.  As I indicated in my report in some 
 
                 references, people who are obese, people who are 
 
                 diabetic, people who use heavy amounts of alcohol 
 
                 also have a rise or elevation in their liver 
 
                 enzymes.  Therefore not knowing exactly where it 
 
                 is coming from, whether it is coming from alcohol 
 
                 or whether it's coming from obesity, you really 
 
                 don't know -- it could be due to one of the things 
 
                 I mentioned.  It could be due to all of the three, 
 
                 such as diabetes, obesity, or heavy use of alcohol 
 
                 can cause elevation in liver enzymes.
 
            
 
                    Q.  Is Mr. Luna overweight?
 
            
 
                    A.  That is correct.
 
            
 
                    Q.  Where did you get that information?
 
            
 
                    A.  From his medical records.  Time and time 
 
                 again he was asked to lose a few pounds since he 
 
                 was diagnosed as obese.
 
            
 
                    Q.  And is he diabetic?
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                    A.  He had an elevation in glucose in quite a 
 
                 few tests plus he also had a history of family 
 
                 diabetes.
 
            
 
                    Q.  Does he have a history of past alcohol 
 
                 consumption?
 
            
 
                    A.  That is correct.
 
            
 
            (Jejurikar Deposition, pp. 14-15).
 
            
 
                 Dr. Jejurikar further testified that if the elevated 
 
            enzymes had been caused by toluene, he would also anticipate 
 
            seeing elevation in certain other enzymes, such as alkaline 
 
            phosphatase.
 
            
 
                 Dr. Jejurikar found no impairment of Mr. Luna which he 
 
            could scientifically relate to toluene exposure.  He further 
 
            testified that exposure to toluene does not caused increased 
 
            sensitivity either to toluene itself or other chemicals.
 
            
 
                 The record contains numerous items of medical 
 
            literature.  A review of this literature indicates there is 
 
            no significant difference in the prevalence of abnormal SGOT 
 
            and SGPT levels in solvent-exposed workers compared to a 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            control group, that toluene exposure has not been shown to 
 
            lead to liver damage, that a fatty liver associated with 
 
            obesity, diabetes or alcoholism can complicate liver 
 
            function tests and that heavy drinking is a more profound 
 
            cause of abnormal liver function than is exposure to 
 
            solvents such as toluene.
 
            
 
                 Opinions were also received from Paul From, M.D.  Dr. 
 
            From is a board certified internist who testified by 
 
            deposition on September 2, 1992.
 
            
 
                 Like Dr. Jejurikar, Dr. From has not actually examined 
 
            claimant.  His opinions are based on medical records and 
 
            study of the literature.  While Dr. From is not board 
 
            certified in either clinical or forensic toxicology, that 
 
            science is a part of his practice as an internist, and he 
 
            has personally treated patients exposed to toluene.
 
            
 
                 Dr. From did not see a causal nexus between claimant's 
 
            liver enzymes abnormalities and toluene exposure.  
 
            Similarly, he believed that claimant had sustained no 
 
            permanent impairment attributable to such exposure, pointing 
 
            out that any injury to the liver would have been of a 
 
            transient nature.  And, he did not believe that exposure to 
 
            toluene would increase claimant's sensitivity to subsequent 
 
            exposure.
 
            
 
                 After Dr. Thoman released claimant to return to work on 
 
            October 31, 1989, he was placed permanently in the press 
 
            room as a packer.  In approximately November 1990, he 
 
            developed additional symptomatology which he ascribes to 
 
            exposure to blanket wash (a mixture of aliphatic 
 
            hydrocarbons alone or with butyl cellosolve) and ultraviolet 
 
            curable coating (which consists of monomeric multifunctional 
 
            acrylates and acrylate esters).  High concentrations of 
 
            blanket wash may produce irritation to the skin, eyes and 
 
            respiratory tract and central nervous system affects such as 
 
            headaches, dizziness, ataxia, anesthetic stupor and 
 
            unconsciousness; or, if butyl cellosolve is contained, lack 
 
            of coordination, nausea, and general weakness.  UV 
 
            ultraviolet curable coating could cause irritation of the 
 
            eyes, skin and respiratory tract.
 
            
 
                 Claimant saw Dr. Robert Conner on November 9 and 
 
            November 16, 1990.  Complaints were made of anxiety, stress 
 
            and chronic headaches.  Dr. Conner's assessment was of 
 
            uncontrolled hypertension (high blood pressure) and probable 
 
            chemical intoxication.
 
            
 
                 Claimant thereupon returned to Dr. Thoman on November 
 
            20, 1990.  He prepared a letter on that date stating that 
 
            around October 1990, he started noticing changes including 
 
            uneasiness, uncertainty and chills along with memory loss 
 
            and inability to concentrate.  He further complained of an 
 
            increase of hair growth all over the body, especially on the 
 
            ears, along with insomnia, impotence, headaches, severe mood 
 
            swings, depression, hypertension and fear of losing control.  
 
            He noted that Dr. Conner had taken him off work for two 
 
            months with instructions to avoid chemical exposure.  Dr. 
 
            Thoman did not return claimant to work until January 25, 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            1991.  His diagnosis was of anxiety and physiological 
 
            manifestations secondary to previous on the job chemical 
 
            exposure.
 
            
 
                 Asked in his deposition how the secondary complaints 
 
            related to the original toluene exposure, Dr. Thoman 
 
            testified:
 
            
 
                    A.  The particular chemical that he was 
 
                 originally exposed to was an aromatic hydrocarbon.  
 
                 This is not the same category, but close enough 
 
                 that if an adequate dosage could be encountered by 
 
                 an individual, it could trigger off primarily a 
 
                 toxic exposure, causing the signs and symptoms he 
 
                 complained of, but it could also trigger off a 
 
                 certain stress reaction as well.  I think 
 
                 subsequent to that visit we suggested counseling, 
 
                 which we often do.
 
            
 
                    Q.  Did he have both the medical reaction as 
 
                 well as a stress reaction?
 
            
 
                    A.  That's right.
 
            
 
            (Thoman Deposition, pp. 30-31).
 
            
 
                 Dr. Thoman's reasons for taking claimant off work 
 
            related both to the respiratory symptoms and to get 
 
            sufficient counseling to obtain specific recommendations.  
 
            Mr. Luna was referred to a licensed psychologist, Herbert 
 
            Notch, PH.D., for this purpose.
 
            
 
                 As it happens, claimant had seen Robert T. Brown, M.D., 
 
            in October 1990 with sinus and earache complaints.  Dr. 
 
            Brown conducted extensive allergy skin testing which found a 
 
            significant response to house dust only.  In March 1991, Dr. 
 
            Brown recommended weekly allergy desensitization injections.  
 
            His initial impression had been of right maxillary 
 
            sinusitis, possible underlying allergy and bilateral serous 
 
            otitis media (inflammation of the ears).
 
            
 
                 Although Dr. Brown did not diagnose asthma, Dr. Thoman 
 
            testified that claimant had some asthmatic bronchial spasm 
 
            which he did not feel was precipitated by pollens or house 
 
            dust.  However, Dr. Thoman agreed that allergy could have 
 
            played a part in those reactions.
 
            
 
                 Once again, Dr. Jejurikar proved of a different mind.  
 
            He specified that exposure to blanket wash and UV coating 
 
            did not cause panic attacks, anxiety, sinus problems or 
 
            asthma.  Nor would either increase susceptibility or 
 
            reactivity to future exposures.  Dr. Jejurikar agreed that 
 
            claimant's panic disorder could have resulted from emotional 
 
            stress related to his worrying about chemical exposure to 
 
            blanket wash or UV coating, but that the substances 
 
            themselves would not actually cause anxiety.  He did not 
 
            testify as to why he believed these substances did not cause 
 
            respiratory problems, nor did he address that issue in his 
 
            otherwise detailed and persuasive report dated August 24, 
 
            1992.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 Dr. From testified that he did not believe claimant 
 
            suffered chemically induced asthma, noting that his symptoms 
 
            could readily be explained by his allergy to dust and noting 
 
            that claimant had many ear, nose and throat problems by 
 
            history.  He also noted that there are many causes for 
 
            lightheadness, blurred vision and headaches, but expressed 
 
            no opinion as to whether a causal nexus existed between such 
 
            symptoms and exposure to blanket wash or UV coating.
 
            
 
                 As noted above, Dr. Thoman referred claimant in 1990 to 
 
            Dr. Notch, a clinical psychologist.  Dr. Notch testified by 
 
            deposition on August 14, 1992.  His three part diagnosis was 
 
            of panic disorder with agoraphobia, probable mild to 
 
            moderate agoraphobia and possible post traumatic stress 
 
            disorder.  Dr. Notch agreed that claimant had a number of 
 
            preexisting psychological problems due primarily to family 
 
            problems, but that his "work situation" caused a temporary 
 
            aggravation of those preexisting problems, a temporary 
 
            aggravation which he would expect to resolve.  Dr. Notch 
 
            could not testify to permanent psychological changes based 
 
            upon the acute episode in late 1990 and early 1991.  Dr. 
 
            Notch continued treating claimant until March 1992.  He 
 
            concurred with Dr. Thoman that claimant was appropriately 
 
            off work for psychological problems from November 21, 1990 
 
            through January 21, 1991.  Dr. Notch pointed to claimant's 
 
            state of anxiety as due to his association of current 
 
            problems with what he considered a deleterious previous 
 
            toxic exposure and also a phobic reaction wearing a face 
 
            mask while at work.  
 
            
 
                 It is worth noting that claimant's family was more or 
 
            less simultaneously going through family therapy with DeVon 
 
            R. Stokes, Ph.D, another licensed psychologist.  Dr. Stokes' 
 
            letter of December 5, 1990, indicates severe and 
 
            longstanding family problems, including alcohol abuse, 
 
            physical violence and a lack of respect shown claimant's 
 
            wife by Mr. Luna.
 
            
 
                                conclusions of law
 
            
 
                 Although claimant alleged but a single injury, that of 
 
            September 18, 1989, this decision treats the allegations of 
 
            exposure in 1989 and 1990 separately.  This decision holds 
 
            that claimant did not prove injury arising out of and in the 
 
            course of employment in 1989, but that he did meet his 
 
            burden of proof on that issue with respect to the 1990 
 
            claimed exposure.  
 
            
 
                 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).
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            coailed 
 
            to mention these alarming symptoms to Dr. Schossow.  It 
 
            seems stranger yet that although claimant allegedly 
 
            developed phobias, anxieties, insomnia and increased 
 
            confusion between July and September, he failed to mention 
 
            any of these symptoms to Dr. Shires on September 11 and, as 
 
            noted, that he gave an ambivalent and inconsistent history 
 
            to Dr. Thoman.  
 
            
 
                 As for the rise in SGOT and SGPT enzymes, the opinion 
 
            of Dr. M. Jejurikar as supported by the medical literature 
 
            is found more persuasive than the opinion of Dr. Thoman.  
 
            Alcohol abuse has been shown to be a much more probable 
 
            cause.  Claimant had a long history of alcohol abuse and, 
 
            although he testified to having discontinued alcohol at 
 
            Thanksgiving 1988, he also gave a false history to Dr. 
 
            Schossow on this subject ("he has not consumed significant 
 
            amounts of alcohol in several years").  The medical 
 
            literature does not support an association between toluene 
 
            exposure and elevation of those two enzymes.  By the time 
 
            Dr. Thoman saw claimant and took him off work, he had long 
 
            since been removed from toluene exposure and his enzymes had 
 
            already returned to normal.  Why Dr. Thoman took claimant 
 
            off work on the alleged injury date of September 18 is 
 
            extremely unclear, since every requirement for claimant's 
 
            eventual return to work was already in place (enzymes 
 
            returned to normal and claimant assigned a job away from 
 
            toluene exposure).  
 
            
 
                 Although claimant also complains of numerous other 
 
            symptoms, his reporting of those symptoms to the relevant 
 
            treating physicians at the time in question was either 
 
            inconsistent or nonexistent and, we must not forget that Mr. 
 
            Luna has suffered chronic psychological problems related by 
 
            Dr. Notch to his on-going family problems and childhood 
 
            experiences.  
 
            
 
                 Claimant's reported symptoms and one sign (elevated 
 
            liver enzymes) are not proven on this record to be caused by 
 
            toluene exposure.  While it is a reasonable prophylactic 
 
            measure to move claimant away from toluene exposure for the 
 
            future, it has similarly not been shown that toluene 
 
            exposure causes increased sensitivity and danger to future 
 
            toluene exposure.  Dr. Jejurikar's opinion on this "clinical 
 
            ecology" theory is much more in keeping with the mainstream 
 
            of current medical thought.  
 
            
 
                 Interestingly, even if it were determined that 
 
            claimant's symptomatology in 1989 was caused by Toluene 
 
            exposure, Mr. Luna would not be entitled to recover for 
 
            temporary disability or permanent disability (medical 
 
            expenses are not at issue).  No healing period or temporary 
 
            total disability could be found in this record, because it 
 
            has not been shown that claimant's loss of work was 
 
            medically necessary, since his condition was the same when 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            he was taken off work by Dr. Thoman as when he was returned 
 
            to work by Dr. Thoman.  Permanency benefits would be 
 
            appropriate if toluene exposure caused increased sensitivity 
 
            to toluene, thus leading to a necessary change in job 
 
            responsibilities (and less actual income).  The record, 
 
            however, does not support that theory.  
 
            
 
                 The record is much scantier with respect to the 1990 
 
            exposure to blanket wash and UV coating.  Claimant had some 
 
            respiratory symptoms and an onset of acute psychological 
 
            problems against the backdrop of his chronic condition.  Dr. 
 
            Jejurikar baldly states there is no causal connection, but 
 
            in this case Dr. Thoman's opinion seems the better reasoned, 
 
            since it takes into account respiratory symptoms that 
 
            claimant clearly experienced.  Dr. Thoman and Dr. Notch 
 
            relate psychological problems to the exposure, although Dr. 
 
            Notch (although he is a psychologist rather than a 
 
            physician, his opinion is detailed and expert) ties the 
 
            onset of acute symptomatology also to a phobia about Mr. 
 
            Luna's face mask.  By reason of the psychological problems 
 
            and respiratory problems together, claimant has established 
 
            entitlement to temporary total disability from November 21, 
 
            1990 through January 21, 1991.  The division will be ordered 
 
            to prepare a second litigated file with an injury date of 
 
            November 21, 1990.  In this case, it does not appear that 
 
            defendants will be prejudiced by "creating" a second injury 
 
            date.  Nonetheless, claimant's procedure in pleading but a 
 
            single injury date in 1989 is a dangerous practice and one 
 
            not to be approved.  The 1990 problems could be compensable 
 
            under a 1989 injury date only if those symptoms were found 
 
            to be sequelae of the original Toluene exposure.  This is a 
 
            fragile thread with which to attach potential liability.  
 
            
 
                 However, claimant is not entitled to permanent 
 
            industrial disability with respect to the 1990 exposure.  He 
 
            is back to work without loss of earning capacity.  Dr. 
 
            Jejurikar's opinion that this exposure has not increased his 
 
            sensitivity is accepted in preference to the opinion of Dr. 
 
            Thoman.  The psychological problems constitute a single 
 
            episode only, and in the nature of a temporary aggravation 
 
            of a preexisting condition.  Industrial disability has not 
 
            been shown.  
 
            
 
                 In the absence of contrary evidence, claimant's gross 
 
            weekly earnings, martial status and exemptions will be 
 
            assumed to be identical to the parties' stipulation relative 
 
            the 1989 claim.  The rate book published by this office 
 
            shows that a married individual with a gross weekly wage of 
 
            $410 and entitlement to six exemptions has a rate of $276.67 
 
            per week.
 
            
 
                 Temporary total disability of 8.857 weeks at the 
 
            compensation rate of $276.67 equals $2450.46.
 
            
 
                 Exhibit 16 shows that defendants are entitled to credit 
 
            under Iowa Code section 85.38(2) in the sum of $2,099.59.  
 
            Therefore, claimant takes $350.87.
 
            
 
                                      order
 
            
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 In case no. 971311:  claimant takes nothing.
 
            
 
                 In case no. 1034572:
 
            
 
                 The division shall create a new litigated file showing 
 
            an injury date of November 21, 1990.
 
            
 
                 Defendants shall file a first report of injury within 
 
            thirty (30) days of the filing of this decision.
 
            
 
                 Defendants shall pay claimant two thousand four hundred 
 
            fifty and 46/100 dollars ($2,450.46) in temporary total 
 
            disability benefits, commencing November 21, 1990.
 
            
 
                 All accrued benefits shall be paid in a lump sum with 
 
            statutory interest.
 
            
 
                 Defendants shall have credit in the sum of two thousand 
 
            ninety-nine and 59/100 dollars ($2,099.59).
 
            
 
                 Costs of this action are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr Arthur C Hedberg Jr
 
            Attorney at Law
 
            840 5th Avenue
 
            Des Moines Iowa  50309
 
            
 
            Mr Charles E Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Building
 
            Des Moines Iowa  50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108.30; 2205; 2910; 3700
 
                      Filed Feburary 25, 1993
 
                      DAVID R. RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROMAN LUNA,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File Nos. 971311
 
                      :                1034572
 
            MEREDITH/BURDA,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            CNA INSURANCE COMPANIES, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1108.30; 2205; 2901
 
            Claimant alleged exposure to different toxic substances in 
 
            1989 and 1990, but alleged only a single 1989 injury date.
 
            No 1989 injury was found, but claimant proved a temporary 
 
            disability from toxic exposure in 1990.  The division was 
 
            ordered to prepare a second litigated file for that injury 
 
            date, and defendant was ordered to file a first report.
 
            No permanency found.  Claimant was entitled to temporary 
 
            total disability.
 
            
 
            3700
 
            Under 17A.14(5), the agency's experience, technical 
 
            competence and specialized knowledge were utilized in the 
 
            evaluation of Dr. Thoman's testimony.  It was recognized 
 
            that Dr. Thoman has been seen as holding views similar to 
 
            devotees of "clinical ecology," a controversial theory not 
 
            accepted by the mainstream of current medical thought.