BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       JOHN J. TONE,       
 
                 
 
          Claimant,   
 
                 
 
       vs.            
 
                                            File No. 977785
 
       FARMERS INSURANCE GROUP       
 
       OF COMPANIES,       
 
                                              A P P E A L
 
          Employer,   
 
                                            D E C I S I O N
 
       and            
 
                 
 
       TRUCK INSURANCE EXCHANGE,     
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
       
 
          The record, including the transcript of the hearing before 
 
       the deputy and all exhibits admitted into the record, has been 
 
       reviewed de novo on appeal.
 
       
 
                                 ISSUES
 
       
 
          Defendants state the following issues on appeal:
 
       
 
            
 
            I.      Did the deputy err in imposing the discovery 
 
            sanction of striking from the record all of defendants' 
 
            exhibits, testimony and cross-examination?
 
            
 
            II.     Did the deputy err in failing to impose sanctions 
 
            on claimant for claimant's acknowledged knowing 
 
            concealment of his medical treatment from discovery 
 
            when the medical evidence which was concealed was 
 
            highly relevant to claimant's claim of mental stress?
 
            
 
            III.    Has the claimant failed to prove that his mental 
 
            illness was factually and legally caused by his 
 
            employment?
 
            
 
            IV.     Did the deputy err in assigning claimant an 
 
            industrial disability of fifty percent?
 
            
 
            V.      As a matter of law, should the Roche approach of 
 
            comparing the work stress conditions of all employees 
 
            be overruled in favor of a test which only compare the 
 
            claimant's work stress with that of employees in the 
 
            same occupation?
 
       
 
                            FINDINGS OF FACT
 
       
 
          The findings of fact contained in the proposed agency 
 

 
 
 
 
 
 
 
 
 
       decision filed February 28, 1994 are adopted as set forth below.  
 
       Segments designated by asterisks (*****) indicate portions of the 
 
       language from the proposed agency decision that have been 
 
       intentionally deleted and do not form a part of this final agency 
 
       decision.  Segments designated by brackets ([ ]) indicate 
 
       language that is in addition to the language of the proposed 
 
       agency decision.
 
       
 
          John Tone, 53 years of age at hearing, is a 1963 college 
 
       graduate with a Bachelors' Degree in Economics.  Other than a 
 
       brief stint in the National Guard, claimant has worked his entire 
 
       career in the insurance industry, briefly as an underwriter, but 
 
       primarily as a claims adjuster.  He began working for Farmers 
 
       Insurance Group, a multi-line company, in January 1966, 
 
       eventually becoming a senior multi-line adjuster.  Mr. Tone has 
 
       not worked since taking sick leave on October 19, 1990.
 
       
 
          Claimant was employed in the Cedar Rapids district, which 
 
       reported to a regional authority in Kansas.  Until the very end 
 
       of his employment, claimant worked from an office in his home, 
 
       although this was not entirely satisfactory to the company, since 
 
       claimant barred agents from stepping on his property, once even 
 
       threatening prosecution.  
 
       
 
          The numerous personnel evaluations contained in the record 
 
       demonstrate that claimant was considered a productive and 
 
       valuable employee for many years.  However, beginning in 1980, 
 
       Farmers began developing a new policy sales program known as the 
 
       Iowa Plan.  This proved increasingly successful over the years, 
 
       resulting in greatly increased numbers of agents and policies in 
 
       force (PIF).  However, the number of adjusters serving the 
 
       district was not increased.  This resulted in a gradually 
 
       increasing work load for claimant.
 
       
 
          Problems began to arise in 1984.  Farmers instituted 
 
       mandatory use of a computerized auto damage appraisal program 
 
       known as audatex.  Claimant clearly had trouble adapting to the 
 
       new system, as did at least one other agent who considered the 
 
       extra stress brought about by the mandatory use of this system as 
 
       "the final nail in his coffin" (leading to retirement).  Claimant 
 
       ***** [exhibits a] personality [that is] rigid, inflexible, 
 
       resistant to change or training, and [he is] generally convinced 
 
       that his experience over many years of service takes priority 
 
       over most other considerations, including the views of less-
 
       experienced supervisors.  In any event, claimant clearly resented 
 
       implementation of the audatex system.
 
       
 
          The same year, claimant first developed physical symptoms 
 
       associated with stress.  His family physician, Dr. Richard Rowe 
 
       eventually diagnosed irritable colon syndrome, stress.  Claimant 
 
       was suffering abdominal spasms, nausea and diarrhea.  Dr. Rowe's 
 
       associate, Robert L. Swaney, M.D., testified (by deposition on 
 
       May 14, 1992) that there is often a relationship between 
 
       irritable colon syndrome and stress, and that the probable cause 
 
       of claimant's 1984 symptoms was job related stress.
 
       
 
          According to claimant's wife, Sharon Tone, claimant 
 
       continued to suffer recurrence of nervous symptoms after 1984, 
 
       including sleep disturbances, nightmares, and further cramping 
 
       and diarrhea.  She credibly testified that claimant began losing 
 
       interest in outside activities and became introverted. 
 
       
 
          Ms. Tone also testified that the big change in claimant's 
 
       condition occurred in 1989 when he was placed sequentially under 
 
       two different supervisors.  Claimant's prior supervisor, Vance 
 
       Werninger, had repeatedly requested additional adjusting help 
 

 
 
 
 
 
 
 
 
 
 
 
       from the regional office, but without success.
 
       
 
          The second new supervisor, Randy Horn, is a former military 
 
       man and police officer. ***** Claimant and Mr. Horn clearly had a 
 
       severe personality conflict.  Indeed, it was abundantly clear 
 
       from claimant's testimony that he continues to harbor feelings of 
 
       bitter hatred against Mr. Horn.
 
       
 
          By 1990, claimant had engaged in some conduct clearly 
 
       evidencing his emotional fragility.  Mr. Horn, on the other hand, 
 
       considered the problem merely one of "attitude."  Claimant was 
 
       fearful for his job and was reprimanded.  Horn, it appears, was 
 
       busily gathering negative information to be used against claimant 
 
       in the event of future litigation, which the company clearly 
 
       anticipated.  For example, Larry Sparks (a district manager on 
 
       the sales agency side who testified by deposition on July 12, 
 
       1993) wrote to the regional office in August 1990 to (again) 
 
       report that more adjusters were needed; the divisional sales 
 
       manager promptly reprimanded Sparks due to concern "that they 
 
       might have to terminate Tone and will undoubtedly end up in 
 
       court," and stating that "region" was "most irate" that he had 
 
       given "credence to Tone's possible defense."
 
       
 
          During the years leading up to 1990, it appears that 
 
       claimant's job performance and attitude did deteriorate along 
 
       with his health.  The company grapevine apparently had it that 
 
       claimant engaged in sharp criticism of the company not only with 
 
       sales agents, but with customers.  Claimant also manipulated 
 
       events to underline his claim of being overworked.  For example, 
 
       Larry Sparks's daughter was involved in a personal injury motor 
 
       vehicle collision insured by Farmers.  Claimant was assigned this 
 
       claim for adjustment, but delayed contacting the injured party, 
 
       which should have been given extremely high priority.  Farmers 
 
       would prefer to establish quick rapport with injured insureds or 
 
       claimants, knowing that such people will typically seek legal 
 
       counsel if a satisfactory resolution of the claim is not reached 
 
       quickly.  Farmers clearly abhors "attorney penetration" in claims 
 
       events.
 
       
 
          Another factor adding perceived stress to claimant was 
 
       imposition of a personally guaranteed "24 hour contact" rule by 
 
       Randy Horn.  Although 24 hour contact had long been a company 
 
       goal and guideline, it was not made a rigid rule until Mr. Horn's 
 
       appointment to the district.
 
       
 
          ***** Claims adjusting involves adversarial and frequently 
 
       confrontational contact with people who have suffered loss and 
 
       are seeking quick and generous compensation.  The interests of 
 
       those individuals are diametrically opposed to the interest and 
 
       profit motive of an insurance carrier.  Although claimant was a 
 
       very good adjuster for many years, he clearly found the work 
 
       stressful.  Towards the end, he began engaging in avoidance 
 
       techniques, such as falsely pleading illness to break off an 
 
       appointment after driving ninety miles to contact a claimant.  
 
       This, of course, is extremely consistent with a diagnosis of 
 
       anxiety attacks, as is discussed below.
 
       
 
          Randy Horn, incidentally, was not the only person with whom 
 
       claimant had a personality clash.  While he was becoming more 
 
       introverted and anxious, he was ordered to move from his longtime 
 
       home office into a small space in the district office.  Rightly 
 
       or wrongly, claimant found this request demeaning and disturbing 
 
       because he would have to be around other individuals with whom he 
 
       did not get along well.  
 
       
 
          In March 1990, claimant had, in his own words, a "breakdown" 
 

 
 
 
 
 
 
 
 
 
       and was off work through July 19.  According to his wife, 
 
       claimant was hyperventilating, crying, unable to function, and 
 
       threatening suicide.
 
       
 
          Treatment for stress proved helpful, and claimant returned 
 
       to work (now, in the sales office) on July 20.  Mr. Werniger 
 
       agreed that the return to work should be gradual and claimant's 
 
       work load monitored.  Unfortunately, after approximately one 
 
       week, Farmers began assigning substantial numbers of claims to 
 
       Mr. Tone and stress-related feelings and symptoms returned with a 
 
       vengeance.
 
       
 
          On August 8, Randy Horn roundly criticized claimant in front 
 
       of another employee (Steven Gaul) while himself in an emotional 
 
       state.  Claimant described Horn as nervous and angry and pacing 
 
       around the room swinging his arms.  At this point, claimant just 
 
       plain "lost it."  He began shaking uncontrollably, 
 
       hyperventilating, and stalked out of the office to walk off his 
 
       frustration.  After several hours of searching, Sharon Tone found 
 
       claimant near his home, some seven miles from the office.
 
       
 
          On October 15, Randy Horn placed claimant on a probationary 
 
       status.  Claimant responded by requesting four weeks of vacation 
 
       he had accrued, but Horn denied the request (on appeal to region, 
 
       this decision was later reversed).  Claimant again went on sick 
 
       leave and remains so to this date.
 
       
 
          ***** Claimant repeatedly, almost obsessively, twisted a 
 
       paper clip in a violent manner while testifying.  Of course, it 
 
       is also noted that giving testimony is an inherently stressful 
 
       activity even for one not subject to major depressive episodes 
 
       and anxiety attacks.
 
       
 
          Claimant's treating psychiatrist is Richard H. Rinehart, 
 
       M.D.  Dr. Rinehart, board eligible not (yet) board certified, 
 
       testified by deposition on September 8, 1992.
 
       
 
          Dr. Rinehart began treating claimant in October 1991.  He 
 
       diagnosed major depressive disorder, single episode.  Dr. 
 
       Rinehart believes anxiety is a symptom of depression itself; he 
 
       treats the depression, not the anxiety.
 
       
 
          Dr. Rinehart does not believe claimant has reached maximum 
 
       medical and psychiatric improvement, and notes the following 
 
       depressive symptoms: depressed mood, insomnia, loss of interest 
 
       in pleasurable activities, anxiety attacks, agoraphobic symptoms 
 
       and irritability.
 
       
 
          Asked whether claimant was capable of full time competitive 
 
       employment, Dr. Rinehart opined that claimant could seek work 
 
       different from his previous job (which "seemed to exacerbate 
 
       depressive anxiety symptoms") with restrictions:  claimant should 
 
       not be exposed to a lot of public contacts or much interaction 
 
       with co-workers.  Claimant should avoid large groups of people, 
 
       at least as a major component of his job.
 
       
 
          Although patients with depression sometimes perceive events 
 
       and circumstances other than they might if not depressed, Dr. 
 
       Rinehart did not believe that claimant's perception of his 
 
       interpersonal relationships at work and conditions of employment 
 
       were a symptom of depression, as opposed to a cause or 
 
       exacerbation of that depression.  Indeed, Dr. Rinehart specified 
 
       that claimant's work environment exacerbated the depressive 
 
       illness, although he was unable to state whether work conditions 
 
       actually caused the underlying depressive condition.  Dr. 
 
       Rinehart did not find evidence in claimant's record of any 
 

 
 
 
 
 
 
 
 
 
 
 
       psychosocial stress factors other than employment, such as 
 
       marital or family problems.   Claims adjusting work itself is 
 
       stressful and had exacerbated depressive symptoms wholly apart 
 
       from claimant's interpretation of job stress or later 
 
       interactions with others.
 
       
 
          Claimant was evaluated by a psychologist, Samuel Bernstein, 
 
       Ph.D.  Dr. Bernstein is head of an agency, the Metropolitan 
 
       Employment and Rehabilitation Service, and specializes in 
 
       vocational rehabilitation psychology.  He also holds a license as 
 
       a counselor and is a board certified CRC, or certified 
 
       rehabilitation counselor.  Dr. Bernstein first met claimant on 
 
       June 16, 1993 and testified by deposition on June 24.
 
       
 
          Dr. Bernstein concluded that claimant was unable to return 
 
       to his previous type of employment due to his psychological 
 
       problems, which he saw more as in the nature of anxiety attacks, 
 
       as opposed to a depressive condition.  Claimant has transferable 
 
       skills, but with his current communication problems, those skills 
 
       are mostly in simple clerical work.
 
       
 
          Dr. Bernstein ordered a number of psychometric tests and 
 
       found claimant to be good in arithmetic, indicating potential 
 
       employment as a bookkeeper.  Claimant is competitively 
 
       employable, but only if kept away from substantial interaction 
 
       with the public and co-workers.  Dr. Bernstein also agreed that 
 
       claimant's condition was aggravated by work, and that returning 
 
       to that same work would be a "disaster."
 
       
 
          Claimant was also seen for evaluation by Raymond R. Crowe, 
 
       M.D., a board certified psychiatrist who testified by deposition 
 
       on February 24, 1993.  Dr. Crowe evaluated claimant on June 8, 
 
       1992.
 
       
 
          Dr. Crowe found claimant to be mildly depressed, but was 
 
       unable to express an opinion as to the cause of his panic 
 
       attacks.  In particular, because he believes that the field of 
 
       psychiatry has so far failed to establish an association or 
 
       causal link between psychosocial stress factors and anxiety 
 
       attacks, he had no opinion as to the cause or causes of 
 
       claimant's depressive disorder, but did not believe that the 
 
       illness itself was aggravated by work activity; again, based on 
 
       his view that depressive illness is autonomous illness, and that 
 
       there is no evidence that environmental circumstances alter the 
 
       course or the treatability of the illness.
 
       
 
          Nonetheless, Dr. Crowe believed that claimant's perception 
 
       of the work environment affected the course of his illness, 
 
       although he did not believe that it would be helpful to know 
 
       anything about the details of the job in order to determine 
 
       whether claimant could return to work.  No medical restrictions 
 
       were recommended.
 
       
 
          For several reasons, the opinion of Dr. Rinehart, as 
 
       buttressed by the opinion of Dr. Bernstein, is entitled to 
 
       greater weight than the opinion of Dr. Crowe.  Chief among these 
 
       is that Dr. Crowe believes claimant's conditions to be entirely 
 
       autonomous.  Under his theory, no mental illness could apparently 
 
       ever be causally connected to work.  ***** In addition, Dr. 
 
       Rinehart is a treating physician who has seen claimant over an 
 
       extended period, rather than only once.  Presumably though, Dr. 
 
       Crowe would have the same opinion no matter how many times he saw 
 
       claimant, or any other worker claiming work related mental 
 
       injury.
 
       
 
          Accordingly, it is found that claimant's condition of major 
 

 
 
 
 
 
 
 
 
 
 
 
       depressive disorder and anxiety attacks was, at least, aggravated 
 
       by employment conditions.
 
       
 
          It is further held that claimant is capable of returning to 
 
       work, although not to employment as an insurance adjuster.  
 
       Claimant is currently not seeking work, since he feels that 
 
       employment for which he might now be suited, given his medical 
 
       restrictions, is beneath his dignity.  Claimant's current 
 
       unemployed status is voluntary.
 
       
 
                           CONCLUSIONS OF LAW
 
       
 
          The conclusions of law contained in the proposed agency 
 
       decision filed February 28, 1994 are adopted as set forth below.  
 
       Segments designated by asterisks (*****) indicate portions of the 
 
       language from the proposed agency decision that have been 
 
       intentionally deleted and do not form a part of this final agency 
 
       decision.  Segments designated by brackets ([ ]) indicate 
 
       language that is in addition to the language of the proposed 
 
       agency decision.
 
       
 
          Claimant bears 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).
 
       
 
          The standard for determining whether a mental injury arose 
 
       out of and in the course of employment was recently discussed in 
 
       Ohnemus v. John Deere Davenport Works, File No. 816947 (App. 
 
       Decn., February 26, 1990) and Kelley v. Sheffield Care Center, 
 
       File No. 872737 (App. Decn., October 31, 1991) as follows:
 
            
 
               In order to prevail claimant must prove that he 
 
            suffered a non-traumatically caused mental injury that 
 
            arose out of and in the course of his employment.  This 
 
            matter deals with what is referred to as a mental-
 
            mental injury and does not deal with a mental condition 
 
            caused by physical trauma or physical condition caused 
 
            by mental stimulus.  The supreme court in Schreckengast 
 
            v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
            recognized that issues of causation can involve either 
 
            causation in fact or legal causation.  As stated in 
 
            footnote 3 at 369 N.W.2d 810:
 
            
 
               We have recognized that in both civil and 
 
            criminal actions causation in fact involves whether 
 
            a particular event in fact caused certain 
 
            consequences to occur.  Legal causation presents a 
 
            question of whether the policy of the law will 
 
            extend responsibility to those consequences which 
 
            have in fact been produced by that event.  State v. 
 
            Marti, 290 N.W.2d 570, 584-85 (Iowa 1980).  
 
            Causation in fact presents an issue of fact while 
 
            legal causation presents an issue of law.  Id.
 
            
 
            That language was the basis of the language in 
 
            Desgranges v. Dept of Human Services, (Appeal Decision, 
 
            August 19, 1988) which discussed that there must be 
 
            both medical and legal causation for a nontraumatic 
 
            mental injury to arise out of and in the course of 
 
            employment.  While Desgranges used the term medical 
 
            causation the concept involved was factual causation.  
 
            Therefore, in this matter it is necessary for two 
 
            issues to be resolved before finding an injury arising 
 
            out of and in the course of employment - factual and 
 
            legal causation.  Proving the factual existence of an 
 

 
 
 
 
 
 
 
            injury may be accomplished by either expert testimony 
 
            or nonexpert testimony.
 
            
 
               ....
 
            
 
               Not only must claimant prove that his work was the 
 
            factual cause of his mental injury, claimant must also 
 
            prove that the legal cause of his injury was his work.  
 
            In order to prove this legal causation claimant must 
 
            prove that his temporary mental condition "resulted 
 
            from a situation of greater dimensions than the day to 
 
            day mental stresses and tensions which all employees 
 
            must experience."  Swiss Colony v. Department of ICAR, 
 
            240 N.W.2d 128, 130 (Wisc. 1976).
 
       
 
       Kelley v. Sheffield Care Center, File No. 872737 (App. Decn., 
 
       October 31, 1991).
 
       
 
          Based on the opinions of Dr. Rinehart and Dr. Bernstein, 
 
       claimant has met his burden of proof on the "factual causation" 
 
       test.  His mental condition was aggravated by his employment with 
 
       Farmers Insurance Group.
 
       
 
          This leaves the "legal causation" test.  The commissioner 
 
       has recently ruled that claimant's work stress conditions must be 
 
       compared with the conditions of all employees in general, not 
 
       those employees in the same occupation.  Roche v. Dept. of 
 
       Community Corrections, (App. Decn., June 17, 1993).
 
       
 
          According to claimant, the stress he felt came in four 
 
       areas: overload, "improper" management, management "harassment," 
 
       and the job itself, which involved constant adversarial contact 
 
       with the public. 
 
       
 
          ***** Claimant ***** has pointed out that there were 
 
       approximately seven agents in his district in 1966, and over 30 
 
       in 1990.  Thirty agents clearly produced more PIF and more 
 
       resultant claims.  Yet, there were no additional adjusters.  Mr. 
 
       Werniger and Mr. Sparks both appealed to regional headquarters 
 
       for additional adjusters, requests that fell on deaf ears. ***** 
 
       [The same evidence would relate to his claim of] "improper" 
 
       management, or at least management that subjected claimant to 
 
       unnecessary stress.  Claimant's allegations of "harassment" are 
 
       less well founded, since his perceptions are questionable, both 
 
       due to his depressive and anxious condition and his personal 
 
       emnity directed toward Randy Horn. *****
 
       
 
          [In order to satisfy the "legal test," claimant must show 
 
       that the work stress he experienced was greater than the day-to-
 
       day emotional strain and tension which all employees experience.  
 
       Claimant's stressors do not rise to the level of stress greater 
 
       than that experienced by all employees.  Being required to adapt 
 
       to a new computer system is a common development in the current 
 
       workplace.  Claimant may not have liked the process of converting 
 
       to the new system, but any stress involved in doing so is 
 
       prevalent among all workers.  Similarly, a personality clash with 
 
       a supervisor is not an uncommon experience in the workplace, and 
 
       again does not rise to the level of stress greater than that 
 
       experienced by other workers.  Claimant's workload did increase 
 
       over the span of several years, from the 1960s to the 1990s.  
 
       There was not sufficient evidence to show that the workload was 
 
       overwhelming, however.  Although the increased workload was 
 
       undoubtedly a source of stress, the evidence does not indicate 
 
       that the stress was of such a volume or intensity that it was 
 
       greater than that experienced by other workers in occupations 
 
       where the workload, at least in terms of number of clients or 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       policies, for example, has increased.  An increased workload may 
 
       be a factor of stress, but the increase described in this case 
 
       does not rise to the level required by the legal test.  Finally, 
 
       being required to work at the company's offices rather than at 
 
       home, although not as convenient to claimant, was certainly not a 
 
       stress greater than that experienced by other workers, as working 
 
       at a location other than one's home is the norm.  Even when all 
 
       the above factors and the other factors described by claimant are 
 
       considered in combination, claimant has failed to establish that 
 
       his current mental condition was caused or aggravated by 
 
       workplace stress greater than that experienced by all employees.]
 
       
 
          Based on all of the evidence, claimant [has failed to] 
 
       establish that he was subjected to stress conditions at work 
 
       greater than and more damaging than those of every day employment 
 
       life for employees in general.  *****
 
       
 
          *****
 
       
 
          In light of this conclusion, defendants' appeal issues on 
 
       sanctions are moot.
 
       
 
          WHEREFORE, the decision of the deputy is reversed.
 
       
 
                                 ORDER
 
       
 
          THEREFORE, it is ordered:
 
       
 
          That claimant shall take nothing from these proceedings.
 
       
 
          That defendants shall pay the costs of this matter including 
 
       the transcription of the hearing.  
 
       
 
            
 
            Signed and filed this ____ day of November, 1994.
 
       
 
       
 
       
 
       
 
                              ________________________________
 
                                      BYRON K. ORTON
 
                                  INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Robert R. Rush
 
       Mr. Matthew Nagle
 
       Attorneys at Law
 
       P.O. Box 2457
 
       Cedar Rapids, Iowa  52406
 
       
 
       Mr. James E. Shipman
 
       Attorney at Law
 
       115 Third St. SE, Ste 1200
 
       Cedar Rapids, Iowa 52401
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       2204; 1108.20
 
                                       Filed November 30, 1994
 
                                       Byron K. Orton
 
                         
 
       
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       JOHN J. TONE,       
 
                 
 
          Claimant,   
 
                 
 
       vs.            
 
                                            File No. 977785
 
       FARMERS INSURANCE GROUP       
 
       OF COMPANIES,       
 
                                               A P P E A L
 
          Employer,   
 
                                             D E C I S I O N
 
       and            
 
                 
 
       TRUCK INSURANCE EXCHANGE,     
 
                 
 
          Insurance Carrier,    
 
          Defendants.      
 
       _________________________________________________________________
 
       2204; 1108.20
 
       
 
          Claimant, a longtime insurance adjuster, developed disabling 
 
       mental impairment.  Claimant cited as stressors: a personality 
 
       conflict with a supervisor; having to adapt to a new computer 
 
       system; "improper management;" "harassment;" and being required 
 
       to work at the company's offices instead of at home.  Claimant 
 
       held to have met the "medical" test, but held not to have 
 
       satisfied the "legal" test to show that the stress he underwent 
 
       was greater than that experienced by all employees.  
 
       
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOHN J. TONE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 977785
 
            vs.                           :
 
                                                A R B I T R A T I O N
 
            FARMERS INSURANCE GROUP OF    :
 
            COMPANIES,                            D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            TRUCK INSURANCE EXCHANGE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case upon the petition in 
 
            arbitration of claimant John J. Tone against his employer, 
 
            Farmers Insurance Group and its insurance carrier, Truck 
 
            Insurance Exchange.  Mr. Tone asserts that he sustained a 
 
            mental injury resulting from work related mental stimuli 
 
            causing him to leave work after March 7, 1990.  He asserts 
 
            that he sustained compensable injury on that date.  A 
 
            hearing was accordingly held in Cedar Rapids, Iowa on July 
 
            13, 1993.  Witnesses at hearing included claimant, Gary 
 
            Liedtke, Sharon Tone, Kenneth Allers, David Mitchell, 
 
            William Vance Werniger and Randall Horn.  Claimant's 
 
            exhibits 1-19 and 21-32 were received into evidence along 
 
            with defendants' exhibits A-QQ and TT through BBB.  
 
            Claimant's exhibits 16B and 20 and defendants' exhibit SS 
 
            were excluded upon objection.  An objection to defendants' 
 
            exhibit RR was taken under advisement and is at this time 
 
            ruled moot.  See below.
 
            
 
                 Near the end of his direct examination, claimant 
 
            disclosed that he had seen a physician, Dr. Payvandi, for a 
 
            high blood pressure problem and had intentionally failed to 
 
            disclose this treatment because he didn't want "insurance 
 
            companies or anybody else screwing with this."  Defendants 
 
            thereupon moved for sanctions.  Upon claimant's 
 
            representation that he had seen Dr. Payvandi in June 1993, 
 
            probably after both parties' discovery deadlines anyway, the 
 
            motion was overruled.  However, claimant was ordered to 
 
            provide a full release to defendants, who were given thirty 
 
            days to investigate and file an additional motion for 
 
            sanctions should prejudice appear.
 
            
 
                 Defendants filed such a motion on August 11, 1993.  The 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            motion pointed out that claimant, contrary to his testimony, 
 
            was seen by Dr. Payvandi on April 14, April 22 and May 27, 
 
            1993 and that a nuclear scan of the kidneys had revealed 
 
            diminished renal function on the right.  Dr. Payvandi 
 
            suggested an abdominal aortography and renal arteriogram and 
 
            charted that claimant was "somewhat apprehensive about it, 
 
            however, and he wants to wait."
 
            
 
                 The motion for sanctions should be overruled for 
 
            several reasons.  First, defendants' proper remedy was to 
 
            move for continuance as well as imposition of sanctions 
 
            under Blink v. McNabb, 287 N.W.2d 596 (Iowa 1980).  
 
            Sanctions short of outright dismissal might properly be 
 
            fashioned after knowing what Dr. Payvandi's records contain.  
 
            As it turned out, this is essentially the relief that was 
 
            granted.  Defendants' present motion does not seek reopening 
 
            of the record.  While it is obvious that concern over a 
 
            serious health problem is stressful and can exacerbate 
 
            mental illness, claimant was clearly not aware of this 
 
            problem until April 22, 1993.  Claimant last worked in 1990 
 
            and his symptoms go back to 1984.  In the scheme of things, 
 
            this additional source of stress is fairly insignificant 
 
            because it is of such recent date.  All the medical opinions 
 
            pre-date April 22, 1993, when claimant was unaware of any 
 
            serious renal condition.  Also, claimant properly points out 
 
            in his resistance, that the two interrogatories upon which 
 
            defendants rely, numbers 15 and 19, were specifically 
 
            objected to.  No motion to compel was presented to the 
 
            agency.  Iowa Rule of Civil Procedure 126(a) provides that 
 
            an interrogatory shall be answered unless objected to.  In 
 
            both cases, claimant went on to answer the interrogatory 
 
            "without waiving" his objections.  Counsel for claimant did 
 
            not learn of the Payvandi treatment until claimant's 
 
            voluntary disclosure at trial.  This writer would absolutely 
 
            not approve the practice of simultaneously objecting to and 
 
            answering an interrogatory "without waiving the objection" 
 
            if the answer were materially false or incomplete when made.  
 
            Such is not the case here.  In any event, under Iowa 
 
            R.Civ.P. 122(d), a party who has responded to a request for 
 
            production with a response that was complete when made is 
 
            under no duty to supplement except as to the identity and 
 
            location of persons having knowledge of discoverable 
 
            matters, the identity of each person expected to be called 
 
            at trial, or if the party knows the response was incorrect 
 
            when made or circumstances are such that a failure to amend 
 
            the response is in substance a knowing concealment.  It is 
 
            noted, though, that claimant's conduct very arguably fits 
 
            the latter category.  Indeed, even though the motion for 
 
            sanctions is hereby overruled, it is recognized that 
 
            claimant himself understood and believed his conduct to be 
 
            wrongful.  This has been taken into account and has a 
 
            substantial adverse impact on claimant's credibility.
 
            
 
                 On November 5, 1993, claimant moved for sanctions based 
 
            on claimed discovery misconduct by defendants.  Claimant's 
 
            interrogatory number five asked whether any written or oral 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            statements had been obtained from any person "regarding this 
 
            action" and if so, seeking other details.  Defendants' 
 
            answer failed to disclose that Randy Horn (claimant's last 
 
            supervisor and chief antagonist) took statements from five 
 
            other employees in October 1990.  Horn, who did not sign the 
 
            original answer to interrogatories, disclosed having taken 
 
            statements during his deposition on February 16, 1993, 
 
            following which claimant filed a second and then a third 
 
            request for supplementation of discovery responses on March 
 
            24 and May 27.  Claimant's counsel also wrote defense 
 
            counsel on April 15, 1993, to specifically request advice 
 
            about those statements recorded by Horn.  On June 18, 1993, 
 
            defense counsel James Peters wrote that defendants were "not 
 
            able to locate any other tapes or transcripts."
 
            
 
                 However, on October 28, 1993, long after this case had 
 
            been submitted, defendants belatedly disclosed that cassette 
 
            tapes of these statements had been "discovered" in the 
 
            regional claims office of Farmers Insurance Group on 
 
            September 15, 1993.  Defendants have offered no explanation 
 
            for why it took in excess of one month to disclose this 
 
            belated "discovery", even though Ann Gray testified in her 
 
            affidavit that she had been aware in the summer of 1993 that 
 
            such statements had been made and were being sought by 
 
            defense counsel.  
 
            
 
                 Defendants resist the motion for imposition of 
 
            sanctions on several grounds.  For example, they assert that 
 
            an objection was lodged to producing any statements as being 
 
            privileged under Iowa Rule of Civil Procedure 122(c) as 
 
            being prepared in anticipation of litigation.  This 
 
            argument, however, is untenable.  The false answer was in 
 
            response to an interrogatory (which was not objected to), 
 
            not a request for production of documents.  Had the 
 
            existence of these statements been disclosed, claimant could 
 
            have sought production under the provisions of the rule, and 
 
            any dispute considered by the agency.  By failing to 
 
            disclose that such statements had even been taken, 
 
            defendants denied claimant any opportunity to seek that 
 
            relief.  Defendants further point out that the existence of 
 
            these statements was revealed in Randy Horn's deposition in 
 
            April.  This argument overlooks the disagreeable fact that 
 
            defendants subsequently failed to correct the false answer 
 
            to interrogatory five in the face of multiple requests for 
 
            supplementation, doing so only after the evidentiary record 
 
            was closed.  Defendants also maintain that the statements 
 
            are protected from discovery under rule 122(c).  Very 
 
            probably they are.  However, had the existence of these 
 
            statements been properly disclosed in the face of a specific 
 
            interrogatory and several requests for supplementation, 
 
            claimant could have challenged that claim under the rule, by 
 
            showing substantial need of the materials and inability to 
 
            obtain the substantial equivalent by other means.  Claimant 
 
            may or may not have succeeded, but what is significant is 
 
            that he was denied the opportunity to try through wrongful 
 
            conduct on the part of these defendants.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                 Accordingly, sanctions are in order.  In determining 
 
            the appropriate sanction, it is proper to take into account 
 
            this agency's clear interest in protecting the integrity of 
 
            the adjudicatory process and the openness and honesty of 
 
            discovery.  Defendants' conduct in this case is egregious.  
 
            The appropriate sanction is to strike from the record each 
 
            and every one of defendants' exhibits, the testimony of 
 
            witnesses Allers, Mitchell, Werniger and Horn, and the 
 
            cross-examination of claimant and his witnesses.  It is so 
 
            ordered.  Accordingly, the record in this case consists of 
 
            the direct examination of claimant, Gary Liedtke and Sharon 
 
            Tone and claimant's exhibits 1-32, inclusive.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  An employment relationship existed at 
 
                    the time of the alleged injury;
 
            
 
                    2.  Claimant was off work from March 8, 1990 
 
                    through July 19, 1990 and October 19, 1990 
 
                    through the date of hearing;
 
            
 
                    3.  Permanent disability, if any, should be 
 
                    compensated industrially;
 
            
 
                    4.  The proper rate of compensation is 
 
                    $540.33 per week;
 
            
 
                    5.  Disputed medical treatment and the cost 
 
                    thereof is fair and reasonable and causally 
 
                    connected to the medical condition upon 
 
                    which the claim is based; and,
 
            
 
                    6.  Defendants are entitled to credit under 
 
                    Iowa Code section 85.38(2) for payment of 
 
                    sick pay/disability benefits in the amount 
 
                    $51,171.00.
 
            
 
                 Issues presented for resolution include;
 
            
 
                    1.  Whether claimant sustained injury 
 
                    arising out of and in the course of 
 
                    employment on March 7, 1990;
 
            
 
                    2.  Whether the injury caused temporary or 
 
                    permanent disability;
 
            
 
                    3.  The extent of temporary total disability 
 
                    or healing period;
 
            
 
                    4.  The extent and commencement date of 
 
                    permanent disability;
 
            
 
                    5.  Entitlement to medical benefits under 
 
                    Iowa Code section 85.27; and,
 
            
 
                    6.  Entitlement to an independent evaluation 
 

 
            
 
            Page   5
 
            
 
            
 
                    under Iowa Code section 85.39.
 
            
 
                 With respect to medical benefits, defendants disputed 
 
            whether expenses were causally connected to the work injury 
 
            and whether they were authorized.  The authorization defense 
 
            was ruled invalid at hearing, because defendants forfeited 
 
            the right to control the course of treatment by denying 
 
            liability on the claim.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 John Tone, 53 years of age at hearing, is a 1963 
 
            college graduate with a Bachelors' Degree in Economics.  
 
            Other than a brief stint in the National Guard, claimant has 
 
            worked his entire career in the insurance industry, briefly 
 
            as an underwriter, but primarily as a claims adjuster.  He 
 
            began working for Farmers Insurance Group, a multi-line 
 
            company, in January 1966, eventually becoming a senior 
 
            multi-line adjuster.  Mr. Tone has not worked since taking 
 
            sick leave on October 19, 1990.
 
            
 
                 Claimant was employed in the Cedar Rapids district, 
 
            which reported to a regional authority in Kansas.  Until the 
 
            very end of his employment, claimant worked from an office 
 
            in his home, although this was not entirely satisfactory to 
 
            the company, since claimant barred agents from stepping on 
 
            his property, once even threatening prosecution.  
 
            
 
                 The numerous personnel evaluations contained in the 
 
            record demonstrate that claimant was considered a productive 
 
            and valuable employee for many years.  However, beginning in 
 
            1980, Farmers began developing a new policy sales program 
 
            known as the Iowa Plan.  This proved increasingly successful 
 
            over the years, resulting in greatly increased numbers of 
 
            agents and policies in force (PIF).  However, the number of 
 
            adjusters serving the district was not increased.  This 
 
            resulted in a gradually increasing work load for claimant.
 
            
 
                 Problems began to arise in 1984.  Farmers instituted 
 
            mandatory use of a computerized auto damage appraisal 
 
            program known as audatex.  Claimant clearly had trouble 
 
            adapting to the new system, as did at least one other agent 
 
            who considered the extra stress brought about by the 
 
            mandatory use of this system as "the final nail in his 
 
            coffin" (leading to retirement).  Claimant's demeanor and 
 
            testimony left this observer with the strong impression that 
 
            he is by personality rigid, inflexible, resistant to change 
 
            or training, and generally convinced that his experience 
 
            over many years of service takes priority over most other 
 
            considerations, including the views of less-experienced 
 
            supervisors.  In any event, claimant clearly resented 
 
            implementation of the audatex system.
 
            
 
                 The same year, claimant first developed physical 
 
            symptoms associated with stress.  His family physician, Dr. 
 
            Richard Rowe eventually diagnosed irritable colon syndrome, 
 
            stress.  Claimant was suffering abdominal spasms, nausea and 
 
            diarrhea.  Dr. Rowe's associate, Robert L. Swaney, M.D., 
 
            testified (by deposition on May 14, 1992) that there is 
 
            often a relationship between irritable colon syndrome and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            stress, and that the probable cause of claimant's 1984 
 
            symptoms was job related stress.
 
            
 
                 According to claimant's wife, Sharon Tone, claimant 
 
            continued to suffer recurrence of nervous symptoms after 
 
            1984, including sleep disturbances, nightmares, and further 
 
            cramping and diarrhea.  She credibly testified that claimant 
 
            began losing interest in outside activities and became 
 
            introverted. 
 
            
 
                 Ms. Tone also testified that the big change in 
 
            claimant's condition occurred in 1989 when he was placed 
 
            sequentially under two different supervisors.  Claimant's 
 
            prior supervisor, Vance Werninger, had repeatedly requested 
 
            additional adjusting help from the regional office, but 
 
            without success.
 
            
 
                 The second new supervisor, Randy Horn, is a former 
 
            military man and police office who generally impressed this 
 
            observer as a rigid, authoritarian, and fervently 
 
            pro-company individual.  Claimant and Mr. Horn clearly had a 
 
            severe personality conflict.  Indeed, it was abundantly 
 
            clear from claimant's testimony that he continues to harbor 
 
            feelings of bitter hatred against Mr. Horn.
 
            
 
                 By 1990, claimant had engaged in some conduct clearly 
 
            evidencing his emotional fragility.  Mr. Horn, on the other 
 
            hand, considered the problem merely one of "attitude."  
 
            Claimant was fearful for his job and was reprimanded.  Horn, 
 
            it appears, was busily gathering negative information to be 
 
            used against claimant in the event of future litigation, 
 
            which the company clearly anticipated.  For example, Larry 
 
            Sparks (a district manager on the sales agency side who 
 
            testified by deposition on July 12, 1993) wrote to the 
 
            regional office in August 1990 to (again) report that more 
 
            adjusters were needed; the divisional sales manager promptly 
 
            reprimanded Sparks due to concern "that they might have to 
 
            terminate Tone and will undoubtedly end up in court," and 
 
            stating that "region" was "most irate" that he had given 
 
            "credence to Tone's possible defense."
 
            
 
                 During the years leading up to 1990, it appears that 
 
            claimant's job performance and attitude did deteriorate 
 
            along with his health.  The company grapevine apparently had 
 
            it that claimant engaged in sharp criticism of the company 
 
            not only with sales agents, but with customers.  Claimant 
 
            also manipulated events to underline his claim of being 
 
            overworked.  For example, Larry Sparks's daughter was 
 
            involved in a personal injury motor vehicle collision 
 
            insured by Farmers.  Claimant was assigned this claim for 
 
            adjustment, but delayed contacting the injured party, which 
 
            should have been given extremely high priority.  Farmers 
 
            would prefer to establish quick rapport with injured 
 
            insureds or claimants, knowing that such people will 
 
            typically seek legal counsel if a satisfactory resolution of 
 
            the claim is not reached quickly.  Farmers clearly abhors 
 
            "attorney penetration" in claims events.
 
            
 
                 Another factor adding perceived stress to claimant was 
 
            imposition of a personally guaranteed "24 hour contact" rule 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            by Randy Horn.  Although 24 hour contact had long been a 
 
            company goal and guideline, it was not made a rigid rule 
 
            until Mr. Horn's appointment to the district.
 
            
 
                 And, let it not be forgotten that claims adjusting is 
 
            itself an inherently stressful line of endeavor.  Claims 
 
            adjusting involves adversarial and frequently 
 
            confrontational contact with people who have suffered loss 
 
            and are seeking quick and generous compensation.  The 
 
            interests of those individuals are diametrically opposed to 
 
            the interest and profit motive of an insurance carrier.  
 
            Although claimant was a very good adjuster for many years, 
 
            he clearly found the work stressful.  Towards the end, he 
 
            began engaging in avoidance techniques, such as falsely 
 
            pleading illness to break off an appointment after driving 
 
            ninety miles to contact a claimant.  This, of course, is 
 
            extremely consistent with a diagnosis of anxiety attacks, as 
 
            is discussed below.
 
            
 
                 Randy Horn, incidentally, was not the only person with 
 
            whom claimant had a personality clash.  While he was 
 
            becoming more introverted and anxious, he was ordered to 
 
            move from his longtime home office into a small space in the 
 
            district office.  Rightly or wrongly, claimant found this 
 
            request demeaning and disturbing because he would have to be 
 
            around other individuals with whom he did not get along 
 
            well.  
 
            
 
                 In March 1990, claimant had, in his own words, a 
 
            "breakdown" and was off work through July 19.  According to 
 
            his wife, claimant was hyperventilating, crying, unable to 
 
            function, and threatening suicide.
 
            
 
                 Treatment for stress proved helpful, and claimant 
 
            returned to work (now, in the sales office) on July 20.  Mr. 
 
            Werniger agreed that the return to work should be gradual 
 
            and claimant's work load monitored.  Unfortunately, after 
 
            approximately one week, Farmers began assigning substantial 
 
            numbers of claims to Mr. Tone and stress-related feelings 
 
            and symptoms returned with a vengeance.
 
            
 
                 On August 8, Randy Horn roundly criticized claimant in 
 
            front of another employee (Steven Gaul) while himself in an 
 
            emotional state.  Claimant described Horn as nervous and 
 
            angry and pacing around the room swinging his arms.  At this 
 
            point, claimant just plain "lost it."  He began shaking 
 
            uncontrollably, hyperventilating, and stalked out of the 
 
            office to walk off his frustration.  After several hours of 
 
            searching, Sharon Tone found claimant near his home, some 
 
            seven miles from the office.
 
            
 
                 On October 15, Randy Horn placed claimant on a 
 
            probationary status.  Claimant responded by requesting four 
 
            weeks of vacation he had accrued, but Horn denied the 
 
            request (on appeal to region, this decision was later 
 
            reversed).  Claimant again went on sick leave and remains so 
 
            to this date.
 
            
 
                 While testifying, claimant appeared to this observer to 
 
            be a basket of nerves.  Make that, an angry basket of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            nerves.  By way of illustration, claimant repeatedly, almost 
 
            obsessively, twisted a paper clip in a violent manner while 
 
            testifying.  Of course, it is also noted that giving 
 
            testimony is an inherently stressful activity even for one 
 
            not subject to major depressive episodes and anxiety 
 
            attacks.
 
            
 
                 Claimant's treating psychiatrist is Richard H. 
 
            Rinehart, M.D  Dr. Rinehart, board eligible not (yet) board 
 
            certified, testified by deposition on September 8, 1992.
 
            
 
                 Dr. Rinehart began treating claimant in October 1991.  
 
            He diagnosed major depressive disorder, single episode.  Dr. 
 
            Rinehart believes anxiety is a symptom of depression itself; 
 
            he treats the depression, not the anxiety.
 
            
 
                 Dr. Rinehart does not believe claimant has reached 
 
            maximum medical and psychiatric improvement, and notes the 
 
            following depressive symptoms: depressed mood, insomnia, 
 
            loss of interest in pleasurable activities, anxiety attacks, 
 
            agoraphobic symptoms and irritability.
 
            
 
                 Asked whether claimant was capable of full time 
 
            competitive employment, Dr. Rinehart opined that claimant 
 
            could seek work different from his previous job (which 
 
            "seemed to exacerbate depressive anxiety symptoms") with 
 
            restrictions:  claimant should not be exposed to a lot of 
 
            public contacts or much interaction with co-workers.  
 
            Claimant should avoid large groups of people, at least as a 
 
            major component of his job.
 
            
 
                 Although patients with depression sometimes perceive 
 
            events and circumstances other than they might if not 
 
            depressed, Dr. Rinehart did not believe that claimant's 
 
            perception of his interpersonal relationships at work and 
 
            conditions of employment were a symptom of depression, as 
 
            opposed to a cause or exacerbation of that depression.  
 
            Indeed, Dr. Rinehart specified that claimant's work 
 
            environment exacerbated the depressive illness, although he 
 
            was unable to state whether work conditions actually caused 
 
            the underlying depressive condition.  Dr. Rinehart did not 
 
            find evidence in claimant's record of any psychosocial 
 
            stress factors other than employment, such as marital or 
 
            family problems.   Claims adjusting work itself is stressful 
 
            and had exacerbated depressive symptoms wholly apart from 
 
            claimant's interpretation of job stress or later 
 
            interactions with others.
 
            
 
                 Claimant was evaluated by a psychologist, Samuel 
 
            Bernstein, Ph.D..  Dr. Bernstein is head of an agency, the 
 
            Metropolitan Employment and Rehabilitation Service, and 
 
            specializes in vocational rehabilitation psychology.  He 
 
            also holds a license as a counselor and is a board certified 
 
            CRC, or certified rehabilitation counselor.  Dr. Bernstein 
 
            first met claimant on June 16, 1993 and testified by 
 
            deposition on June 24.
 
            
 
                 Dr. Bernstein concluded that claimant was unable to 
 
            return to his previous type of employment due to his 
 
            psychological problems, which he saw more as in the nature 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            of anxiety attacks, as opposed to a depressive condition.  
 
            Claimant has transferable skills, but with his current 
 
            communication problems, those skills are mostly in simple 
 
            clerical work.
 
            
 
                 Dr. Bernstein ordered a number of psychometric tests 
 
            and found claimant to be good in arithmetic, indicating 
 
            potential employment as a bookkeeper.  Claimant is 
 
            competitively employable, but only if kept away from 
 
            substantial interaction with the public and co-workers.  Dr. 
 
            Bernstein also agreed that claimant's condition was 
 
            aggravated by work, and that returning to that some work 
 
            would be a "disaster."
 
            
 
                 Claimant was also seen for evaluation by Raymond R. 
 
            Crowe, M.D., a board certified psychiatrist who testified by 
 
            deposition on February 24, 1993.  Dr. Crowe evaluated 
 
            claimant on June 8, 1992.
 
            
 
                 Dr. Crowe found claimant to be mildly depressed, but 
 
            was unable to express an opinion as to the cause of his 
 
            panic attacks.  In particular, because he believes that the 
 
            field of psychiatry has so far failed to establish an 
 
            association or causal link between psychosocial stress 
 
            factors and anxiety attacks.  He had no opinion as to the 
 
            cause or causes of claimant's depressive disorder, but did 
 
            not believe that the illness itself was aggravated by work 
 
            activity; again, based on his view that depressive illness 
 
            is autonomous illness, and that there is no evidence that 
 
            environmental circumstances alter the course or the 
 
            treatability of the illness.
 
            
 
                 Nonetheless, Dr. Crowe believed that claimant's 
 
            perception of the work environment affected the course of 
 
            his illness, although he did not believe that it would be 
 
            helpful to know anything about the details of the job in 
 
            order to determine whether claimant could return to work.  
 
            No medical restrictions were recommended.
 
            
 
                 For several reasons, the opinion of Dr. Rinehart, as 
 
            buttressed by the opinion of Dr. Bernstein, is entitled to 
 
            greater weight than the opinion of Dr. Crowe.  Chief among 
 
            these is that Dr. Crowe believes claimant's conditions to be 
 
            entirely autonomous.  Under his theory, no mental illness 
 
            could apparently ever be causally connected to work.  This 
 
            opinion is contrary to agency experience and law.  See, for 
 
            example, Roach v. Dept. of Community Corrections, (Appeal 
 
            Decision, June 17, 1993).  In addition, Dr. Rinehart is a 
 
            treating physician who has seen claimant over an extended 
 
            period, rather than only once.  Presumably though, Dr. Crowe 
 
            would have the same opinion no matter how many times he saw 
 
            claimant, or any other worker claiming work related mental 
 
            injury.
 
            
 
                 Accordingly, it is found that claimant's condition of 
 
            major depressive disorder and anxiety attacks was, at least, 
 
            aggravated by employment conditions.
 
            
 
                 It is further held that claimant is capable of 
 
            returning to work, although not to employment as an 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            insurance adjuster.  Claimant is currently not seeking work, 
 
            since he feels that employment for which he might now be 
 
            suited, given his medical restrictions, is beneath his 
 
            dignity.  Claimant's current unemployed status is voluntary.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 Claimant bears 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).
 
            
 
                 The standard for determining whether a mental injury 
 
            arose out of and in the course of employment was recently 
 
            discussed in Ohnemus v. John Deere Davenport Works, File No. 
 
            816947 (App. Decn., February 26, 1990) and Kelley v. 
 
            Sheffield Care Center, File No. 872737 (App. Decn., October 
 
            31, 1991) as follows:
 
            
 
                    In order to prevail claimant must prove that he 
 
                 suffered a non-traumatically caused mental injury 
 
                 that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or physical condition caused by mental 
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                       We have recognized that in both civil and 
 
                    criminal actions causation in fact involves 
 
                    whether a particular event in fact caused 
 
                    certain consequences to occur.  Legal causation 
 
                    presents a question of whether the policy of 
 
                    the law will extend responsibility to those 
 
                    consequences which have in fact been produced 
 
                    by that event.  State v. Marti, 290 N.W.2d 570, 
 
                    584-85 (Iowa 1980).  Causation in fact presents 
 
                    an issue of fact while legal causation presents 
 
                    an issue of law.  Id.
 
            
 
                 That language was the basis of the language in 
 
                 Desgranges v. Dept of Human Services, (Appeal 
 
                 Decision, August 19, 1988) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                    ....
 
            
 
                    Not only must claimant prove that his work was 
 
                 the factual cause of his mental injury, claimant 
 
                 must also prove that the legal cause of his injury 
 
                 was his work.  In order to prove this legal 
 
                 causation claimant must prove that his temporary 
 
                 mental condition "resulted from a situation of 
 
                 greater dimensions than the day to day mental 
 
                 stresses and tensions which all employees must 
 
                 experience."  Swiss Colony v. Department of ICAR, 
 
                 240 N.W.2d 128, 130 (Wisc. 1976).
 
            
 
            Kelley v. Sheffield Care Center, File No. 872737 (App. 
 
            Decn., October 31, 1991).
 
            
 
                 Based on the opinions of Dr. Rinehart and Dr. 
 
            Bernstein, claimant has met his burden of proof on the 
 
            "factual causation" tests.  His mental condition was 
 
            aggravated by his employment with Farmers Insurance Group.
 
            
 
                 This leaves the "legal causation" test.  The 
 
            commissioner has recently ruled that claimant's work stress 
 
            conditions must be compared with the conditions of all 
 
            employees in general, not those employees in the same 
 
            occupation.  Roach v. Dept. of Community Corrections, (App. 
 
            Decn., June 17, 1993).
 
            
 
                 According to claimant, the stress he felt came in four 
 
            areas: overload, "improper" management, management 
 
            "harassment," and the job itself, which involved constant 
 
            adversarial contact with the public. 
 
            
 
                 Based on his long experience, claimant himself is in a 
 
            good position to testify as to whether his workload was 
 
            excessive.  He has pointed out that there were approximately 
 
            seven agents in his district in 1966, and over 30 in 1990.  
 
            Thirty agents clearly produced more PIF and more resultant 
 
            claims.  Yet, there were no additional adjusters.  Mr. 
 
            Werniger and Mr. Sparks both appealed to regional 
 
            headquarters for additional adjusters, requests that fell on 
 
            deaf ears.  Claimant has established that he was subjected 
 
            to a stressful overload of work.  This of course tends to 
 
            show what he calls "improper" management, or at least 
 
            management that subjected claimant to unnecessary stress.  
 
            Claimant's allegations of "harassment" are less well 
 
            founded, since his perceptions are questionable, both due to 
 
            his depressive and anxious condition and his personal emnity 
 
            directed towards Randy Horn.  Lastly, claimant prevails 
 
            because the job itself is inherently stressful, more so than 
 
            the stress normally to be expected in the case of employees 
 
            in general.  Most employees are not placed in 
 
            confrontational and adversarial relationships with the 
 
            public at large on a daily basis, with perhaps 50-70 cases 
 
            per month to be processed.  This is, of course, an inherent 
 
            part of insurance adjusting, but the comparison serves to 
 
            point the wisdom of the Roach approach.  For example, let us 
 
            assume that the widespread reports of high stress levels 
 
            affecting air traffic controllers are accurate.  If so, it 
 
            is predictable that the profession of air traffic controller 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            will result in an abnormally high number of mental injuries.  
 
            Again, if this is so, why should the industry not bear the 
 
            cost of disproportionate injuries, much as the cement mixing 
 
            industry may predictably be seen to cause a disproportionate 
 
            number of back injuries.
 
            
 
                 Based on all of the evidence, claimant established that 
 
            he was subjected to stress conditions at work greater than 
 
            and more damaging than those of every day employment life in 
 
            employees in general.  Therefore, claimant, by a 
 
            preponderance of the record evidence, established both 
 
            factual and legal causation.
 
            
 
                 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 has not returned to work, he is not medically 
 
            capable of returning to substantially similar employment, 
 
            and he has yet to reach maximum medical improvement 
 
            according to Dr. Rinehart.  Nonetheless, claimant is capable 
 
            of returning to work, although at a reduced and presumably 
 
            less remunerative position.  The writer has considered 
 
            awarding a running healing period, but finds this would be 
 
            unfair to defendants.  Claimant is at the present time 
 
            voluntarily unemployed because of his refusal to seek work 
 
            commensurate with his medical restrictions.  Claimant 
 
            should, accordingly, be thought of as having constructively 
 
            returned to work, because he could if he wanted.  Healing 
 
            period benefits shall be awarded from March 8, 1990 through 
 
            July 19, 1990 and October 19, 1990 through September 8, 
 
            1992, the date of Dr. Rinehart's deposition.  At the time of 
 
            this deposition, claimant was capable of returning to some 
 
            employment.  His subsequent employment is voluntarily in 
 
            nature.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant's entire work experience is in insurance 
 
            underwriting and adjusting.  At the present time, he cannot 
 
            return to either position due to his medical restrictions 
 
            against extensive public or co-worker contact.  Claimant is, 
 
            however, capable of clerical work, bookkeeping or other 
 
            office work not involving substantial public contact.  It is 
 
            predictable that such work will pay less than insurance 
 
            adjusting, especially given that claimant had, through his 
 
            long years of experience, reached earnings equivalent to 
 
            $915.00 per week per the parties' rate stipulation.
 
            
 
                 Claimant's age tends to leave him unsuited for advanced 
 
            retraining, but it is noted that he holds a college degree 
 
            and has many years of experience as a productive and valued 
 
            employee.  Considering these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent industrial disability equivalent to 50 
 
            percent of the body as a whole, or 250 weeks.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay intermittent healing period 
 
            benefits at the rate of five hundred forty and 33/100 
 
            dollars ($540.33) from March 8, 1990 through July 19, 1990 
 
            and October 19, 1990 through September 8, 1992 (117.714 
 
            weeks).
 
            
 
                 Defendants shall pay two hundred fifty (250) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            commencing September 9, 1992.
 
            
 
                 Defendants shall pay the medical expenses set forth on 
 
            exhibit 21, except for Dr. Bernstein's bill, which is 
 
            independently compensable as an independent evaluation to 
 
            which claimant is entitled under Iowa Code section 85.39.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.
 
            
 
                 Defendants shall have credit in the sum of fifty-one 
 
            thousand one hundred seventy-one and no/100 dollars 
 
            ($51,171.00) for sick pay/disability benefits under Iowa 
 
            Code section 85.38(2).
 
            
 
                 Costs of this action are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert R Rush
 
            Mr Matthew Nagle
 
            Attorneys at Law
 
            526 Second Avenue SE
 
            P O Box 2457
 
            Cedar Rapids Iowa 52406
 
            
 
            Mr James E Shipman
 
            Attorney at Law
 
            1200 Firstar Bank Building
 
            Cedar Rapids Iowa 52401
 
            
 
 
            
 
            
 
            
 
            
 
                                                2901;3700;2204;1108.20
 
                                                Filed February 28, 1994
 
                                                DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOHN J. TONE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 977785
 
            vs.                           :
 
                                                A R B I T R A T I O N
 
            FARMERS INSURANCE GROUP OF    :
 
            COMPANIES,                    :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            TRUCK INSURANCE EXCHANGE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2901; 3700
 
            In "mental-mental" case, claimant for the first time 
 
            disclosed the existence of another doctor during his direct 
 
            examination at hearing, because he did not want defendants 
 
            "screwing with" that valued physician.  Defendants' 
 
            immediate motion for sanctions was denied, largely because 
 
            claimant indicated he had seen the physician for the first 
 
            time after discovery deadlines had closed.  However, 
 
            claimant was ordered to provide defendants a patient waiver, 
 
            and defendants were granted 30 days to move for further 
 
            relief if an examination of the doctors' records established 
 
            prejudice.
 
            Defendants so moved after examining the medical records.  
 
            However, the motion was overruled in the arbitration 
 
            decision.  First, defendants' proper remedy was to move for 
 
            continuance along with imposition of sanctions, which they 
 
            did not do (although the effect of the ruling was largely 
 
            the same).  Defendants' current motion did not seek 
 
            reopening of the record. Although the doctor's records were 
 
            clearly relevant to this dispute (a serious health problem, 
 
            such as disclosed, is an independent source of stress), it 
 
            was of comparatively minor impact in this case, where 
 
            claimant last worked in 1990 and had symptoms dating back to 
 
            1984.  Claimant first learned of the serious health problem 
 
            on April 22, 1993.  Also, claimant objected to the two 
 
            interrogatories which defendants rely upon to show discovery 
 
            misconduct.  No motion to compel was presented to the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            agency.  Iowa R.Civ.P. 126(a) provides that an interrogatory 
 
            shall be answered "unless objected to."  In both cases, 
 
            claimant went on to answer the interrogatory "without 
 
            waiving" his objections.  The practice of simultaneously 
 
            objecting to and answering an interrogatory would not be 
 
            approved of if the answer were materially false or 
 
            incomplete when made, but such was not the case here.  
 
            Nonetheless, claimant himself recognized that his secretive 
 
            conduct was wrongful; this was taken into account and had a 
 
            substantial adverse impact on his credibility.
 
            After the record was closed, claimant also moved for 
 
            sanctions based on claimed discovery misconduct.  An 
 
            interrogatory to defendants asked whether any written or 
 
            oral statements had been obtained, and if so, seeking other 
 
            details.  Defendants' answer failed to disclose that 
 
            claimant's last supervisor took taped statements from five 
 
            other employees at about the time claimant left work.  When 
 
            that supervisor indicated that such statements had been 
 
            taken during his deposition, claimant twice formally and 
 
            once informally requested supplementation.  Defendants wrote 
 
            only that they were "not able to locate" any tapes or 
 
            transcripts.  However, three months after the record was 
 
            closed, defendants for the first time disclosed that 
 
            cassette tapes of the statements had been "discovered" one 
 
            month earlier.  Defendants offered no explanation for the 
 
            one month delay in disclosure.  Although the statements 
 
            might have been ruled protected as work product under Iowa 
 
            R.Civ.P. 122(c), claimant was foreclosed from litigating the 
 
            discoverablility of those statements by defendants' wrongful 
 
            failure to disclose that they existed.  This wrongful 
 
            conduct continued after multiple specific requests for 
 
            supplementation.  The arbitration decision ruled that 
 
            sanctions were appropriate.  Each and every one of 
 
            defendants' exhibits, the testimony of defense witnesses and 
 
            the cross-examination of claimant's witnesses were stricken 
 
            from the record as a sanction.
 
            
 
            2204; 1108.20
 
            Claimant, a longtime insurance adjuster, developed disabling 
 
            mental impairment due to the inherent stress of his 
 
            confrontational work and gradually increasing work overload.  
 
            His job stress was to be compared with employees in general, 
 
            not insurance adjusters in specific under Roach v. Dep't of 
 
            Community Corrections.  Having established both factual and 
 
            legal causation, claimant was awarded 50 percent industrial 
 
            disability.
 
            
 
 
         
 
         
 
         
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         STEVEN H. COLYN,    
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                 File No. 977840
 
         MERCY HOSPITAL MEDICAL CENTER,
 
                                              A R B I T R A T I O N
 
              Employer, 
 
                                                 D E C I S I O N
 
         and       
 
                   
 
         RELIANCE INSURANCE COMPANY,   
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
              
 
              This is a proceeding in arbitration brought by Steven Colyn, 
 
         claimant, against Mercy Hospital Medical Center, employer, 
 
         hereinafter referred to as Mercy, and Reliance Insurance Company, 
 
         insurance carrier, defendants, for workers' compensation benefits 
 
         as a result of an alleged injury on January 23, 1991.   On 
 
         February 10, 1994, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.         
 
                   
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I. Whether claimant received an injury arising out of and in 
 
         the course of  employment; 
 
         
 
              II. The extent of claimant's entitlement to disability 
 
         benefits; and
 
         
 
              III. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
         
 

 
         
 
         Page   2
 
         
 
 
 
                              FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants placed claimant's credibility at issue during cross- 
 
         examination as to the nature and extent of the injury and 
 
         disability.   From his demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              Claimant worked for Mercy as a computer operator.  In this 
 
         job he was required to routinely lift 70-pound boxes of printer 
 
         paper.   However, other than such lifting, the job was sedentary.
 
         
 
              Claimant asserts that he suffered a work injury to his left 
 
         shoulder on January 23, 1991 when he was lifting paper and while 
 
         he was sitting in his chair at work.   Claimant reported  to the 
 
         Mercy employee health department and reported to David Berg, 
 
         D.O., that he had pain for approximately two weeks and was doing 
 
         a lot of lifting at work.  Dr. Berg diagnosed probable 
 
         suprascapular nerve injury but noted atrophy of the muscles which 
 
         indicated to him a long-term injury.  Consequently, he noted on 
 
         the report that the injury was "questionably work-related."    
 
         Claimant contends that in subsequent medical bills submitted by 
 
         Dr. Berg, the condition was marked "work related."  However, a 
 
         Mercy staff person testified that this was a confusing part of 
 
         the form and that only clerks fill this out to indicate that 
 
         Mercy would be paying the bills.
 
         
 
              Claimant was referred for care to Peter Wirtz, M.D., who 
 
         also found infraspinatus atrophy and weakness and suggested 
 
         evaluation by a neurologist.  
 
         
 
              Claimant's symptoms continued and he was eventually referred 
 
         to Douglas Koontz, M.D., a neurosurgeon who also diagnosed nerve 
 
         entrapment and gave claimant two options, physical therapy or 
 
         surgery.  Claimant then underwent therapy.
 
         
 
              Claimant eventually quit Mercy due to his dislike of working 
 
         conditions at the hospital not his health but stated that he did 
 
         experience continuing symptoms which bothered him and his 
 
         attitude at Mercy.
 
         
 
              Claimant continues to have shoulder symptoms and has been 
 
         given an impairment rating for this left shoulder problems.
 
         
 
              The only doctor other than Dr. Berg to render an opinion as 
 
         to the work relatedness of the left shoulder condition has been 
 
         Dr. Koontz who opines that many things could be the cause but 
 
         that he could not pinpoint claimant's work as a cause.
 
         
 
              Claimant argues that Dr. Berg has made an opinion that the 
 
         condition is work-related.  Claimant has not shown this.  The 
 
         assertion that the encircled portions of the bills were the work 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         of Dr. Berg or by persons under his instruction is controverted.   
 
         The only clear opinion in the record was his opinion at the time 
 
         of the first office visit that the matter was undetermined.  I 
 
         would agree with claimant that the views of Dr. Koontz appear to 
 
         suggest that he would only find causal connection if the work was 
 
         the only cause and this is not the law.  
 
         
 
              However, there was no convincing opinion one way or another 
 
         from a physician on the work relatedness of the shoulder 
 
         problems.  Turning that to the lay testimony, we find that 
 
         although claimant did lift routinely at work, he is also a 
 
         farmer.  He admitted at hearing that his farm work was more 
 
         strenuous than his work at Mercy.  Also, at about the same time 
 
         as the injury, claimant was involved in an auto accident in which 
 
         his car turned over.  Claimant states that his shoulder was not 
 
         injured in this accident.  However, such an incident may have set 
 
         up a change of events leading to the onset of symptoms a couple 
 
         of weeks later.  Consequently, no clear causal connection was 
 
         shown by lay testimony.    
 
         
 
              Therefore, the undersigned is unable to find a work injury 
 
         in this case.    This is not due to any lack of credibility of 
 
         claimant as he appeared credible at hearing.  The facts and the 
 
         medical opinions were just too conflicting and the undersigned 
 
         simply was unable to reach a conclusion one way or another.  
 
                   
 
                                  CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that claimant received an injury arising out of and in 
 
         the course of employment.  The words "out of" refer to the cause 
 
         or source of the injury.  The words "in the course of" refer to 
 
         the time and place and circumstances of the injury. See 
 
         generally, Cedar Rapids, Comm. Sch.  Dist. v. Cady, 278 N.W. 2d 
 
         298 (Iowa 1979);  Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W. 2d 63 (1955).  An employer takes an employee subject 
 
         to any active or dormant health impairments. A work connected 
 
         injury which more than slightly aggravates the condition is 
 
         considered to be a personal injury.  Ziegler v. U.S. Gypsum, 252 
 
         Iowa 613, 620, 106 N.W. 2d 591 (1961), and cases cited therein.
 
         
 
              In the case sub judice,  the evidence was not clear or 
 
         convincing for claimant or the defense.  However, the burden of 
 
         persuasion is on the claimant and claimant cannot prevail when 
 
         the trier of fact is unable to make a finding.
 
                                                                        
 
         
 
                                      ORDER
 
              
 
              1.   Claimant's petition is dismissed with prejudice.
 
         
 
              2.  Claimant shall pay the costs of this action pursuant to 
 
         D.I.S. Rule 343 IAC 4.33.
 
         
 
              Signed and filed this ____ day of April, 1994.
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Lee P. Hook
 
         Attorney at Law
 
         405 6th Ave, Ste 700
 
         Des Moines, IA  50309
 
         
 
         Mr. Tom L. Drew
 
         P.O. Box 8476, Ste 105
 
         3209 Ingersoll Ave.
 
         Des Moines, IA  50312
 
         
 
         
 
 
            
 
            
 
            
 
            
 
                                                5-1803
 
                                                Filed April 5, 1994
 
                                                Larry P. Walshire
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            STEVEN H. COLYN,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 977840
 
            MERCY HOSPITAL MEDICAL CENTER,
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            RELIANCE INSURANCE COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
                 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
BRUCE SUTTER,    
 
            
 
     Claimant,                         File No. 977996
 
            
 
vs.                                     A P P E A L 
 
            
 
IOWA POWER,                            D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.
 
 
 
                               ISSUE
 
 
 
Claimant states the following issue on appeal:  "Did the deputy 
 
industrial commissioner correctly apply a mental-mental analysis to the 
 
claimant's injuries when the claimant obviously suffered both a 
 
physical and a mental injury?"
 
 
 
                           FINDINGS OF FACT
 
 
 
The findings of fact contained in the proposed agency decision filed 
 
July 20, 1994 are adopted as final agency action.
 
 
 
                         CONCLUSIONS OF LAW
 
 
 
The conclusions of law contained in the proposed agency decision filed 
 
July 20, 1994 are adopted as set forth below.  Segments designated by 
 
asterisks (*****) indicate portions of the language from the proposed 
 
agency decision that have been intentionally deleted and do not form a 
 
part of this final agency decision.  Segments designated by brackets ([ 
 
]) indicate language that is in addition to the language of the 
 
proposed agency decision.
 
 
 
The first issue to address is whether claimant sustained an injury on 
 
March 13, 1991, which arose out of and in the course of his employment. 
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. App. P. 14(f).
 
 
 
     *****
 
 
 
[Nontraumatically caused mental injuries are compensable under Iowa 
 
Code section 85.3(1).  Dunlavey v. Economy Fire and Casualty Co., 
 
93-1429, slip op., at 17 (Iowa, January 18, 1995).
 
 
 
Under Dunlavey, mental injuries caused by work-related stress are 
 

 
 
 
 
 
 
 
 
 
compensable if, after demonstrating medical causation, the employee 
 
shows that the mental injury was caused by work place stress of greater 
 
magnitude than the day to day mental stresses experienced by other 
 
workers employed in the same or similar jobs, regardless of their 
 
employer.  Dunlavey at 35.
 
 
 
In other words, both medical and legal causation must be resolved in 
 
claimant's favor before an injury arising out of and in the course of 
 
the employment can be established.  To establish medical causation, the 
 
employee must show that the stresses and tensions arising from the work 
 
environment are a proximate cause of the employee's mental 
 
difficulties.  If the medical causation issue is resolved in favor of 
 
the employee, legal causation is examined.  Legal causation involves a 
 
determination of whether the work stresses and tensions the employee 
 
experienced, when viewed objectively and not as the employee perceived 
 
them, were of greater magnitude than the day to day mental stresses of 
 
workers employed in the same or similar jobs experience routinely 
 
regardless of their employer.
 
 
 
The employee has the burden to establish the requisite legal causation. 
 
Evidence [of stresses experienced by] workers with similar jobs 
 
employed by a different employer is relevant; evidence of the stresses 
 
of other workers employed by the same employer in the same or similar 
 
jobs will usually be most persuasive and determinative on the issue, 
 
however.  Dunlavey at 35, 36.]
 
 
 
In the case at bar, claimant has felt certain anxieties and pressure 
 
about his working conditions and assignments.  He believes pressure 
 
associated with his job duties has affected his ability to work, his 
 
overall health, his relationship with his family, and his sense of 
 
financial security.
 
 
 
***** Claimant feels anxious about his health, his financial 
 
well-being, his family and the ability to continue performing his 
 
current job.  However, the main focus of claimant's claim stems from 
 
his concern about his health.  The record certainly indicates that this 
 
is a valid concern; claimant has experienced some frightening episodes 
 
over the last several years, including several fainting spells and at 
 
least one heart attack.  Yet, the defendant employer in this case 
 
cannot be held responsible for claimant's growing concern over his 
 
health. ***** All workers [in claimant's occupation] who experience 
 
poor health are concerned about their ability to continue working.
 
 
 
Likewise, claimant is concerned about his family, whom he described as 
 
"young."  His youngest child is only five years of age, and claimant is 
 
55 years old.  Again, he has a valid concern in that he wants to 
 
continue to work at least until he is 65 so that he can adequately 
 
provide for his family; however, ***** all workers [in claimant's 
 
occupation] carry concern about whether they will have the ability to 
 
provide for themselves and their families. 
 
 
 
Claimant argues that the company is essentially setting him up for 
 
termination.  There is nothing in the record to substantiate his claim. 
 
According to the record, claimant has worked for the company for a 
 
number of years, and has been the subject of only one disciplinary 
 
hearing.  In fact, according to one witness, this matter was recently 
 
removed from claimant's personnel file. *****
 
 
 
Claimant has clearly not met his burden of proof.  He argues that the 
 
defendant is trying to terminate him.  He posits that he is not given 
 
qualified workers to help him.  He believes he is singled out and given 
 
harsher treatment, and more rules and regulations than other workers.
 
 
 
There is no objective evidence to substantiate any of claimant's 
 
arguments.  [Claimant appears to have been treated the same as other 
 
employees.]  He has not shown, even by a preponderance of the evidence, 
 

 
 
 
 
 
 
 
 
 
that his work situation was of greater dimensions than the day to day 
 
mental stresses and tensions that employees [in his occupation] 
 
experience.  [Claimant has not suffered a psychological injury as a 
 
result of the stress of his work conditions.]
 
 
 
[Claimant also urges that he is entitled to worker's compensation 
 
benefits because he has suffered a heart attack allegedly caused by a 
 
stressful disciplinary meeting with his supervisors.  Claimant argues 
 
that he has suffered a "mental-physical" injury in that the meeting 
 
caused the heart attack.
 
 
 
Claimant has offered the testimony of Dr. McNeil, a psychologist, to 
 
establish causal connection between the disciplinary meeting and the 
 
heart attack.  It is also noted that the heart attack occurred close in 
 
time to the hearing.  There is no medical evidence that contradicts 
 
this causal connection opinion.  It is found that claimant's heart 
 
attack on March 13, 1991 was caused by the stress of his disciplinary 
 
hearing.  Although there does not appear to have been any improper or 
 
coercive activities on the part of the employer at this hearing, 
 
nevertheless claimant's interpretation was that he was being "set up" 
 
for termination, and claimant's anxiety resulting from this apparently 
 
did contribute to his heart attack during one of the breaks in the 
 
hearing.
 
 
 
However, it is also noted that claimant had prior episodes of shortness 
 
of breath and other symptoms of heart attack on other occasions.  This 
 
suggests claimant had a preexisting heart condition prior to the March 
 
13, 1991 disciplinary hearing.  A heart condition that is aggravated by 
 
work conditions may constitute a work injury.
 
 
 
There is no medical testimony that claimant's heart attack on March 13, 
 
1991, has resulted in any physical impairment.  Claimant is still 
 
working.  Claimant has no work restrictions.  Claimant's physician, Dr. 
 
Kwatra, indicated that claimant was able to work.  Claimant himself 
 
described his condition as fit and able to work.  Claimant has not 
 
suffered a physical injury as a result of the March 13, 1991 heart 
 
attack.
 
 
 
Claimant argues that he has also suffered a "physical-mental" injury in 
 
that the heart attack caused him to develop an anxiety condition in 
 
that he worries he will suffer further heart attacks.
 
 
 
Claimant's anxiety condition is not the result of long-term stress in 
 
the workplace, as is common in the so-called "mental-mental" injury 
 
cases.  Rather, claimant bases his original mental injury on a one-time 
 
occurrence, the disciplinary hearing and heart attack.  Claimant's 
 
situation is unique in that it involves an alleged 
 
"mental-physical-mental" injury; that is, the stress of the 
 
disciplinary hearing (mental) caused the heart attack (physical) which 
 
in turn led to the anxiety condition (mental).  
 
 
 
In order to prevail, claimant must show by a preponderance of the 
 
evidence that (1) he suffered a mental injury at the disciplinary 
 
hearing; (2) that this mental injury in turn resulted in a physical 
 
injury; (3) that the physical injury in turn resulted in a second 
 
mental injury; and (4) that the physical injury or either of the mental 
 
injuries resulted in disability.  
 
 
 
Dr. McNeil's testimony notes that it is a natural reaction for one who 
 
has experienced a heart attack to be concerned over one's health.  
 
 
 
Claimant has not offered any evidence that the mental injury he 
 
allegedly suffered on March 13, 1991, caused him any disability.  
 
Although the stress of the disciplinary hearing may have led to the 
 
heart attack, the stress suffered by claimant on that date did not 
 
cause his anxiety condition.  He alleges that was caused later by 
 

 
 
 
 
 
 
 
 
 
concern over future heart attacks.  Claimant has not shown any 
 
disability as a result of the mental stress on March 13, 1991.
 
 
 
Claimant also has not offered any evidence that the physical injury he 
 
suffered on March 13, 1991, has resulted in any disability.  Although 
 
claimant did suffer chest pains later diagnosed as a heart attack, 
 
there is no showing that the heart attack resulted in any disability.  
 
Claimant has returned to work, without restrictions, and describes 
 
himself as fit. At most, claimant has suffered pain in the form of 
 
chest pains during the attack; there is no permanent impairment. 
 
Claimant has not shown any disability as a result of his physical 
 
injury on March 13, 1991.
 
 
 
Claimant has also not shown that he is disabled by his anxiety 
 
condition.  Claimant has testified that he is now worried about his 
 
health, but has shown little else.  Even assuming that this anxiety is 
 
directly caused by the March 13, 1991 disciplinary hearing and 
 
resulting heart attack, there is no showing that the condition is in 
 
any way disabling.  Claimant's work for defendant employer is almost 
 
entirely physical in nature.  Claimant works as a foreman for an 
 
electrical crew.  His anxiety has not been shown to have affected his 
 
ability to do this job; indeed, he has been able to continue working.
 
 
 
It is not necessary that claimant actually miss work or not return to 
 
his job in order to show that he has suffered a disability.  A rating 
 
of permanent impairment can constitute the basis for an award of 
 
industrial disability even in the absence of a loss of work.  However, 
 
in this case, claimant's anxiety condition has not been shown to affect 
 
his ability to work at his present job, and there is no evidence that 
 
the anxiety condition would hinder claimant's efforts to obtain or 
 
maintain employment in the future.  Basically, claimant has merely 
 
shown that he worries about his health.  He has not shown that he is 
 
disabled by this.
 
 
 
At most, claimant has shown only entitlement to temporary total 
 
disability benefits for the time he was off work recovering from his 
 
March 13, 1991 chest pains/heart attack, and any attendant medical 
 
expenses.  Claimant has not carried his burden of proof to show 
 
entitlement to any permanent disability benefits.]
 
 
 
WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                             ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That claimant take nothing from these proceedings. 
 
 
 
That claimant shall pay the costs of the appeal including the 
 
transcription of the hearing.  Defendant shall pay all other costs.
 
Signed and filed this ____ day of March, 1995.         
 
                                 _______________________________                 
 
                                 BYRON K. ORTON           
 
                                 INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Thomas J. Reilly
 
Attorney at Law
 
4900 University, Ste 200
 
Des Moines, Iowa 50311
 
 
 
Ms. Mary C. Nelson
 
Attorney at Law 
 
P.O. Box 657
 
Des Moines, Iowa 50303
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                    1101
 
                                    Filed March 24, 1995
 
                                    Byron K. Orton
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
BRUCE SUTTER,    
 
            
 
     Claimant,                           File No. 977996
 
            
 
vs.                                        A P P E A L 
 
            
 
IOWA POWER,                              D E C I S I O N
 
            
 
     Employer,   
 
     Self-Insured,    
 
     Defendant.       
 
________________________________________________________________
 
1101
 
Claimant failed to prove by a preponderance of the evidence that his 
 
anxiety disorder was caused by his work.  Claimant urged a 
 
"mental-physical-mental" injury.  Claimant was called into a 
 
confrontational meeting, which in turn caused him to suffer a heart 
 
attack, which in turn caused him to worry about his health.  The heart 
 
attack did not result in any physical impairment.  Claimant's anxiety 
 
over his health was not shown to be disabling.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
             ------------------------------------------------------------
 
            BRUCE SUTTER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 977996
 
            IOWA POWER,                   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ------------------------------------------------------------
 
           
 
            
 
                               STATEMENT OF THE CASE
 
            
 
                  This is a proceeding in arbitration brought by 
 
            claimant, Bruce Sutter, against his self-insured employer, 
 
            Iowa Power, Inc. n/k/a Midwest Power.
 
            
 
                 Claimant alleges that he sustained an injury on March 
 
            13, 1991 which arose out of and in the course of his 
 
            employment.  A hearing was held before the undersigned 
 
            deputy industrial commissioner on June 29, 1994, at Des 
 
            Moines, Iowa.  The evidence consists of live testimony from 
 
            the claimant, Michael McNeil, Ph.D., Bud McCauley (crew 
 
            supervisor for the defendant), and William Stowe (manager of 
 
            employer-employee relations for the defendant); joint 
 
            exhibits E, H 1-8, I and J; and, defendant's exhibits 1-5.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on March 13, 
 
            1991 which arose out of and in the course of his employment;
 
            
 
                 2.  Whether claimant is entitled to temporary total or 
 
            healing period benefits, or permanent partial disability 
 
            benefits; 
 
            
 
                 3.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27; and, 
 
            
 
                 4.  Whether defendant is entitled to credit for 
 
            benefits previously paid, pursuant to Iowa Code section 
 
            85.38 (2).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            reviewed all of the evidence received, and having presided 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            at the hearing, finds the following facts:
 
            
 
                 Claimant, Bruce Sutter, was born on January 24, 1939.  
 
            At the time of the hearing, he was 55 years of age.  Mr. 
 
            Sutter is married to Gloria, and they have four children, 
 
            whose are 5, 9, 13 and 16 years of age.  
 
            
 
                 Claimant graduated from Runnels High School in 1958.  
 
            
 
                 Claimant has worked for the defendant employer most of 
 
            his life, having started in the labor pool in 1959 as a 
 
            temporary worker.  Ultimately, claimant was hired as a 
 
            full-time laborer on January 1, 1966.  Throughout the years, 
 
            his jobs have included work on the tree crews; lineman; 
 
            journeyman lineman; substation journeyman; and, his current 
 
            position, foreman on the line crew.  
 
            
 
                 Claimant has had several episodes at work which 
 
            required medical attention.  In July of 1988, while digging 
 
            ditches at work, he experienced shortness of breath and 
 
            chest pains.  He sought treatment from the Methodist 
 
            Athletic Clinic, and was diagnosed with heat exhaustion.  He 
 
            returned to work.  
 
            
 
                 During the next year, claimant experienced the same 
 
            sensation, shortness of breath, while working.  He would 
 
            "back off" at work, and eventually, the feeling would 
 
            subside.  
 
            
 
                 In July of 1989, claimant was performing underground 
 
            digging work, and passed out.  He was taken to Iowa 
 
            Methodist Medical Center, was diagnosed as having had a 
 
            heart attack, and according to claimant, he underwent an 
 
            angiogram.  The only medical records which indicated his 
 
            hospital stay are found at joint exhibit 8.  
 
            
 
                 In November of 1990, claimant again experienced 
 
            shortness of breath and loss of consciousness.  Although he 
 
            initially testified that he had worked at his job through 
 
            the day, and passed out at home while he was cutting wood, 
 
            the evidence submitted by the defendant indicates that 
 
            claimant was on vacation chopping wood when he suffered a 
 
            heart attack.  In any event, he was taken to the hospital 
 
            and treated for approximately one week.  (Defendant's 
 
            Exhibit 3). 
 
            
 
                 Claimant returned to work six weeks after the heart 
 
            attack.  He believed the company was "more than pleased" 
 
            with his on-the-job performance, until March 3, 1991. 
 
            
 
                 On that date, claimant and his crew were working on an 
 
            assignment which required their presence in a residential 
 
            area of Ankeny.  Apparently, the work required working with 
 
            a myriad of switches and maps to correct the problem.  
 
            Claimant stated that the maps were outdated, and did not 
 
            accurately reflect underground equipment and work.  Claimant 
 
            testified that various telephone calls were placed to 
 
            appropriate supervisors, some of whom were unavailable.  
 
            
 
                 A customer complaint was filed with the company 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            concerning the work, or lack of work, demonstrated by the 
 
            workers.  Apparently, a portion of the complaint also 
 
            concerned claimant's failure to "urgently" request that a 
 
            supervisor be available in person or by telephone in order 
 
            to help solve the problems encountered at the job site.  (It 
 
            should be noted that a description of the complaint, and/or 
 
            a description of the complaints that were to be addressed at 
 
            the disciplinary hearing were not introduced as evidence at 
 
            the hearing.)  Claimant was "written up" for the complaint, 
 
            and was advised that a disciplinary hearing would be held.  
 
            Claimant, who had never in the past been the direct target 
 
            of a disciplinary hearing, was concerned about the 
 
            proceeding, which took place on March 13, 1991.  While he 
 
            thought that it would only take 15 to 20 minutes to explain 
 
            the events that had happened at the work site, the hearing 
 
            lasted longer.  Claimant described the process as an 
 
            "interrogation" and felt a tremendous amount of pressure to 
 
            explain everything that had happened at the work site.  He 
 
            complained that the company, represented by several lawyers, 
 
            an executive and other members of management did not ask 
 
            questions of other members of his crew about the events that 
 
            took place on March 3.   He stated that management brought 
 
            to the hearing the tapes of the telephone conversations made 
 
            and the maps used on March 3, 1991.
 
            
 
                 As the hearing proceeded, claimant experienced 
 
            shortness of breath and pains in his chest.  He went to get 
 
            a drink of water, and passed out.  Claimant's wife and an 
 
            ambulance were called; Mrs. Sutton arrived before the 
 
            ambulance, and took claimant to the doctor, and then to the 
 
            hospital.  
 
            
 
                 Since the disciplinary hearing on March 13, 1991, 
 
            claimant alleges that he suffers mental problems, including 
 
            difficulty with concentration.  He believes he is under a 
 
            great amount of pressure at work, and that management does 
 
            not assign "good" workers to him.  He feel that the company 
 
            is "leaning" on him, and that it conducts "abnormal checks" 
 
            on claimant's work.  Claimant stated that he is required to 
 
            bring in "sick slips" when he misses time from work on 
 
            account of illness.  Mr. Sutter feels a particular sense of 
 
            hostility from Skip Harsh, who is a manager at the Delaware 
 
            station, to which claimant is assigned.  Apparently, on 
 
            claimant's first day at this particular station 
 
            (approximately 7 years ago), Mr. Harsh met privately with 
 
            the claimant, and explained what was expected of him while 
 
            he was on the job, and also explained the various rules of 
 
            the work station.  According to claimant, not all work 
 
            centers have the same rules, but claimant had never been 
 
            subjected to this type of treatment in the past. 
 
            
 
                 He testified that his eating habits have changed, for 
 
            the worse, as he wakes up in the middle of the night and 
 
            eats things that he is not suppose to eat.  Currently, 
 
            claimant feels depressed and becomes irritable over small 
 
            things.  There has been a decrease in his social activities, 
 
            he feels grouchy, loses his temper and his sleep is 
 
            disturbed.  He complained that his mind "trips out" at work 
 
            sometimes, because he recalls yelling at his children 
 
            instead of concentrating on his work.  Claimant acknowledged 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that his work is inherently dangerous, and recognizes the 
 
            need for extreme caution while performing his daily 
 
            activities.  
 
            
 
                 Claimant stated on numerous occasions during the 
 
            hearing that his children are young, and he is concerned 
 
            about their futures.  In this vein, anticipates working 
 
            until he is 65 years of age so that he can adequately 
 
            provide for his family.  
 
            
 
                 After the disciplinary hearing, claimant spent 2 or 3 
 
            days in the hospital, and was released to return to work.  
 
            In September of 1993, claimant, at the behest of his lawyer, 
 
            sought a psychological evaluation from Michael McNeil, 
 
            Ph.D., a psychologist.  He administered the Minnesota 
 
            Multiphasic Personality Inventory 2 (MMPI-2) test to 
 
            "develop objective data on the [claimant's] personality 
 
            makeup."  (Jt. Ex. 4, p. 109).  Dr. McNeil diagnosed 
 
            claimant as having an anxiety disorder, and his report 
 
            supplies the following information:
 
            
 
                 Persons producing this configuration of scores are 
 
                 worried, tense, anxious, and uncomfortable.  They 
 
                 are typically depressed and having problems 
 
                 concentrating, thinking, and sleeping, and are 
 
                 also frequently fearful or phobic.  Somatic 
 
                 complaints are common, as are rumination and 
 
                 obsessive thoughts.  This individual indicates a 
 
                 great deal of self-criticism and strong dependency 
 
                 needs with low self-confidence.
 
            
 
                 Some of the more long-term features of the 
 
                 patient's personality indicated by the test 
 
                 results are his conventional, law-abiding belief 
 
                 system and self-image, and a tendency to shyness 
 
                 and isolation.
 
            
 
                 This individual's test responses overall suggest 
 
                 someone who feels overwhelmed by his problems and 
 
                 that he is losing his mind.  His rigid, 
 
                 conventional, and retiring manner all seem to 
 
                 indicate someone whose lack of flexibility and 
 
                 assertiveness have left him vulnerable to changes 
 
                 in his health status and to increased pressure and 
 
                 scrutiny at work.
 
            
 
                 Summary and Conclusions:
 
            
 
                 Mr. Sutter has worked for Midwest Power for close 
 
                 to thirty years and has managed for most of that 
 
                 time to cope with the demands of his job.  Since 
 
                 his 1989 heart attack, his ability to adapt and 
 
                 function has been subject to extreme stress, with 
 
                 resultant decompensation and reduced ability to 
 
                 cope.  There is a definite interactive effect, 
 
                 with his physical and psychological problems 
 
                 potentiating each other.  I see him as 
 
                 significantly psychologically impaired by his 
 
                 evident anxiety disorder.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
                    ....
 
            
 
                 In my opinion, this constitutes a 25% impairment 
 
                 due to a mental disorder.
 
            
 
            (Jt. Ex. 4, p. 108).
 
            
 
                 At that time, claimant did not seek any treatment, but 
 
            he returned to Dr. McNeil in February of 1994.  
 
            
 
                 On cross-examination, claimant offered that he had also 
 
            tapped the employee's assistance program (ASSIST) for help, 
 
            and that he and his wife are receiving counseling through 
 
            that program.  Apparently, claimant began spying on his 
 
            wife, who was seeing someone else.  An altercation ensued, 
 
            and charges were lodged against claimant.
 
            
 
                 Additionally, he explained that prior to a change in 
 
            the collective bargaining agreement, he usually supervised 
 
            three or four workers, but currently supervises one worker 
 
            while on the job.  
 
            
 
                 After each hospital stay, claimant was released to 
 
            return to work without restrictions.  Claimant stated that 
 
            he felt "physically, mentally and emotionally" capable of 
 
            performing his job duties.  
 
            
 
                 Michael McNeil, Ph.D., a psychologist testified at the 
 
            hearing.  His deposition is also in evidence.
 
            
 
                 Dr. McNeil believes claimant's onset of an anxiety 
 
            disorder was on March 13, 1991, and characterized the 
 
            disciplinary hearing as an interrogation about a "trivial" 
 
            matter.  He stated that "being put on the spot" triggered 
 
            claimant's collapse.  In establishing the 25 percent 
 
            impairment noted above, Dr. McNeil used the AMA Guides to 
 
            the Evaluation of Permanent Impairment, and factored in 
 
            claimant inability to engage in day-to-day problems, his 
 
            lack of social activities, his state of withdrawal from his 
 
            family and his inability to concentrate.  He went on to 
 
            state that claimant's condition was permanent, but 
 
            treatable.  
 
            
 
                 The results of the MMPI-II, administered by Dr. McNeil, 
 
            were valid in his opinion, and as far back as September, 
 
            1993, he recommended that claimant undergo counseling.  He 
 
            also stated that claimant was not the type of person who 
 
            would be comfortable seeking help for his problems.  
 
            
 
                 Bud McCauley also testified on behalf of the employer.  
 
            He has worked for the company for 35 years, and currently 
 
            holds the position as crew supervisor at the Delaware 
 
            station.  Prior to his current position in management, Mr. 
 
            McCauley served 15 years as a union steward and president of 
 
            the union for three years.  Currently, he is claimant's 
 
            supervisor, and he has known claimant for many years. 
 
            
 
                 Mr. McCauley attended the disciplinary hearing held on  
 
            March 13, 1991.  He stated that there was nothing unusual or 
 
            abnormal about the proceedings, or the attendants.  In 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            addition to claimant, other participants from the company 
 
            included Tom Turner (manager of human resources), William 
 
            Stowe (labor relations attorney), and Joe Judge (manager of 
 
            the Des Moines electrical system).  Mr. McCauley stated that 
 
            it was not unusual to have these people attend a 
 
            disciplinary proceeding.  
 
            
 
                 With respect to the assignment of crews, this witness 
 
            offered that he has a certain number of people to assign to 
 
            a certain number of jobs.  Journeyman are assigned to jobs 
 
            of a more technical nature; apprentices are assigned to the 
 
            remaining jobs.  Usually, claimant's crew consisted of an 
 
            apprentice, but not because Mr. McCauley intentionally 
 
            wanted claimant to have less experienced workers, but 
 
            because journeymen were needed to round out other crews.  He 
 
            also offered that all workers at the Delaware station were 
 
            required to bring in doctor slips when they lost time from 
 
            work due to illness.  
 
            
 
                 Mr. McCauley denied that the company was trying to 
 
            "build a file" on claimant so as to facilitate his 
 
            (claimant's) future firing.  This witness described claimant 
 
            as a hard worker who maintained a good safety record, and 
 
            who had not demonstrated a deterioration in his work.  Mr. 
 
            McCauley is aware of no complaints from the claimant 
 
            concerning the demands of his job and his inability to 
 
            perform or cope with the same. 
 
            
 
                 William Stowe also testified at the hearing.  He is the 
 
            manager of employer-employee relations at Midwest Power, a 
 
            position he has held for five and one-half years.  He is 
 
            responsible for the overall administration of hiring, 
 
            firing, contract enforcement/negotiations, and establishing 
 
            and enforcing drug and substance abuse policies.  He 
 
            regularly attends disciplinary proceedings, a process which 
 
            is used approximately 10 times per year.  
 
            
 
                 Mr. Stowe indicated that most complaints are thoroughly 
 
            investigated, but that special attention is used when a 
 
            complaint comes from a customer of Midwest Power.  
 
            Preliminary to any disciplinary proceedings, the workers 
 
            against whom the complaint is lodged are afforded union 
 
            representation and due process (notice of the complaint, and 
 
            an opportunity to be heard regarding the complaint).
 
            
 
                 In addition to the aforementioned people in attendance 
 
            at the disciplinary hearing, this witness offered that Curt 
 
            Larson and Skip Harsh were also at the proceeding.  The 
 
            union brought three people.  
 
            
 
                 Prior to a disciplinary hearing, a full investigation 
 
            of the complaint is conducted.  Depending on the particular 
 
            circumstances of each complaint, the company interviews any 
 
            or all members of the crew that is involved in the 
 
            complaint. 
 
            
 
                 Mr. Stowe believed that nothing of an unusual nature 
 
            occurred during the hearing.  It was held in a large 
 
            conference room, and claimant was given the opportunity to 
 
            explain the events which occurred on March 3, 1991.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 This witness also explained that since June 1, 1994, 
 
            the company had adopted a positive discipline program, which 
 
            involved removing punitive marks from workers' files, and 
 
            incorporating better investigations and correcting errant 
 
            behavior with better communications between labor and 
 
            management.
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant 
 
            sustained an injury on March 13, 1991, which arose out of 
 
            and in the course of his employment.  
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 In cases of nontraumatically-caused mental injury, the 
 
            industrial commissioner follows the "Wisconsin" rule which 
 
            is favored in 1B Larson The Law of Workmen's Compensation,
 
             42.23(b).  Desgranges v. Dep't of Human Services, File No. 
 
            760747 (App. August 19, 1988).
 
            
 
                 Under the "Wisconsin" rule, a nontraumatically-caused 
 
            mental injury is compensable only when the injury "resulted 
 
            from a situation of greater dimensions than the day-to-day 
 
            mental stresses and tensions which all employees must 
 
            experience."  Swiss Colony v. Dep't of Indus., L. & H. R., 
 
            72 Wis. 2d 46, 240 N.W.2d 128 (1976).  In other words, both 
 
            medical and legal causation must be resolved before finding 
 
            an injury arising out of employment.  The medical causation 
 
            issue involves an examination into the cause and effect 
 
            relationship between the stresses and tensions at work and 
 
            the mental difficulties.  If the medical causation issue is 
 
            resolved in favor of the claimant, legal causation is 
 
            examined.  Legal causation involves a determination of 
 
            whether the work stresses and tensions, when viewed 
 
            objectively and not as perceived by claimant, were "out of 
 
            the ordinary from the countless emotional strains and 
 
            differences that employees encounter daily without serious 
 
            mental injury."  School Dist. #1 v. Dep't of Indus., L. & H. 
 
            R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974).
 
            
 
                 In the case at bar, claimant has felt certain anxieties 
 
            and pressure about his working conditions and assignments.  
 
            He believes pressure associated with his job duties has 
 
            affected his ability to work, his overall health, his 
 
            relationship with his family, and his sense of financial 
 
            security.
 
            
 
                 The undersigned believes that claimant feels anxious 
 
            about his health, his financial well-being, his family and 
 
            the ability to continue performing his current job.  
 
            However, the main focus of claimant's claim stems from his 
 
            concern about his health.  The record certainly indicates 
 
            that this is a valid concern; claimant has experienced some 
 
            frightening episodes over the last several years, including 
 
            several fainting spells and at least one heart attack.  Yet, 
 
            the defendant employer in this case cannot be held 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            responsible for claimant's growing concern over his health.   
 
            The undersigned believes that all workers who experience 
 
            poor health are concerned about their ability to continue 
 
            working.
 
            
 
                 Likewise, claimant is concerned about his family, whom 
 
            he described as "young."  His youngest child is only five 
 
            years of age, and claimant is 55 years old.  Again, he has a 
 
            valid concern in that he wants to continue to work at least 
 
            until he is 65 so that he can adequately provide for his 
 
            family; however, once again, the undersigned believes that 
 
            all workers carry concern about whether they will have the 
 
            ability to provide for themselves and their families. 
 
            
 
                 Claimant argues that the company is essentially setting 
 
            him up for termination.  There is nothing in the record to 
 
            substantiate his claim.   According to the record, claimant 
 
            has worked for the company for a number of years, and has 
 
            been the subject of only one disciplinary hearing.  In fact, 
 
            according to one witness, this matter was recently removed 
 
            from claimant's personnel file.  Any time a worker is 
 
            disciplined, there is a sense of paranoia and animosity 
 
            between labor and management.  This is unfortunate, but not 
 
            uncommon.
 
            
 
                 Claimant has clearly not met his burden of proof.  He 
 
            argues that the defendant is trying to terminate him.  He 
 
            posits that he is not given qualified workers to help him.  
 
            He believes he is singled out and given harsher treatment, 
 
            and more rules and regulations than other workers.
 
            
 
                 There is no objective evidence to substantiate any of 
 
            claimant's arguments.  He has not shown, even by a 
 
            preponderance of the evidence, that his work situation was 
 
            of greater dimensions than the day to day mental stresses 
 
            and tensions that all employees experience.
 
            
 
                 Claimant may have shown that his work was the factual 
 
            (or medical) cause of his mental condition.  He was a 
 
            credible witness, and Dr. McNeil stated that claimant's 
 
            anxiety about his work caused the anxiety disorder.
 
            
 
                 However, claimant must establish both legal and medical 
 
            causation.  He has not, and takes nothing from these 
 
            proceedings.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings. 
 
            
 
                 That each party shall pay their respective costs 
 
            associated with this claim. 
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Reilly
 
            Attorney at Law
 
            4900 University  Ste 200
 
            Des Moines IA 50311
 
            
 
            Ms Mary C Nelson
 
            Attorney at Law
 
            Iowa Public Service
 
            P O Box 657
 
            Des Moines IA 50303
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1101
 
                                               Filed July 20, 1994
 
                                               Patricia J. Lantz
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
             ------------------------------------------------------------
 
            BRUCE SUTTER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 977996
 
            IOWA POWER,                   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :        D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ------------------------------------------------------------
 
            5-1101
 
            
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that his anxiety disorder was caused by his work.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                    2700
 
                                    Filed March 3, 1995
 
                                    LARRY P. WALSHIRE
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
____________________________________________________________
 
          
 
STEVE RILEY,  
 
                                    File No. 978489
 
     Claimant, 
 
                                  M E M O R A N D U M
 
vs.       
 
                                  D E C I S I O N   O N
 
HEARTLAND EXPRESS, 
 
                                   A L T E R N A T E
 
     Employer, 
 
                                    M E D I C A L
 
and       
 
                                      C A R E
 
GREAT WEST CASUALTY COMPANY, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
2700
 
Defendants' recent change in care was reversed.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
STEVE RILEY,  
 
                                    File No. 978489
 
     Claimant, 
 
                                  M E M O R A N D U M
 
vs.       
 
                                 D E C I S I O N   O N
 
HEARTLAND EXPRESS, 
 
                                  A L T E R N A T E
 
     Employer, 
 
                                    M E D I C A L
 
and       
 
                                       C A R E
 
GREAT WEST CASUALTY COMPANY, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
An original notice and petition seeking alternate medical care was 
 
filed by claimant on February 16, 1995 under rule 343 IAC 4.48.  A 
 
telephonic hearing on this petition was held on March 2, 1995.  All 
 
parties were given proper notice.
 
 
 
This medical care dispute arose over care being given by defendants as 
 
a result of a work injury on January 23, 1991, liability for which is 
 
admitted by defendants.  The entire hearing was recorded by audio tape. 
 
 
 
 A detailed decision containing findings of fact and conclusions of law 
 
was dictated into the record on the date of the hearing.  This decision 
 
will not be reproduced in typewritten form unless there is an appeal 
 
from this decision at which time the procedures under the 
 
administrative code are to be followed.  Any rights of appeal will run 
 
from the date the decision was dictated into the record and this 
 
memorandum is solely for the purpose of the agency file.
 
 
 
In the decision, it was ordered that claimant's petition for alternate 
 
care be granted and that care be maintained under Dr. Gocio and 
 
specifically pain center care currently being given by Dr. Boos.  This 
 
decision was rendered on March 2, 1995.
 
 
 
Also, it should be noted that the motion for protective order was 
 
denied with reference to an independent evaluation under Iowa Code 
 
section 85.39 and that claimant shall be evaluated by Dr. Boulden here 
 
in Des Moines with defendants assuming the costs of travel.  The 
 
discovery completion dates set forth in the hearing assignment order 
 
for the May 1995 hearing is amended to allow for such an evaluation and 
 
any rebuttal evaluation by claimant.
 
 
 
 
 
 
 
This memorandum of decision is signed and filed  this ____ day of 
 
March, 1995.                      
 
                                   ______________________________                              
 
                                  LARRY P. WALSHIRE                            
 
                                  DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
 
 
Copies To:
 
 
 
Mr. Harry W. Dahl, Sr.
 
Attorney at Law
 
974 73rd St  STE 16
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Des Moines  IA  50312
 
 
 
Mr. Stephen W. Spencer
 
Attorney at Law
 
PO Box 9130
 
Des Moines  IA  50306-9130