Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                     :
 
         LEILA BIX,       :
 
                     :
 
              Claimant,   :
 
                     :
 
         vs.         :        File Nos. 981358
 
                     :                  930740
 
         EXCEL CORPORATION,    :
 
                     :          A P P E A L
 
              Employer,   :
 
                     :        D E C I S I O N
 
         and         :
 
                     :
 
         CNA INSURANCE COMPANY,     :
 
                     :
 
              Insurance Carrier,    :
 
              Defendants.      :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 26, 1992 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         Claimant has suffered numerous injuries to her back.  Some of 
 
         these injuries occurred while working as a nurse's aide for a 
 
         previous employer.  However, the record does not contain evidence 
 
         that the prior back injuries resulted in any permanent condition.  
 
         Claimant did not consult a doctor for her back during the three 
 
         years between her back injury as a nurse's aide and her back 
 
         injury with defendant.  A pre-employment physical did not reveal 
 
         any back condition.  Any back condition from claimant's prior 
 
         injuries as a nurse's aide were either resolved, or latent.  No 
 
         apportionment for those injuries is required.
 
         Claimant's December 29, 1990 forklift injury to her back did not 
 
         result in further permanent impairment according to Dr. Berg.  An 
 
         apportionment for that injury is not appropriate.  Claimant's 
 
         current industrial disability is caused by her October 12, 1989 
 
         injury.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of January, 1993.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 

 
         
 
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         Copies To:
 
         
 
         Mr. H. Edwin Detlie
 
         Attorney at Law
 
         114 North Market
 
         Ottumwa, Iowa  52501-2912
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         218 6th Avenue STE 300
 
         P O Box 9130
 
         Des Moines, Iowa  50306
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LEILA BIX,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File Nos. 981357
 
            EXCEL CORPORATION,            :                  930740
 
                                          :                  981358
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :     A R B I T R A T I O N
 
            ______________________________:
 
                                          :       D E C I S I O N
 
            LEILA BIX,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            EXCEL CORPORATION,            :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Leila Bix claims to have sustained work 
 
            related injuries to her right arm on March 3, 1989 (number 
 
            981357) and to her back on October 12, 1989 (number 930740) 
 
            and December 30, 1990 (number 981358).  She has filed 
 
            petitions in arbitration in each case seeking benefits under 
 
            the Iowa Workers' Compensation Act from her employer, Excel 
 
            Corporation ("Excel").  Excel was insured for workers' 
 
            compensation purposes by CNA Insurance Companies ("CNA") 
 
            with respect to the 1989 injuries, but was self-insured with 
 
            respect to the 1990 injury.
 
            
 
                 These causes came on for hearing in Des Moines, Iowa on 
 
            August 12, 1992.  Testimony was received from claimant and 
 
            Mary Brooks.  The depositions of Donald Berg, M.D., and 
 
            James Weinstein, D.O., are also in evidence.  Joint exhibits 
 
            1-20 were received.  Defendants' exhibit A was excluded upon 
 
            objection.
 
            
 
                 After the hearing commenced, claimant conceded that she 
 
            had sustained no permanent disability to the right arm and 
 
            moved to dismiss file number 981357.  Because the voluntary 
 

 
            
 
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            dismissal was within ten days of hearing, it required 
 
            approval under Iowa Rule of Civil Procedure 215.  As no 
 
            objection was interposed, approval was granted; case number 
 
            981357 stands dismissed without prejudice.
 
            
 
                                      ISSUES
 
            
 
                 In case number 930740, the parties have stipulated that 
 
            claimant sustained an injury arising out of and in the 
 
            course of employment on October 12, 1989, that the injury 
 
            caused temporary disability from October 13 through October 
 
            24, 1989 and from March 5 through March 8, 1990, that all 
 
            requested medical benefits have been paid by defendants, and 
 
            that a total of $468.52 was voluntarily paid in benefits 
 
            prior to hearing.
 
            
 
                 The parties further stipulated to a compensation rate 
 
            of $204.54 based upon gross weekly earnings of $300.00, a 
 
            marital status of married and entitlement to two exemptions.  
 
            The Guide to Iowa Workers' Compensation Claim Handling shows 
 
            that an individual so situated is entitled to a benefit rate 
 
            of $195.51.  The stipulations as to gross weekly earnings, 
 
            marital status and number of exemptions are stipulations of 
 
            fact.  The stipulation as to the proper rate is a legal 
 
            conclusion based upon those facts.  The incorrect 
 
            stipulation as to rate is accordingly rejected.  Based upon 
 
            the factual stipulations, claimant's rate is $195.51 per 
 
            week.
 
            
 
                 Issues presented for resolution in file number 930740 
 
            include:
 
            
 
                 1.  Whether the work injury caused permanent 
 
            disability;
 
            
 
                 2.  The extent of permanent disability, if any.
 
            
 
                 In file number 981358, claimant and Excel Corporation 
 
            have stipulated to the existence of an employment 
 
            relationship and to the rate of compensation ($238.43).
 
            
 
                 Issues presented for resolution in case number 981358 
 
            include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment on December 30, 1990;
 
            
 
                 2.  Whether the injury caused temporary or permanent 
 
            disability;
 
            
 
                 3.  The extent of temporary and permanent disability, 
 
            if any;
 
            
 
                 4.  Entitlement to medical benefits.
 
            
 
                 With respect to medical benefits, the parties have 
 
            stipulated that both medical treatment and the cost thereof 
 
            are fair and reasonable.  Causal connection to the work 
 
            injury is disputed, as is whether the expenses were 
 
            authorized by the defendant.  However, the authorization 
 

 
            
 
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            defense was ruled invalid because Excel disputes whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of employment.  By denying liability, defendant 
 
            waives the right to control medical care.  Barnhart v. MAQ, 
 
            Incorporated, 1 Iowa Indus. Comm'r Rep. 16 (Appeal Dec. 
 
            1981).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Leila Bix is a right handed 53-year-old woman of modest 
 
            stature (4 feet 11 inches, 130 pounds).  Educationally, she 
 
            failed to be advanced from the eighth grade and dropped out 
 
            of school while repeating the year.  Her only further 
 
            training is some 60 hours of on-the-job training as a 
 
            nurse's aide.
 
            
 
                 The record is a little incomplete as to claimant's work 
 
            history.  She worked as a solderer in a electronics factory 
 
            for about two years, manufactured cardboard boxes for 
 
            several months, and worked as a nurse's aide from at least 
 
            1984 to 1988.
 
            
 
                 The occupation of nurse's aide is notorious for the 
 
            requirement of frequent heavy lifting and manipulation of 
 
            patients.  Chart notes (of imperfect legibility) prepared by 
 
            D. Dale Emerson, M.D., show three work incidents involving 
 
            claimant's back.  On April 26, 1985, claimant "heard a pop" 
 
            in her back while lifting a male patient into a shower 
 
            chair.  Dr. Emerson diagnosed acute back strain and 
 
            administered a steroid injection and medications.  By May 
 
            2nd, claimant was feeling better and wanted to return to 
 
            work.  
 
            
 
                 Later chart notes reflected lumbar pain developing when 
 
            claimant lifted a patient on October 18, 1985 at work.  
 
            Claimant demonstrated lumbar spasms and was diagnosed as 
 
            suffering acute back strain.  However, chart notes of 
 
            October 28 show the strain was resolved and claimant had "no 
 
            pain at all."
 
            
 
                 Dr. Emerson saw claimant again in October 1986 when she 
 
            complained of twisting her back while putting a patient in 
 
            bed the night before.  Acute back strain was again 
 
            diagnosed.  Two weeks of workers' compensation benefits were 
 
            paid.  By October 20, chart notes show that claimant still 
 
            had a little tender spot, but she was returned to work and 
 
            the problem deemed "resolved."  Dr. Emerson does not record 
 
            further back complaints through his most recent chart note, 
 
            June 15, 1987.
 
            
 
                 J. J. Gleich, M.D., interpreted a radiographic study of 
 
            the lumbar spine as showing no fracture or destructive 
 
            process, normal disc space, but considerable straightening 
 
            of the normal lumbar curvature consistent with muscular 
 
            spasm.  
 
            
 
                 On February 17, 1988, claimant applied for work with 
 
            Excel Corporation, a meat packing business.  A 
 

 
            
 
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            pre-employment physical was performed by Mary Brooks, R.N.  
 
            Ms. Brooks was then occupational health nurse for Excel and 
 
            is now assistant human resources manager.  Claimant gave Ms. 
 
            Brooks a history of having sprained her back in 1986 and 
 
            losing one week's time, but having no problems since.  Ms. 
 
            Brooks rated claimant as 10/10 in each of seven categories 
 
            of strength and flexibility.  
 
            
 
                 Claimant's testimony that she suffered no back problems 
 
            between 1986 and the stipulated injury of October 12, 1989 
 
            is accepted as fact.
 
            
 
                 On October 12, 1989, claimant was employed wrapping and 
 
            bagging pork tenderloins.  While setting up to work, she 
 
            bent over to pick up several items from the floor when she 
 
            was struck by a carelessly operated fork lift truck.  The 
 
            driver of the fork lift did not realize he had struck 
 
            claimant, and continued to push her for approximately 15 
 
            yards before someone shouted at him to stop.
 
            
 
                 Ms. Bix was first treated by the company physician, 
 
            Donald Berg, M.D.  Dr. Berg is a board certified orthopedic 
 
            surgeon who testified by deposition on July 28, 1992.
 
            
 
                 Dr. Berg diagnosed sprain and strain of the muscles and 
 
            ligaments of the lower back, noting evidence of muscle 
 
            spasms throughout the back.  He released claimant to return 
 
            to work on October 25, but with no lifting, twisting or 
 
            bending.  By December 18, claimant still complained of 
 
            stiffness and soreness.  Range of motion was limited with 
 
            evidence of muscle tightness, but no muscle spasm.  Claimant 
 
            was given a ten pound lifting limit, a limit which has 
 
            fluctuated over time, but is similar to the current lifting 
 
            restriction Dr. Berg recommends (10-25 pounds, depending on 
 
            how she is feeling).
 
            
 
                 Unhappily, Ms. Bix has continued to suffer back pain 
 
            and loss of range of motion.  She has also had a number of 
 
            subsequent back incidents.  She slipped on a liquid on the 
 
            company cafeteria floor on January 31, 1990 and developed 
 
            renewed muscle spasm.  The pain went away after a few days, 
 
            and Dr. Berg did not feel there was any new injury.  Muscle 
 
            spasms were seen again on March 5, and claimant was taken 
 
            off work through March 8.  She was released to light duty 
 
            work with a five pound lifting limit, and Dr. Berg charted 
 
            his opinion that: "it would be a good idea for her to get 
 
            into another job field."
 
            
 
                 On August 24, claimant suffered another lifting 
 
            incident at work, which Dr. Berg felt was merely an 
 
            aggravation of the preexisting problem.  He again charted a 
 
            recommendation that claimant find another line of work.  
 
            Another flare-up of discomfort was noted on December 14, 
 
            1990, leading to additional weight restriction.
 
            
 
                 On December 29 or 30, 1990, after Excel became 
 
            self-insured for workers' compensation purposes, claimant 
 
            suffered another fork lift accident.  Dr. Berg charted 
 
            complaints of back strain and muscle spasm, but wrote on 
 
            June 19, 1992 that the incident did not result in additional 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            permanent impairment.  In April 1991, claimant had yet a 
 
            third fork lift injury, which again resulted in muscle spasm 
 
            and limited flexibility of the back.  
 
            
 
                 Due to doctor's restrictions, claimant can no longer 
 
            work her "bid" job, and is classified as base labor.  Wages 
 
            are now $0.25 per hour less.
 
            
 
                 Dr. Berg finds that claimant has some minor impairment 
 
            (4-5%), although his diagnosis is a little unclear.  In his 
 
            deposition testimony, he speaks primarily of strain or soft 
 
            tissue injury, while in a letter of October 2, 1990, he 
 
            writes that claimant had rather marked degenerative 
 
            osteoarthritis and degenerative disc in the back which he 
 
            believed precludes her from long term work doing physical 
 
            labor.  Of the various incidents at Excel, Dr. Berg ascribes 
 
            impairment to the October 1989 injury.
 
            
 
                 However, Dr. Berg was not aware of the three back 
 
            incidents in 1985 and 1986.  When made aware of these 
 
            incidents during his deposition, he agreed that he was 
 
            unable to state within a reasonable degree of medical 
 
            certainty that claimant's condition arose "strictly" out of 
 
            the 1989 injury.  This question is interpreted as asking 
 
            whether the 1989 incident was the sole cause of impairment.
 
            
 
                 However, he testified further:
 
            
 
                    Q.  Doctor, if Leila Bix indicated that after 
 
                 having some pain in 1986 she had not had any 
 
                 problems until she saw -- or until just before she 
 
                 saw you in 1989, if that were the situation, would 
 
                 that lead you to conclude that the October, '89, 
 
                 incident was a separate incident than anything 
 
                 previously, than whatever the previous condition 
 
                 was?
 
            
 
                    A.  It probably would if she wasn't having 
 
                 ongoing problems.  Again, I have no records of 
 
                 whether -- how much ongoing problems she was 
 
                 having here, and I have no prior knowledge of a 
 
                 problem.
 
            
 
                    But, you know, if she had a period of time 
 
                 where there was no -- no problems, essentially 
 
                 well, and at full motion, then I would tend to 
 
                 state that her problem would be related to October 
 
                 12th of '89.  If during that period prior to that, 
 
                 she did have problems, ongoing problems, then I'm 
 
                 not so sure it would be related to that.  It might 
 
                 be related to the prior one.
 
            
 
            (Dr. Berg Deposition, pages 37-38).
 
            
 
                 Dr. Berg also referred claimant to William R. Boulden, 
 
            M.D.  Dr. Boulden's notes of May 1, 1991 reflected his view 
 
            that claimant had continued aggravation to an underlying 
 
            degenerative disc disease.  Aggressive physical 
 
            rehabilitation was recommended.  Claimant underwent three 
 
            months of relatively intensive physical therapy in 1991, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            which she believed helped her problem, but did not resolve 
 
            it.  Dr. Berg was given an incorrect history in that 
 
            claimant specifically denied previous back problems prior to 
 
            1989.  On July 20, 1992, Dr. Boulden wrote that he had had a 
 
            chance to read the "full medical records" that he had been 
 
            supplied, and opined that the incident of December 30, 1990 
 
            caused no new impairment.  The record does not disclose 
 
            whether those "full medical records" included the 1985 and 
 
            1986 injuries, but, in any event, Dr. Boulden does not offer 
 
            an opinion that any particular injury did cause permanent 
 
            impairment.
 
            
 
                 Claimant was also treated at the University of Iowa 
 
            Hospitals and Clinics upon referral from Dr. Berg.  James M. 
 
            Weinstein, M.D., is director of the spine diagnostic and 
 
            treatment center at that facility.  Dr. Weinstein is a board 
 
            certified orthopedic surgeon who testified by deposition on 
 
            August 3, 1992.  Although Dr. Weinstein finds a degree of 
 
            physical impairment (3 percent), he was unable to correlate 
 
            complaints with examination; that is, he is not sure what is 
 
            wrong.  Radiographic studies show increased density along 
 
            the facet joints at L4-5 and L5-S1 possibly indicating mild 
 
            facet degeneration, and in March 1992, showing probable 
 
            minimal degenerative disc disease.  Dr. Weinstein is of the 
 
            view that aggressive physical therapy could be effective and 
 
            emphasizes that the sensation of pain while exercising does 
 
            not necessary mean that additional damage is being done.  
 
            Lifting limits following a rehabilitation evaluation on May 
 
            12, 1992, were fifteen pounds not more than four times per 
 
            hour and seven pounds repetitively, but it was believed that 
 
            these lifting strengths could be significantly improved with 
 
            aggressive rehabilitation.  In agency experience, the 
 
            University of Iowa spine team is inclined more to report 
 
            current test measurements rather to than recommend 
 
            "permanent" restrictions.
 
            
 
                 The May 1992 evaluation, the cost of which is 
 
            apparently in dispute, was requested and arranged by CNA.
 
            
 
                 Ms. Bix has also been evaluated by Richard F. Neiman, 
 
            M.D., a neurologist.  Dr. Neiman wrote on December 19, 1990 
 
            that magnetic resonance imaging showed a loss of water 
 
            content at L4-5 and L5-S1 and there appeared to be a slight 
 
            central disc herniation at L5-S1.  Dr. Neiman thereupon 
 
            assigned an 11 percent whole body impairment rating.  Dr. 
 
            Neiman also recommended lifting restrictions of 20-25 pounds 
 
            repetitively and up to 35 pounds no more than four times per 
 
            hour, and avoidance of excessive flexion, extension and 
 
            lateral rotation of the back and against prolonged sitting 
 
            and standing.  Based on a history of no previous back 
 
            difficulty, Dr. Neiman apparently causally linked this 
 
            impairment to "the injury."  However, claimant concedes and 
 
            Dr. Neiman's letter establishes that he was given an 
 
            incorrect history in that he was not aware of the 1985 and 
 
            1986 injuries.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 There is no dispute that claimant sustained an injury 
 
            arising out of and in the course of employment on October 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            12, 1989.  Excel Corporation disputes the occurrence of such 
 
            an injury on December 30, 1990.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The record establishes without contradiction that 
 
            claimant was struck by a fork lift truck on December 30, 
 
            1990 and, as a result, required medical attention.  This 
 
            constitutes a compensable injury.
 
            
 
                 However, the injury did not cause permanent disability.  
 
            Drs. Berg and Boulden have both opined that the 1990 injury 
 
            did not result in permanent disability.  These opinions 
 
            stand unchallenged.  Claimant has not met her burden of 
 
            proof on this issue.  She did, however, miss one day of work 
 
            on December 31, 1990.  Under Iowa Code section 85.32, 
 
            compensation for injuries resulting in no permanent 
 
            disability begins on the fourth day of disability.  
 
            Accordingly, claimant has failed to establish entitlement to 
 
            temporary total disability benefits.
 
            
 
                 The record is unclear to this observer as to precisely 
 
            what relief claimant seeks with respect to medical benefits.  
 
            However, it appears that only costs of the May 1992 
 
            examination at the University of Iowa are at issue.  This 
 
            evaluation was arranged by CNA Insurance Companies.  
 
            Accordingly, even though claimant seeks medical benefits 
 
            only in case 981358, fairness dictates that this expense be 
 
            paid by CNA.  Claimant thus shall take nothing further in 
 
            case 981358.
 
            
 
                 In case 930740, the parties stipulate to the extent of 
 
            healing period/temporary total disability, but dispute 
 
            whether the injury caused permanent disability.  As noted, 
 
            claimant bears the burden of proof on the issue.  Because 
 
            the injury is to the body as a whole, it must be compensated 
 
            industrially, if at all.
 
            
 
                 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 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 has a loss of actual earnings and now labors 
 
            under medical restrictions. Clearly, her earning capacity is 
 
            reduced.  It inescapably follows that she has sustained 
 
            industrial disability.  But, is that industrial disability 
 
            attributable to the 1989 injury, or to some other?  
 
            
 
                 Opinions on causation in this record are generally 
 
            tainted by the incorrect history given each physician.  
 
            However, Dr. Berg is of the view that all disability is 
 
            attributable to the October 12, 1989 injury if "she had a 
 
            period of time where there was no -- no problems, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            essentially well, and at full motion."  Claimant credibly 
 
            testified and has established as fact that she did not 
 
            suffer back problems following her recovery from the 1986 
 
            injury until October 12, 1989.  That she had a full range of 
 
            motion in 1988 is fully established by the pre-employment 
 
            physical examination conducted by Mary Brooks.
 
            
 
                 While the determination of causation is essentially 
 
            within the domain of expert testimony, expert opinion going 
 
            to the mere possibility of such a connection is sufficient 
 
            when coupled with nonexpert proof of no preexisting 
 
            condition.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375 101 N.W.2d 167 (Iowa 1960).  Given that claimant was 
 
            symptom free for several years, but has suffered symptoms 
 
            since October 12, 1989, and given further the guidance of 
 
            Dr. Berg's testimony, it is held that she has met her burden 
 
            of proof in establishing a causal nexus between the injury 
 
            of October 12, 1989 and her current industrial disability.
 
            
 
                 What then is the extent of that disability?  Dr. Berg, 
 
            the treating physician, has recommended a rather stringent 
 
            weight limitation of from 10-25 pounds.  The measurements 
 
            conducted by the University of Iowa are similar.  Dr. Neiman 
 
            is more generous in his limitations, but all seem to agree 
 
            that bending and twisting should be restricted.  Based on a 
 
            40 hour week, claimant is reduced by $10.00 in her weekly 
 
            wage because she has lost her bid job.  Stated as a 
 
            percentage of the hourly wage she could be expected to be 
 
            earning now, had the injury not occurred, this is 2.9 
 
            percent.
 
            
 
                 Claimant's work experience is in factory work and as a 
 
            nurse's aide.  It seems clear that she will never be able to 
 
            work as a nurse's aide again.  It is also clear that there 
 
            are many factory jobs for which claimant would otherwise be 
 
            suited, which are now beyond her physical capability.  Note 
 
            that claimant's diminutive stature has previously been 
 
            mentioned.  While she gives a sturdy appearance and was 
 
            formerly athletic (water skiing, dancing and running), it is 
 
            also to be expected that her strength would not be unlimited 
 
            even in the absence of this injury.  Still, she was able to 
 
            work as a nurse's aide for years, certainly a physically 
 
            demanding occupation.  Given claimant's limited education, 
 
            it is unrealistic to expect her to qualify for many jobs 
 
            other than physical labor in the manufacturing setting.  On 
 
            the other hand, defendants have been able to keep claimant 
 
            employed within her restrictions, a factor strongly tending 
 
            to reduce industrial disability.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that Leila Bix has 
 
            sustained an industrial disability equivalent to 25 percent 
 
            of the body as a whole attributable to her work injury of 
 
            October 12, 1989.
 
            
 
                 Healing period ended on October 24, 1989 when claimant 
 
            returned to work, Iowa Code section 85.34(1).  Permanency 
 
            benefits commenced the next day.  The period from March 5 
 
            through March 8, 1990 is compensable as temporary total 
 
            disability, and runs concurrently with payment of permanency 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            benefits.  The two types of benefits are of different type: 
 
            temporary total disability benefits act as a substitute for 
 
            lost income while permanency benefits compensate for 
 
            permanent loss of earning capacity.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 In case number 981357:
 
            
 
                 The case stands dismissed without prejudice.
 
            
 
     
 
            
 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
                 In case number 981358:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 
 
            
 
                 In case number 930740:
 
            
 
                 Defendants shall pay healing period benefits from 
 
            October 13 through October 24, 1989 [one point seven one 
 
            four (1.714) weeks], and temporary total disability benefits 
 
            from March 5 through March 8, 1990 [point five seven one 
 
            (.571) weeks], both at the weekly compensation rate of one 
 
            hundred ninety-five and 51/100 dollars ($195.51).
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of one hundred ninety-five and 51/100 
 
            dollars ($195.51) per week commencing October 25, 1989.
 
            
 
                 Defendants shall pay the University of Iowa Hospitals 
 
            and Clinics bill attributable to the May 1992 evaluation.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            compliance with this decision.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr H Edwin Detlie
 
            Attorney at Law
 
            114 North Market Street
 
            Ottumwa Iowa 52501
 
            
 
            Ms Dorothy L Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines Iowa 50309
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Mr Stephen W Spencer
 
            Attorney at Law
 
            218 6th Avenue Ste 300
 
            PO Box 9130
 
            Des Moines Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               3003 - 2901
 
                                               Filed August 26, 1992
 
                                               DAVID R. RASEY
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LEILA BIX,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                          File Nos. 981357
 
            EXCEL CORPORATION,                      930740
 
                                                    981358
 
                 Employer, 
 
                      
 
            and       
 
                      
 
            CNA INSURANCE, 
 
                      
 
                 Insurance Carrier,         A R B I T R A T I O N
 
 
 
                                              D E C I S I O N
 
            LEILA BIX,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                      
 
            EXCEL CORPORATION,  
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            3003
 
            Rate stipulation was rejected where rate did not match 
 
            stipulation as to gross wages, marital status and 
 
            dependants.
 
            
 
            2901
 
            Dismissal without prejudice of one petition was accepted at 
 
            hearing.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD E. SISTERN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File No. 981364
 
                                          :                943902
 
            CRANE COMPANY,                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Ronald Sistern, against his employer, Crane 
 
            Company, and the National Union Fire Insurance Company, 
 
            insurance carrier, as defendants.  Claimant has filed two 
 
            petitions alleging injury dates of March 27, 1989 (file No. 
 
            943902) and April 25, 1989 (file No. 981364).  The files 
 
            were consolidated, and a hearing was held before the 
 
            undersigned deputy industrial commissioner on October 8, 
 
            1991, at Ottumwa, Iowa.
 
            
 
                                      issues
 
            
 
                 In accordance with the hearing assignment order, the 
 
            parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of his employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injuries and the disabilities;
 
            
 
                 3.  Whether claimant is entitled to temporary total 
 
            disability or healing period benefits or permanent partial 
 
            or permanent total disability benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27;
 
            
 
                 5.  Equitable apportionment; and,
 
            
 
                 6.  Whether defendants are entitled to credit for 
 
            benefits previously paid pursuant to Iowa Code section 
 
            85.38(2).
 
            
 
                 Defendants also maintain that claimant failed to give 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            defendants proper notice of the injury, and failed to file 
 
            his petition within the appropriate statue of limitations.
 
            
 
                 The record in this case consists of claimant's exhibit 
 
            1-31; defendants' exhibits A-E; testimony from the claimant; 
 
            Gerd Hilbert; Phyllis Scheeler, an industrial nurse; Kermit 
 
            Hotopp; and, Kevin Crossett, machine shop foreman.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Ronald Sistern, was born on April 10, 1957.  
 
            He graduated from high school in 1975.  He has undertaken 
 
            several post-high school courses, including blueprint 
 
            reading and a course which taught claimant how to work a 
 
            machine used by the employer.
 
            
 
                 After several years of working in a factory, in a 
 
            discount store, as a dishwasher and as a farmhand, claimant 
 
            began to work for the employer, Crane Company.  In 1977, he 
 
            started out working nights in the core room.  After six 
 
            months, he moved into the machine shop and worked a drill 
 
            press for six months.  At that time, he was transferred into 
 
            the lathe/automotive department, and worked on seating 
 
            lathes, gaining experience on both the vertical and 
 
            horizontal lathes.  Claimant testified that operating the 
 
            lathes required him to lift between 35 to 100 pounds.  At 
 
            times, he would have to move the lathes, and although a 
 
            hoist or fork lift was available to be used for this 
 
            purpose, in order to meet his quota, he would sometimes move 
 
            the lathes by hand.
 
            
 
                 In 1988, claimant moved to Indiana and worked for, but 
 
            moved back to Washington, Iowa, after five months.  When he 
 
            got back to Iowa, he worked part-time as a groundsman, and 
 
            then reapplied and was hired back at Crane Company.
 
            
 
                 Claimant testified that in 1987, he was experiencing 
 
            back pains and upon the advice of his family physician, 
 
            Dennis Shimp, D.O., claimant underwent a CT scan and EMG.  
 
            Dr. Shimp's records indicate that claimant had complained of 
 
            dorsal and lumbar spine pain in 1986 and 1987 (Claimant's 
 
            Exhibit 11, pages 4-5).  On March 28, 1989, claimant 
 
            returned to Dr. Shimp complaining of an onset of lumbar pain 
 
            while tightening a chuck at work.  The notes indicate that 
 
            claimant stated the pain was radiating into both legs.  It 
 
            is noted that claimant had denied pain radiation into the 
 
            legs in the previous years (Cl. Ex. 11, p. 5).  Claimant was
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            referred to William Pontarelli, M.D., an orthopedic 
 
            specialist, whom he saw on April 6, 1989.  Dr. Pontarelli's 
 
            notes indicate:
 
            
 
                    Ron Sistern is having frequent recurrent bouts 
 
                 of disabling back pain radiating in the L5 
 
                 dermatone distribution to especially the right 
 
                 leg....He had been previously diagnosed before 
 
                 with desires of surgical correction for this 
 
                 problem.  Because of the recurrent disabling 
 
                 nature of his pain, I feel that it is indicated to 
 
                 do a Gill decompression and fusion.
 
            
 
            (Cl. Ex. 12, p. 3)
 
            
 
                 Claimant underwent surgery on April 25, 1989, and 
 
            underwent physical therapy through November of 1989 (Cl. Ex. 
 
            13, pp. 1-78; Cl. Ex. 14, pp. 1-7).
 
            
 
                 In February of 1990, Dr. Pontarelli made the following 
 
            assessment:
 
            
 
                    At the present time, based on the American 
 
                 Academy of Orthopedic Surgeon's Guide, Ron would 
 
                 qualify for a 15% whole body impairment.
 
            
 
                    My feelings as far as return to work for Ron 
 
                 are that he should be careful in his choice of 
 
                 employment, particularly when it comes to 
 
                 repetitive heavy lifting or lifting with a twisted 
 
                 back motion.  He was doing so well that he was 
 
                 released to return to work without restrictions on 
 
                 11/14/89.  I don't feel that Ron had a congenital 
 
                 problem.  I feel that spondylolisis with 
 
                 spondylolisthesis is acquired through a traumatic 
 
                 event, either a single sudden event such as a 
 
                 fall, impact type of trauma, a collision in a car 
 
                 or sporting event or from repetitive build up 
 
                 internal stresses, a stress fracture.  I also felt 
 
                 in a situation such as Ron's where he is required 
 
                 to do repetitive lifting up to 300 pounds, this is 
 
                 definitely a situation where work had aggravated a 
 
                 preexisting condition.
 
            
 
            (Cl. Ex. 16, p. 1)
 
            
 
                 Dr. Pontarelli opined that the 15 percent whole body 
 
            impairment was from a work-related aggravation and 
 
            subsequent spinal fusion.  However, in his deposition taken 
 
            in July of 1991, Dr. Pontarelli was of the opinion that 5 
 
            percent of the 15 percent rating would be attributable to 
 
            the spondylolisthesis, a condition claimant had prior to 
 
            1989.  As a result of the surgery that was performed in 
 
            1989, Dr. Pontarelli increased the rating to 15 percent 
 
            impairment to the body as a whole.  Dr. Pontarelli was also 
 
            of the opinion that the surgery was necessary to alleviate 
 
            the pain caused by the aggravation of claimant's condition 
 
            by work activities (Cl. Ex. 22, pp. 22-27).
 
            
 
                         analysis and conclusions of law
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received injuries on May 27, 1989 and April 25, 1989, which 
 
            arose out of and in the course of his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries which arose out of 
 
            and in the course of his employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 Claimant originally filed a petition stating an injury 
 
            date of March 27, 1989.  He later filed a second petition 
 
            alleging a cumulative injury date of April 25, 1989.  The 
 
            latter date is the date he entered the hospital for back 
 
            surgery.
 
            
 
                 Gerd Hilbert, an employee of Crane Company, testified 
 
            at the hearing under subpoena.  He was working on a machine 
 
            next to the claimant on March 27, 1989.  Mr. Hilbert 
 
            testified that he recalled that on that date, claimant asked 
 
            for help taking a part out of a machine and that the 
 
            claimant looked as if he was in pain.  Mr. Hilbert also 
 
            testified that his best recollection of the incident was 
 
            that claimant told him that he had twisted his back while 
 
            placing a part on a pallet.  The witness indicated that 
 
            claimant worked for ten minutes after the incident, and then 
 
            went home.
 
            
 
                 The medical records from Dr. Shimp also indicate that 
 
            claimant was injured on March 27, 1989.  The evidence 
 
            indicates that claimant was performing his required job 
 
            duties on his regular shift in an appropriate manner.  As a 
 
            result, it is found that claimant sustained an injury which 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            arose out of and in the course of his employment on March 
 
            27, 1989.
 
            
 
                 In so finding, the undersigned has determined that it 
 
            was unnecessary for claimant to file a second petition 
 
            alleging a cumulative injury which manifested in April of 
 
            1989.  As a result, file No. 981364 is dismissed.
 
            
 
                 Defendants assert two affirmative defenses, lack of 
 
            notice of the injury and failure to file an original notice 
 
            and petition within the appropriate time frame.
 
            
 
                 Iowa Code section 85.23 provides, in pertinent part:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 The evidence clearly reflects that the claimant 
 
            notified his supervisor of the March 27, 1989 incident (Cl. 
 
            Ex. 1).  Defendants' argument fails.
 
            
 
                 Defendants also argue that claimant failed to file his 
 
            original notice and petition within the appropriate time 
 
            frame.
 
            
 
                 Iowa Code section 85.27 states, in relevant part:
 
            
 
                    1.  An original proceeding for benefits under 
 
                 this chapter or chapter 85A, 85B, or 86, shall not 
 
                 be maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 Claimant's injury occurred on March 27, 1989.  His 
 
            original notice and petition was filed on June 25, 1990, 
 
            well within the two year provision which is applicable to 
 
            this claim, as claimant has not been paid any weekly 
 
            benefits.
 
            
 
                 The next issue to be addressed is whether claimant has 
 
            sustained his burden of proving by a preponderance of the 
 
            evidence that the injury of March 27, 1989 is causally 
 
            related to the disability on which he now bases is claim.
 
            
 
                 A cause is proximate if it is a substantial factor in 
 
            bringing about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probably rather than merely possible.  
 
            Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson, 217 N.W.2d 
 
            531, 536.  To establish compensability, the injury need only 
 
            be a significant factor, not be the only factor causing the 
 
            claimed disability.  Blacksmith v. All-Amnerican, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an em
 
            ployer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment. 
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 Defendants argue that claimant has not met his burden 
 
            of proof.  Their argument stems from the fact that claimant 
 
            has had preexisting back problems since the 1970's, when 
 
            claimant was involved in an automobile accident and 
 
            sustained a broken back.  More specifically, defendants 
 
            argue that claimant has had ongoing back problems since 
 
            August of 1987, and has made accommodations in his job so 
 
            that he could perform his work without pain.  Dr. 
 
            Pontarelli, in his deposition, indicated that claimant's 
 
            back condition had not changed from 1987 to April 1989.  Dr. 
 
            Pontarelli was of the opinion that from 1987 until the time 
 
            of surgery, claimant had decided to undergo conservative 
 
            treatment and although had been advised of the benefits of 
 
            surgery, had elected to forego surgical intervention.  Dr. 
 
            Pontarelli stated that it was his impression that claimant 
 
            could no longer tolerate the pain and elected to undergo 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            surgery in April of 1989.  Apparently, Dr. Pontarelli was 
 
            unaware of any specific episode which led to claimant's 
 
            decision to undergo surgery (Cl. Ex. 22).
 
            
 
                 Claimant argues that even though claimant had a 
 
            preexisting condition which affected his lower back, he was 
 
            able to perform his work from August of 1987 until March 27, 
 
            1989, with only one disruption in his work schedule.
 
            
 
                 The greater weight of the evidence indicates that 
 
            claimant did sustain an injury on March 27, 1989, which 
 
            caused him to experience a greater amount of pain in his low 
 
            back which eventually necessitated surgery.  As a result, it 
 
            is found that claimant's current disability is causally 
 
            related to the work-related injury.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to weekly compensation for temporary total 
 
            disability or healing period benefits and permanent partial 
 
            disability benefits.  Dr. Pontarelli assessed claimant with 
 
            a 15 percent functional impairment, and allocated 5 percent 
 
            of claimant's impairment to his preexisting condition of 
 
            spondylolisthesis.  The remaining 10 percent impairment 
 
            stems from the surgery.  As claimant's disability has been 
 
            found to be permanent, claimant is entitled to healing 
 
            period benefits for the time he was off of work and 
 
            recovering from the injury.  The prehearing report indicates 
 
            that both parties agree claimant was off work March 27, 1989 
 
            through March 31, 1989, and April 24, 1989 through November 
 
            14, 1989.  Claimant is awarded healing period benefits for 
 
            this time frame.
 
            
 
                 As claimant has sustained a permanent disability to his 
 
            back, it is necessary to analyze his industrial disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter 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.
 
            
 
                 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 healing 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  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.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  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, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 34 years of 
 
            age.  He is a high school graduate, and has become a skilled 
 
            laborer.  His work requires him to lift between 20 and 300 
 
            pounds, although he had devices available to him to assist 
 
            him in lifting the heavier weights.
 
            
 
                 His treating physician, Dr. Pontarelli, has assessed a 
 
            15 percent functional impairment rating, but has imposed no 
 
            work restrictions.  Claimant voluntarily bid to a lathe job 
 
            with a lower pay rate in order to obtain lighter lifting 
 
            requirements.  Claimant stated that his nonwork-related 
 
            activities are essentially the same as prior to the surgery, 
 
            although claimant no longer plays volleyball.
 
            
 
                 Claimant appears to be a highly motivated worker, and 
 
            consistently accepts overtime work made available to him.  
 
            The employer has maintained claimant as an employee.
 
            
 
                 After considering all the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained a 15 percent loss of earning capacity.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits pursuant to Iowa Code section 
 
            85.27.
 
            
 
                 The Code states, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                 Claimant's injury is compensable, and the defendants 
 
            are responsible for payment of the medical bills.
 
            
 
                 Defendants also request credit for benefits paid as 
 
            provided for under Iowa Code section 85.38(2):
 
            
 
                    2.  Credit for benefits paid under group plans.  
 
                 In the event the disabled employee shall receive 
 
                 any benefits, including medical, surgical or 
 
                 hospital benefits, under any group plan covering 
 
                 nonoccupational disabilities contributed to wholly 
 
                 or partially by the employer, which benefits 
 
                 should not have been paid or payable if any rights 
 
                 of recovery existed under this chapter, chapter 
 
                 85A or chapter 85B, then such amounts so paid to 
 
                 said employee from any such group plan shall be 
 
                 credited to or against any compensation payments, 
 
                 including medical, surgical or hospital, made or 
 
                 be made under this chapter, chapter 85A or chapter 
 
                 85B.  Such amounts so credited shall be deducted 
 
                 from the payments made under these chapters.
 
            
 
                 Defendants are allowed credit under this section as 
 
            long as they contributed to the group plan.
 
            
 
                 The parties stipulated that on May 27, 1989, claimant 
 
            was single with one dependent.  His gross weekly earnings 
 
            were $381.94 per week.  According to the Guide to Iowa 
 
            Workers' Compensation Claim Handling (July 1988), claimant's 
 
            workers' compensation rate is $237.09 per week.
 
            
 
                           
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits at the rate of two hundred thirty-seven and 09/100 
 
            dollars ($237.09) during the time frames stipulated to in 
 
            the prehearing report.
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability payments totaling seventy-five (75) weeks at the 
 
            rate of two hundred thirty-seven and 09/100 dollars 
 
            ($237.09) beginning November 15, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall reimburse claimant for all 
 
            medical benefits paid for by claimant, as provided for under 
 
            Iowa Code section 85.27.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Bruce L Walker
 
            Attorney at Law
 
            321 E Market
 
            P O Box 2150
 
            Iowa City IA 52240
 
            
 
            Mr James E Shipman
 
            Attorney at Law
 
            1200 MNB Bldg
 
            Cedar Rapids IA 52401
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed November 26, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD E. SISTERN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File No. 981364
 
                                          :                943902
 
            CRANE COMPANY,                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant sustained a work-related aggravation to a 
 
            preexisting back condition.
 
            He was given a 15% functional impairment rating, and no work 
 
            restrictions.  Claimant was released to return to his old 
 
            job, but bid into a lower paying position that required less 
 
            lifting.
 
            Claimant awarded 15% industrial disability.
 
            
 
            
 
 
            
 
             
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
        
 
            KAREN S. PETERSON,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 981365
 
            LLOYD R. WARREN d/b/a WARREN,   
 
            MASONRY,    
 
                                                    A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            UNITED FIRE & CASUALTY COMPANY  
 
            OF CEDAR RAPIDS, IOWA,     
 
                        
 
                 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
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
            I.  The opinion of the Claimant's expert, Dr. Kevin 
 
            Whitford, was not supported by the evidence and should not 
 
            have been the basis for the award in this case.
 
            II.  There was no factual foundation for the Deputy 
 
            Industrial Commissioner's conclusion that the Claimant's 
 
            decision to continue working, rather than seek medical 
 
            treatment, was a basis for compensation in this case.
 
            III.  The Deputy Industrial Commissioner erred as a matter 
 
            of law and fact in concluding that the opinion of the 
 
            Claimant's expert (as "treating" physician) should be given 
 
            greater weight than a physician called by the Defendants.
 
            IV.  The Deputy Industrial Commissioner erred as a matter of 
 
            law in allowing hearsay testimony and hearsay within hearsay 
 
            testimony on the basis that hearsay testimony is admissible.
 
            
 
                             FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed March 24, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 

 
            
 
            Page   2 
 
            
 
            
 
            
 
            
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            *****
 
            It is found that claimant is the surviving spouse of Raymond 
 
            Peterson who shall hereinafter be referred to as Ray.
 
            Ray worked for Bud Warren for approximately 29 years before 
 
            his death.  During the last 15 years he was a brick and 
 
            block mason.  For 15 years before that, he was a mason 
 
            tender.  On December 19, 1990, Ray collapsed and died while 
 
            working laying a brick wall with Warren and other employees 
 
            on a residential house project in Ames, Iowa.  The following 
 
            is specifically found with reference to the specific facts 
 
            and circumstances leading up to his death:
 
            Shortly after 1:00 p.m. on December 19, 1990, Kevin 
 
            Whitford, M.D., a board certified specialist in internal 
 
            medicine at the McFarland Clinic in Ames, Iowa, was on call 
 
            at the Mary Greeley Medical Center emergency room in Ames, 
 
            Iowa, when the paramedics, in response to a 911 call, 
 
            brought to the emergency room a heart attack patient by the 
 
            name of Raymond L. Peterson.
 
            
 
            At the time of his death, Ray was 50 years of age, weighed 
 
            220-240 pounds with a height less than 6 feet.  Ray's wife 
 
            was employed and usually left home at 4:30 a.m. each 
 
            morning.  Ray smoked 3-4 packs of cigarettes per day, drank 
 
            3-4 cans of Coke per day at work and 2-3 cans at night.  
 
            When working, he ate a cold meal consisting of a meat 
 
            sandwich, cupcakes, and a soft drink during a half hour 
 
            lunch break.  In the evening, Ray would eat a heaping plate 
 
            of meat, potatoes, vegetable, bread, butter and dessert.  
 
            For about a year before his death, Ray had been consuming 45 
 
            extra-strength Tylenol tablets several times a day.  This 
 
            was in addition to the regular consumption of Rolaid 
 
            tablets.  Ray was the type of person who never went to a 
 
            doctor, dentist or hospital.  Ray had a fear of heights.  In 
 
            the days before his death he was assigned to work in Ames 
 
            and used a commuter route from his residence in Nevada, Iowa 
 
            that avoided traffic congestion.  During his employment with 
 
            Warren, Ray was a good, conscientious employee and was 
 
            always on time for work.
 
            
 
            During the week of December 9, 1990, Ray worked laying brick 
 
            at a North Grand Mall building in Ames, Iowa.  At this job, 
 
            he helped construct a plywood and plastic enclosed shelter.  
 
            He was lifting and handling one-half inch thick 4 x 4 x 8 
 
            feet pieces of plywood.  Thereafter, he worked in the 
 
            enclosure heated by a kerosene-fired heater.  The outside 
 
            temperatures ranged from 20-40 degrees Fahrenheit.
 
            On Sunday, December 16, 1990, Ray suffered severe chest 
 
            pains radiating into his arms and numbness in one of his 
 
            hands after helping his wife clean the basement.  This work 
 
            required carrying bags of material up the basement steps.  
 
            Ray also complained of pressure under his rib cage and 
 
            consumed two rolls of Rolaid tablets and requested Alka 
 
            Seltzer tablets.  Ray first thought he was having a heart 
 
            attack but later decided it was just gas.  On Monday, 
 

 
            
 
            Page   3 
 
            
 
            
 
            
 
            
 
            December 17, 1990, the weather was so inclement that Warren 
 
            cancelled work.
 
            On Tuesday, December 18, 1990, Ray picked up a fellow 
 
            employee in the morning and drove to his work site that day 
 
            located at 3112 Maplewood Road in northwest Ames, Iowa using 
 
            his usual noncongested travel route.  Upon arrival, Ray 
 
            helped erect a plywood and paper-roofed shelter adjacent to 
 
            a residential home where Warren and his crew was to erect a 
 
            brick wall. The enclosure was heated by use of an open flame 
 
            from a propane tank. After building the enclosure, claimant 
 
            worked the rest of the day laying brick.  The temperature 
 
            that day was a few degrees below freezing.  Inside the 
 
            enclosure however the temperature ranged from 50-60 degrees 
 
            Fahrenheit.  The enclosure was fairly tight to keep out the 
 
            cold as a warm temperature is needed to properly set up the 
 
            mortar.  The door way consisted of a flap of the paper 
 
            substance used and this was constructed in a manner to close 
 
            after entry and exit.  Tenders regularly traveled through 
 
            this door way to bring in brick and mortar.
 
            Initially, the area next to the foundation inside the 
 
            enclosure had to be cleaned using a hammer to chop away 
 
            frozen materials.  Later on, Ray and Warren began laying 
 
            brick from opposite sides.  The bricks and mortar was 
 
            provided to each of these men by their tenders.  Brick 
 
            laying ended at 3:30 and after striking (removing excess 
 
            mortar) the brick, Ray left work and returned home.  
 
            Sometime during the day Ray told Warren of the Sunday chest 
 
            pain and that he first thought he had suffered a heart 
 
            attack but later concluded it was only gas.  That evening, 
 
            Ray again complained of chest, arm and hand pain.  He ate 
 
            only soup for dinner and complained of exhaustion.
 
            The following day, Wednesday, December 19, 1990, Ray again 
 
            picked up his fellow employee and commuted to Ames in the 
 
            morning the usual way arriving at the work site at 
 
            approximately 8:00 a.m.  That day Ray was dressed in his 
 
            warmest clothes and wore heavy, insulated rubber boots, a 
 
            heavy coat and an insulated jacket.  At approximately 9:00 
 
            a.m., Ray and Warren again started laying brick.  The wall 
 
            was around 4 - 4 1/2 feet high from the work the day before, 
 
            and a 3 - 4 foot scaffold was erected to bring the wall up 
 
            to the eaves or over 9 feet from the ground.  At one time 
 
            Ray complained of a kink is his neck while working under the 
 
            roof eaves of the house.  The employee that Ray had been 
 
            commuting with began to experience flu-like symptoms and 
 
            Warren took him home.
 
            
 
            At approximately noon, the crew broke for lunch.  Ray and 
 
            another employee went to the basement of the home which was 
 
            heated by a furnace to have lunch.  Ray only ate a part of a 
 
            sandwich and took a pain pill he had obtained a few days 
 
            earlier from his son.  Ray began to complain he was hot and 
 
            that he was having trouble breathing.  Ray went outdoors and 
 
            after Warren returned to the site, Ray sat in his truck for 
 
            a short time.  After the usual half-hour lunch break, Ray 
 
            and the crew returned to the shelter.  After obtaining a 
 

 
            
 
            Page   4 
 
            
 
            
 
            
 
            
 
            striker tool from his toolbox, Ray attempted to climb the 
 
            short ladder to the scaffold and before he reached the top, 
 
            he collapsed on the scaffold.  Nearby persons and eventually 
 
            rescue personnel administered CPR and emergency procedures 
 
            and transported Ray to the Greeley Medical Center.  At the 
 
            hospital efforts to revive Ray continued under the direction 
 
            of Dr. Whitford.  These efforts failed and Ray was 
 
            pronounced dead at 1:35 p.m.  An autopsy was requested but 
 
            the family refused.
 
            [Dr. Whitford offered the opinion that Raymond's heart 
 
            attack was caused by working in extremely cold conditions 
 
            and involving heavy physical exertion.  Dr. Whitford opined 
 
            that Raymond's heart attack and death was caused by his work 
 
            activity.]
 
            *****
 
            *****  Paul From, M.D., does not causally relate Ray's heart 
 
            attack to his work as a mason at the time of death.  Dr. 
 
            From based his opinion primarily on the fact that despite a 
 
            weakened, diseased heart, Ray was conditioned or acclimated 
 
            to that level of activity and such work would not be 
 
            unusually stressful on his heart.  *****
 
            *****
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed March 24, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
             I.  Claimant is seeking benefits as a result of the death 
 
            of her husband.  Such benefits are available under Chapter 
 
            85, Code of Iowa because a work injury is defined in the 
 
            statute to include death as a result of injury. Iowa Code 
 
            section 85.61(5)(a).  Death from an occupational disease is 
 
            likewise compensable under chapter 85A of the Code.  Iowa 
 
            Code section 85A.12.  However, an employer is liable for 
 
            death benefits only if claimant establishes by a 
 
            preponderance of the evidence that the death arose 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 Community Sch. 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, and 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.
 
            The question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshsaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion 
 

 
            
 
            Page   5 
 
            
 
            
 
            
 
            
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language and the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact. 
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The 
 
            weight to be given to such an opinion is for the finder of 
 
            fact, and that may be affected by the completeness of the 
 
            premise given the expert and other surrounding 
 
            circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Meyer 
 
            & Co., 217 N.W.2d 531, 536 (1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).  In the case of a preexisting 
 
            condition, an employee is not entitled to recover for the 
 
            results of a preexisting injury or disease but can recover 
 
            for an aggravation thereof which resulted in the disability 
 
            found to exist.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).
 
            
 
            In work injuries involving the heart, Iowa claimants with 
 
            preexisting circulatory or heart conditions are permitted, 
 
            upon proper medical proof, to recover worker's compensation 
 
            benefits only when the employment contributes something 
 
            substantial to increase the risk of injury or death.  The 
 
            employment contribution must take the form of an exertion 
 
            greater than nonemployment life.  Sondag, 220 N.W.2d 903 
 
            (Iowa 1974).  The comparison, however, is not with the 
 
            employee's usual exertion in his employment but with 
 
            exertions of normal nonemployment life of this or any other 
 
            person.  Id.  ***** Swalwell v. William Knudson and Son, 
 
            Inc., II Iowa Industrial Commissioner Report 385 (Appeal 
 
            Decision 1982).  The Sondag rule is favored by Professor 
 
            Larson in his treatise of workers' compensation. See 1A 
 
            Larson, Workmen's Compensation Law, section 38.83 at 7-172.  
 
            According to Professor Larson, the causative test is a two 
 
            part analysis.  First, there is a medical causation test in 
 
            which the medical experts must be relied upon to causally 
 
            relate the alleged stress (emotional or physical) to the 
 
            heart injury.  Second, there is a legal causation test to 
 
            determine if the medically related stress is more than the 
 
            stress of everyday nonemployment life. 
 
            *****
 
            [Claimant bears the burden of proof to show that the heart 
 
            attack and resulting death of Raymond Peterson arose out of 
 
            Raymond's employment.  To meet the "medical test", it must 
 
            be shown that the fatal heart attack was caused by work 
 
            activity.  Claimant has offered the testimony of Dr. 
 

 
            
 
            Page   6 
 
            
 
            
 
            
 
            
 
            Whitford in this regard.  
 
            The work conditions Raymond worked under on the day of his 
 
            fatal heart attack were not extreme.  Although the weather 
 
            was cold, he worked in a protected environment.  In 
 
            addition, his work activity was not exceptionally strenuous.  
 
            A brick tender brought the bricks to his work station, 
 
            requiring Ray only to lay the bricks.  Significantly, just 
 
            prior to the onset of the heart attack, Raymond was not 
 
            engaging in strenuous activity, but rather had just finished 
 
            lunch and was in the process of returning to work and 
 
            climbing a short ladder.  
 
            Dr. Whitford's opinion that Raymond's fatal heart attack was 
 
            caused by his work activity was based on the assumption that 
 
            Raymond was engaged in heavy physical labor and working in 
 
            extremely cold conditions.  As noted above, both assumptions 
 
            were incorrect and thus affect the weight to be given to the 
 
            medical conclusion.  Claimant has failed to meet the 
 
            "medical test".
 
            Even if the opinion of Dr. Whitford is accepted, however, 
 
            claimant has also failed to meet the "legal test".  Under 
 
            this prong of the Simbro case, claimant must show that the 
 
            work activity allegedly causing the fatal heart attack was 
 
            work exertion greater than that experienced in nonemployment 
 
            life.  The work conditions under which the fatal heart 
 
            attack occurred do not rise to this level.  Claimant has 
 
            also failed to satisfy the "legal test". 
 
            In addition, other evidence indicates that the heart attack 
 
            was caused by other than work factors.  Raymond not only had 
 
            a preexisting heart condition, but also his heavy intake of 
 
            Tylenol, Rolaids, Coca Cola, and his smoking 2 to 4 packs of 
 
            cigarettes per day could as easily account for his heart 
 
            attack as work exertion.  Also, his age and his weight of 
 
            220 to 240 pounds with a height under six feet are 
 
            additional heart risk factors more likely to account for his 
 
            heart attack than his work exertion.  These facts, coupled 
 
            with the evidence that he had experienced the onset of heart 
 
            attacks two times in the previous few days at home, lead to 
 
            the conclusion that his fatal heart attack was caused by 
 
            nonwork factors.  Claimant has failed to carry her burden to 
 
            show that the fatal heart attack was caused by work exertion 
 
            greater than that found in nonemployment activities.]
 
            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 June, 1993.
 
                        
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         Page   7 
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Dayton Countryman
 
            Attorney at Law
 
            P.O. Box 28
 
            Nevada, Iowa 50201-0028
 
            
 
            Mr. Joseph M. Isenberg
 
            Attorney at Law
 
            116 Kellogg Ave.
 
            Ames, Iowa 50010
 
            
 
            Mr. Thomas Henderson
 
            Attorney at Law
 
            317 Sixth Ave., Ste 1200
 
            Des Moines, Iowa 50309-4110
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2202
 
                                                 Filed June 30, 1993
 
                                                 Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            KAREN S. PETERSON,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 981365
 
            LLOYD R. WARREN d/b/a WARREN,   
 
            MASONRY,    
 
                                                  A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            UNITED FIRE & CASUALTY COMPANY  
 
            OF CEDAR RAPIDS, IOWA,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            2202
 
            Decedent's death by heart attack found not to be work 
 
            related where worker had angina symptoms on two nonwork days 
 
            just prior to fatal attack, and where worker was overweight, 
 
            a heavy smoker, had a history of heart trouble, consumed 
 
            extraordinary quantities of Tylenol, Rolaids and Coca-Cola, 
 
            and where worker had just returned from lunch break and 
 
            immediately experienced attack before beginning work again.
 
            Decedent's work of laying brick where a brick tender brought 
 
            the bricks to him, and working in a heated environment 
 
            during winter, found not be exertion greater than normal 
 
            nonemployment activities.  Decedent's work did not meet the 
 
            "legal test."
 
            The medical opinion which causally connected decedent's 
 
            fatal heart attack to his work was based on an assumption of 
 
            heavy exertion in a cold environment.  As both assumptions 
 
            were shown to be incorrect, the "medical test" was not met.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAREN S. PETERSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 981365
 
            LLOYD R. WARREN d/b/a WARREN  :
 
            MASONRY,                      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY OF CEDAR RAPIDS, IOWA,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Karen 
 
            Peterson, claimant, against Lloyd R. Warren d/b/a Warren 
 
            Masonry, employer (hereinafter referred to as Warren), and 
 
            United Fire & Casualty Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of an 
 
            alleged work-related death of Raymond Peterson on December 
 
            19, 1990.  On February 19, 1992, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            Raymond Peterson and Warren at the time of the alleged 
 
            injury.
 
            
 
                 2.  At the time of injury, Raymond Peterson's gross 
 
            rate of weekly compensation was $313.00.  He was married.  
 
            The parties had stipulated that claimant is entitled to only 
 
            one exemption.  This stipulation cannot be honored as it 
 
            would be contrary to Iowa Code section 85.42(1) which con
 
            clusively presumes a surviving spouse as wholly dependant.  
 
            Claimant is entitled to two exemptions, one for her deceased 
 
            husband and one for herself.  Therefore, claimant's weekly 
 
            rate of compensation is $203.13 according to the Industrial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Commissioner's published rate booklet for FY 91.
 
            
 
                 3.  The medical bills submitted by claimant at the 
 
            hearing are fair and reasonable and causally connected to 
 
            the medical condition upon which the claim herein is based, 
 
            but that the issue of their causal connection to a 
 
            work-related death remains an issue to be decided herein.
 
            
 
                 At hearing, claimant requested that this deputy commis
 
            sioner take official notice of several items.  This request 
 
            is denied for the reason that:  1) it is untimely as defen
 
            dants had no notice of this request prior to hearing; and, 
 
            2) the matters asked to be noticed were either conclusions 
 
            of law or controversial questions of fact and not a proper 
 
            subject for official notice.  In any event, the failure to 
 
            take notice of these matters had no affect upon the outcome 
 
            of this decision.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  Whether Raymond Peterson's death arose out of and 
 
            in the course of his employment; and,
 
            
 
                 II.  The extent of claimant's entitlement to death and 
 
            medical benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the circumstances and events leading 
 
            up to December 19, 1990, and her account of a taped inter
 
            view of her husband's employer, Lloyd (Bud) Warren, con
 
            ducted by her attorneys shortly after her husband's death.  
 
            From her demeanor while testifying, claimant is found very 
 
            credible.
 
            
 
                 It is found that claimant is the surviving spouse of 
 
            Raymond Peterson who shall hereinafter be referred to as 
 
            Ray.
 
            
 
                 Ray worked for Bud Warren for approximately 29 years 
 
            before his death.  During the last 15 years he was a brick 
 
            and block mason.  For 15 years before that, he was a mason 
 
            tender.  On December 19, 1990, Ray collapsed and died while 
 
            working laying a brick wall with Warren and other employees 
 
            on a residential house project in Ames, Iowa.  The following 
 
            is specifically found with reference to the specific facts 
 
            and circumstances leading up to his death:
 
            
 
                 Shortly after 1:00 p.m. on December 19, 1990, Kevin 
 
            Whitford, M.D., a board certified specialist in internal 
 
            medicine at the McFarland Clinic in Ames, Iowa, was on call 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            at the Mary Greeley Medical Center emergency room in Ames, 
 
            Iowa, when the paramedics, in response to a 911 call, 
 
            brought to the emergency room a heart attack patient by the 
 
            name of Raymond L. Peterson.
 
            
 
                 At the time of his death, Ray was 50 years of age, 
 
            weighed 220-240 pounds with a height less than 6 feet.  
 
            Ray's wife was employed and usually left home at 4:30 a.m. 
 
            each morning.  Ray smoked 3-4 packs of cigarettes per day, 
 
            drank 3-4 cans of Coke per day at work and 2-3 cans at 
 
            night.  When working, he ate a cold meal consisting of a 
 
            meat sandwich, cupcakes, and a soft drink during a half hour 
 
            lunch break.  In the evening, Ray would eat a heaping plate 
 
            of meat, potatoes, vegetable, bread, butter and dessert.  
 
            For about a year before his death, Ray had been consuming 45 
 
            extra-strength Tylenol tablets several times a day.  This 
 
            was in addition to the regular consumption of Rolaid 
 
            tablets.  Ray was the type of person who never went to a 
 
            doctor, dentist or hospital.  Ray had a fear of heights.  In 
 
            the days before his death he was assigned to work in Ames 
 
            and used a commuter route from his residence in Nevada, Iowa 
 
            that avoided traffic congestion.  During his employment with 
 
            Warren, Ray was a good, conscientious employee and was 
 
            always on time for work.
 
            
 
                 During the week of December 9, 1990, Ray worked laying 
 
            brick at a North Grand Mall building in Ames, Iowa.  At this 
 
            job, he helped construct a plywood and plastic enclosed 
 
            shelter.  He was lifting and handling one-half inch thick 
 
            4 x 4 x 8 feet pieces of plywood.  Thereafter, he worked in 
 
            the enclosure heated by a kerosene-fired heater.  The out
 
            side temperatures ranged from 20-40 degrees Fahrenheit.
 
            
 
                 On Sunday, December 16, 1990, Ray suffered severe chest 
 
            pains radiating into this arms and numbness in one of his 
 
            hands after helping his wife clean the basement.  This work 
 
            required carrying bags of material up the basement steps.  
 
            Ray also complained of pressure under his rib cage and con
 
            sumed two rolls of Rolaid tablets and requested Alka-Seltzer
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            tablets.  Ray first thought he was having a heart attack but 
 
            later decided it was just gas.  On Monday, December 17, 
 
            1990, the weather was so inclement that Warren cancelled 
 
            work.
 
            
 
                 On Tuesday, December 18, 1990, Ray picked up a fellow 
 
            employee in the morning and drove to his work site that day 
 
            located at 3112 Maplewood Road in northwest Ames, Iowa using 
 
            his usual non-congested travel route.  Upon arrival, Ray 
 
            helped erect a plywood and paper-roofed shelter adjacent to 
 
            a residential home where Warren and his crew was to erect a 
 
            brick wall. The enclosure was heated by use of an open flame 
 
            from a propane tank. After building the enclosure, claimant 
 
            worked the rest of the day laying brick.  The temperature 
 
            that day was a few degrees below freezing.  Inside the 
 
            enclosure however the temperature ranged from 50-60 degrees 
 
            Fahrenheit.  The enclosure was fairly tight to keep out the 
 
            cold as a warm temperature is needed to properly set up the 
 
            mortar.  The door way consisted of a flap of the paper sub
 
            stance used and this was constructed in a manner to close 
 
            after entry and exit.  Tenders regularly traveled through 
 
            this door way to bring in brick and mortar.
 
            
 
                 Initially, the area next to the foundation inside the 
 
            enclosure had to be cleaned using a hammer to chop away 
 
            frozen materials.  Later on, Ray and Warren began laying 
 
            brick from opposite sides.  The bricks and mortar was pro
 
            vided to each of these men by their tenders.  Brick laying 
 
            ended at 3:30 and after striking (removing excess mortar) 
 
            the brick, Ray left work and returned home.  Sometime during 
 
            the day Ray told Warren of the Sunday chest pain and that he 
 
            first thought he had suffered a heart attack but later con
 
            cluded it was only gas.  That evening, Ray again complained 
 
            of chest, arm and hand pain.  He ate only soup for dinner 
 
            and complained of exhaustion.
 
            
 
                 The following day, Wednesday, December 19, 1990, Ray 
 
            again picked up his fellow employee and commuted to Ames in 
 
            the morning the usual way arriving at the work site at 
 
            approximately 8:00 a.m.  That day Ray was dressed in his 
 
            warmest clothes and wore heavy, insulated rubber boots, a 
 
            heavy coat and an insulated jacket.  At approximately 9:00 
 
            a.m., Ray and Warren again started laying brick.  The wall 
 
            was around 4 - 4 1/2 feet high from the work the day before, 
 
            and a 3 - 4 foot scaffold was erected to bring the wall up 
 
            to the eaves or over 9 feet from the ground.  At one time 
 
            Ray complained of a kink is his neck while working under the 
 
            roof eaves of the house.  The employee that Ray had been 
 
            commuting with began to experience flu-like symptoms and 
 
            Warren took him home.
 
            
 
                 At approximately noon, the crew broke for lunch.  Ray 
 
            and another employee went to the basement of the home which 
 
            was heated by a furnace to have lunch.  Ray only ate a part 
 
            of a sandwich and took a pain pill he had obtained a few 
 
            days earlier from his son.  Ray began to complain he was hot 
 
            and that he was having trouble breathing.  Ray went outdoors 
 
            and after Warren returned to the site, Ray sat in his truck 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            for a short time.  After the usual half-hour lunch break, 
 
            Ray and the crew returned to the shelter.  After obtaining a 
 
            striker tool from his toolbox, Ray attempted to climb the 
 
            short ladder to the scaffold and before he reached the top, 
 
            he collapsed on the scaffold.  Nearby persons and eventually 
 
            rescue personnel administered CPR and emergency procedures 
 
            and transported Ray to the Greeley Medical Center.  At the 
 
            hospital efforts to revive Ray continued under the direction 
 
            of Dr. Whitford.  These efforts failed and Ray was pro
 
            nounced dead at 1:35 p.m.  An autopsy was requested but the 
 
            family refused.
 
            
 
                 From the evidence presented, it is found that Ray's 
 
            death on December 19, 1990, arose out of and in the course 
 
            of his employment with Warren Masonry.  Specifically, the 
 
            physical work Ray performed on the day of his death was a 
 
            probable contributing cause of his death.  The death was due 
 
            to sudden cardiac arrest or heart attack.  This finding is 
 
            based upon the views of the treating hospital physician at 
 
            the time of death, Dr. Whitford, as expressed in his deposi
 
            tion testimony.  Although Ray had many contributing risk 
 
            factors such as heavy smoking, obesity, physically uncondi
 
            tioned, a family history suggestive of heart disease, a poor 
 
            diet and probable prior existing arteriosclerosis 
 
            (accumulating of deposits in the arteries), his work activ
 
            ity that day was one of the contributing factors leading to 
 
            the heart incident and death.
 
            
 
                 Dr. Whitford's opinions were challenged in several 
 
            respects by defendants.  First, there was a challenge that 
 
            Dr. Whitford was unaware that Ray's work was not physically 
 
            demanding. However, it is clear from the deposition that the 
 
            doctor was fully aware of the physical tasks Ray was doing 
 
            on the day of his death.  Also, the doctor admitted that in 
 
            many ways, what Ray was doing was not more stressful than 
 
            many tasks he could have performed at home such as painting 
 
            or shoveling sidewalks.  But again, this did not dissuade 
 
            the doctor from his views.
 
            
 
                 Defendants primarily relied upon the contrary views of 
 
            another board certified internist, Paul From, M.D.  Dr. From 
 
            does not causally relate Ray's heart attack to his work as a 
 
            mason at the time of death.  Dr. From based his opinion pri
 
            marily on the fact that despite a weakened, diseased heart, 
 
            Ray was conditioned or acclimated to that level of activity 
 
            and such work would not be unusually stressful on his heart.  
 
            This opinion was not given the same weight as the opinion of 
 
            Dr. Whitford.  Although both physicians have high qualifica
 
            tions, Dr. From admitted in his deposition testimony that he 
 
            testifies quite regularly in workers' compensation cases and 
 
            appears quite interested in doing so in the future.  The 
 
            undersigned believes that the views of such a professional 
 
            witness cannot be given the same weight over another physi
 
            cian of equal stature who does not appear as equally anxious 
 
            to testify in subsequent proceedings.  Finally, although his 
 
            contact with Ray was brief, Dr. Whitford is the only expert 
 
            to actually treat Ray and clinically observed his overall 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            condition.
 
            
 
                 The finding of a work-related heart attack is also 
 
            based upon a specific finding that Ray's work as a brick 
 
            layer on the day of his death was physical exertion greater 
 
            than the  normal non-employment life of Ray or any other 
 
            person.  Although Ray could occasionally work harder at home 
 
            than at work, generally the laying of brick, even if a ten
 
            der provides the brick and mortar, over a full day with only 
 
            a few breaks in activity is generally more strenous than 
 
            everyday non-employment life.
 
            
 
                 The finding of a work-related death was not based on 
 
            the evidence suggesting that carbon monoxide from the space 
 
            heater in the enclosure contributed to Ray's death.  
 
            Claimant presented health and safety materials from federal 
 
            and state agencies.  The general accuracy of these documents 
 
            were largely verified by Drs. From and Whitford.  However, 
 
            no expert opinion was presented opining that carbon monoxide 
 
            was likely present in the structure erected by Warren's crew 
 
            or that this gas was a likely contributor to Ray's death. 
 
            Dr. From stated that it was only possible.  Dr. Whitford did 
 
            not render any specific opinion relating carbon monoxide to 
 
            Ray's death.
 
            
 
                 Dr. Whitford stated that if Ray had sought treatment 
 
            from him when the chest pains occurred, claimant would have 
 
            been hospitalized.  Given Dr. Whitford's opinion that Ray's 
 
            work contributed to his death, it is logical to conclude 
 
            that if Ray had sought care instead of continuing to work, 
 
            Ray's chances of survival would have increased.  Therefore, 
 
            Ray's decision to ignore the chest pains, shortness of 
 
            breath and hot flashes and to continue working on December 
 
            19, 1990, also was a contributing cause of his death.
 
            
 
                 Finally, it is found that claimant's burial expenses 
 
            exceeded the sum of $1,000 and that the requested medical 
 
            expenses set forth in the prehearing report constituted rea
 
            sonable and necessary expense of Ray's last work-related 
 
            heart condition.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I.  Claimant is seeking benefits as a result of the 
 
            death of her husband.  Such benefits are available under 
 
            Chapter 85, Code of Iowa because a work injury is defined in 
 
            the statute to include death as a result of injury. Iowa 
 
            Code section 85.61(5)(a).  Death from an occupational dis
 
            ease is likewise compensable under chapter 85A of the Code.  
 
            Iowa Code section 85A.12.  However, an employer is liable 
 
            for death benefits only if claimant establishes by a prepon
 
            derance of the evidence that the death arose 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 Community Sch. 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 impair
 
            ments, and a work connected injury which more than slightly 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  Bradshsaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language and the expert opinion may be accepted 
 
            or rejected, in whole or in part, by the trier of fact. 
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The 
 
            weight to be given to such an opinion is for the finder of 
 
            fact, and that may be affected by the completeness of the 
 
            premise given the expert and other surrounding circum
 
            stances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
            867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with non-expert testi
 
            mony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Meyer 
 
            & Co. 217 N.W.2d 531, 536 (1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith 
 
            v. All-American Inc. 290 N.W.2d 348, 354 (Iowa 1980).  In 
 
            the case of a pre-existing condition, an employee is not 
 
            entitled to recover for the results of a preexisting injury 
 
            or disease but can recover for an aggravation thereof which 
 
            resulted in the disability found to exist.  Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963).
 
            
 
                 In work injuries involving the heart, Iowa claimants 
 
            with preexisting circulatory or heart conditions are permit
 
            ted, upon proper medical proof, to recover worker's compen
 
            sation benefits only when the employment contributes some
 
            thing substantial to increase the risk of injury or death.  
 
            The employment contribution must take the form of an exer
 
            tion greater than non-employment life.  Sondag, 220 N.W.2d 
 
            903 (Iowa 1974).  The comparison, however, is not with the 
 
            employee's usual exertion in his employment but with exer
 
            tions of normal non-employment life of this or any other 
 
            person.  Id.  These exertions may be physical or emotional.  
 
            Swalwell v. William Knudson and Son, Inc., II Iowa 
 
            Industrial Commissioner Report 385 (Appeal Decision 1982).  
 
            The Sondag rule is favored by Professor Larson in his trea
 
            tise of workers' compensation. See 1A Larson, Workmen's 
 
            Compensation Law, section 38.83 at 7-172.  According to 
 
            Professor Larson, the causative test is a two part analysis.  
 
            First, there is a medical causation test in which the medi
 
            cal experts must be relied upon to causally relate the 
 
            alleged stress (emotional or physical) to the heart injury.  
 
            Second, there is a legal causation test to determine if the 
 
            medically related stress is more than the stress of everyday 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            non-employment life. 
 
            
 
                 In the case sub judice, both tests were met.  As 
 
            pointed out in the Sondag case in quoting Professor Larson's 
 
            treatise on workers' compensation that the legal test com
 
            parison is not with the worker's usual exertion in his 
 
            employment but with exertions of normal non-employment life.  
 
            Sondag, 220 N.W.2d at 905.    
 
            
 
                 Also, it was found that Ray's decision to ignore his 
 
            symptoms and continue working contributed to his death.  
 
            Consequently, the death can be found work-related indepen
 
            dent of the Sondag theory under the decision of Varied 
 
            Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984).  In 
 
            Sumner, a heart attack was held to be work-related when a 
 
            truck driver chose to ignore his symptoms and continue 
 
            driving.
 
            
 
                 II.  As claimant has shown that Ray's death arose out 
 
            of and in the course of employment, the extent of such bene
 
            fits must be determined.  First, the employer is liable for 
 
            the expenses of the deceased employee's last illness, Iowa 
 
            Code section 85.27 & 29, for burial expenses of decedent not 
 
            to exceed the sum of $1,000.00, Iowa Code section 85.28, and 
 
            for a payment to the Second Injury Fund in the amount of 
 
            $4,000.00, Iowa Code section 85.65.  Secondly, weekly bene
 
            fits are also available from the employer for surviving 
 
            dependants of a deceased employee.  Such benefits are paid 
 
            in the same amount and manner as work injuries or occupa
 
            tional diseases except that the benefits are paid to the 
 
            surviving spouse for life or until remarriage.  Iowa Code 
 
            section 84.3.  A surviving spouse is conclusively presumed 
 
            dependant unless there has been a willful desertion of dece
 
            dent by the spouse.  Iowa Code section 85.41(1), 85A.6.
 
            
 
                 In the case sub judice, the requested medical expenses 
 
            and burial expenses were found work-related and they will be 
 
            awarded.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant weekly death bene
 
            fits at a rate of two hundred three and 13/l00 dollars 
 
            ($203.13) per week from December 19, 1990, until death or 
 
            re-marriage, whichever occurs first.
 
            
 
                 2.  Defendants shall pay to claimant burial expenses 
 
            not to exceed the sum of one thousand and no/l00 dollars 
 
            ($1,000) and the requested medical expenses.
 
            
 
                 3.  Defendants shall pay to the Second Injury Fund the 
 
            sum of four thousand and no/l00 dollars ($4,000).
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dayton Countryman
 
            Attorney at Law
 
            1001 5th St
 
            P O Box 28
 
            Nevada  IA  50201
 
            
 
            Mr. Thomas Henderson
 
            Attorney at Law
 
            1300 1st Interstate Bank Bldg
 
            Des Moines  IA  50309
 
            
 
            Mr. Joseph M. Isenberg
 
            Attorney at Law
 
            116 Kellogg Ave
 
            Ames  IA  50010
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed March 24, 1992
 
                                          LARRY P. WALSHIRE   
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAREN S. PETERSON,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 981365
 
            LLOYD R. WARREN d/b/a WARREN  :
 
            MASONRY,                      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY OF CEDAR RAPIDS, IOWA,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Non-precedential, death case.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
KAREN S. PETERSON,    
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                         File No. 981365
 
LLOYD R. WARREN d/b/a WARREN    
 
MASONRY,    
 
                                          R E M A N D
 
     Employer,   
 
                                         D E C I S I O N
 
and         
 
            
 
UNITED FIRE & CASUALTY COMPANY  
 
OF CEDAR RAPIDS, IOWA,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
This case is on remand from the Iowa District Court for Story County.  
 
The district court's ruling on petition for judicial review 
 
(hereinafter ruling) remanded this case "for further action consistent 
 
with the holdings of this decision."  The district court's ruling was 
 
not appealed by defendants, the employer and its insurer, therefore 
 
that ruling is the law of this case for purposes of this remand.  The 
 
district court made the following findings:
 
 
 
1.  "The Industrial Commissioner's finding that Raymond Peterson was 
 
not engaged in heavy physical labor is simply unsupported by the 
 
record."  (Emphasis in the original) (Ruling, page 19)
 
 
 
2.  The work the decedent was involved in constituted heavy physical 
 
labor.  (Ruling, p. 20)
 
 
 
3.  Dr. From's opinion that the heart attack was not work related was 
 
based on erroneous factual assumptions.  (Ruling, p. 20)
 
 
 
4.  "The Industrial Commissioner's finding that Dr. Whitford's opinion 
 
was based on a faulty assumption, to wit: That the decedent was working 
 
in 'extremely cold weather' is also unsupported by the evidence in this 
 
record."  (Ruling, p. 24)
 
 
 
5.  "For the Industrial Commissioner to find that Raymond's work 
 
conditions, including 'erecting a brick wall up to the eaves of the 
 
house, placing and lifting bricks, placing the mud in the area where 
 
the bricks were to be located, scraping off the mud, and repeating the 
 
process' did not rise to the level of work exertion he had in his 
 
non-employment life is clearly unsupported by the evidence in this 
 
case."  (Ruling, p. 29)
 
 
 
6.  "[T]he finding of the Industrial Commissioner that Dr. Whitford's 
 
testimony and opinion that the physical work Raymond was doing was a 
 
contributing cause of his death was based on faulty assumptions, 
 

 
 
 
 
 
 
 
 
 
including the assumption that Raymond was working in the 'extreme' cold 
 
and was engaged in 'heavy physical labor prior to his heart attack,' is 
 
simply not supported by the evidence."  (Ruling, p. 30)
 
 
 
It should be noted that it is not the responsibility nor within the 
 
authority of the industrial commissioner to correct what the industrial 
 
commissioner believes to be errors made by the district court on 
 
judicial review of the final agency action filed June 30, 1993.  
 
Therefore, the ruling of the district court will be considered the law 
 
of this case even though the industrial commissioner believes the 
 
district court applied the wrong standard of judicial review, made its 
 
own findings of fact and applied the wrong standard for determining 
 
whether claimant had proved the legal test for compensability in heart 
 
attack cases.  The district court compared claimant's work exertion to 
 
the work exertion of claimant's non-employment life.
 
 
 
The court in Sondag v. Ferris Hardware, 220 N.W.2d 903, 905, (Iowa 
 
1974), describes the standard:
 
 
 
In the first situation the work ordinarily requires heavy exertions 
 
which, superimposed on an already-defective heart, aggravates or 
 
accelerates the condition, resulting in compensable injury....
 
   ... See 1A Larson's Workmen's Compensation Law 38.83, p. 7-172:
 
   ....
 
"If there is some personal causal contribution in the form of a 
 
previously weakened or diseased heart, the employment contribution must 
 
take the form of an exertion greater than that of nonemployment life. 
 
*** Note that the comparison is not with this employee's usual exertion 
 
in his employment but with the exertions of normal nonemployment life 
 
of this or any other person."  (Emphasis in the original.)
 
(Citations omitted.)
 
 
 
                               ISSUE
 
 
 
The issue on remand by the district court is whether Dr. From's 
 
testimony was more credible than Dr. Whitford's.  (Ruling, p. 33)
 
 
 
                           FINDINGS OF FACT
 
 
 
For purposes of these findings of fact the findings of the district 
 
court are accepted. 
 
 
 
Dr. From's opinion that the heart attack was not work related was based 
 
on erroneous factual assumptions.  (Ruling, p. 20)  Dr. Whitford's 
 
opinion was not based on faulty assumptions.  (Ruling, pp. 24, 30)  Dr. 
 
Whitford offered the opinion that claimant's heart attack was caused by 
 
his working conditions.  Dr. From did not causally relate claimant's 
 
heart attack to his work as a mason at the time of death.
 
 
 
                          CONCLUSIONS OF LAW
 
 
 
In work injuries involving the heart, Iowa claimant with preexisting 
 
circulatory or heart conditions are permitted, upon proper medical 
 
proof, to recover workers' compensation benefits only when the 
 
employment contributes something substantial to increase the risk of 
 
injury or death.  The employment contribution must take the form of an 
 
exertion greater than nonemployment life.  Sondag v. Ferris Hardware, 
 
220 N.W.2d 903 (Iowa 1974).  The comparison, however, is not with the 
 
employee's usual exertion in his employment but with exertions of 
 
normal nonemployment life of this or any other person.  Id.  Swalwell 
 
v. William Knudson and Son, Inc., II Iowa Industrial Commissioner 
 
Report 385 (Appeal Decision 1982).  The Sondag rule is favored by 
 
Professor Larson in his treatise of workers' compensation.  See 1A 
 
Larson, Workmen's Compensation Law, 38.83 at 7-172.  According to 
 
Professor Larson, the causative test is a two part analysis.  First, 
 
there is a medical causation test in which the medical experts must be 
 
relied upon to causally relate the alleged stress (emotional or 
 

 
 
 
 
 
 
 
 
 
physical) to the heart injury.  Second, there is a legal causation test 
 
to determine if the medically related stress is more than the stress of 
 
everyday nonemployment life.
 
 
 
Claimant bears the burden of proof to show that the heart attack and 
 
resulting death of Raymond Peterson arose out of Raymond's employment.  
 
To meet the "medical test," it must be shown that the fatal heart 
 
attack was caused by work activity.  Claimant has offered the testimony 
 
of Dr. Whitford in this regard.  Based on the district court's 
 
findings, Dr. Whitford's is the only medical opinion based on correct 
 
assumptions.  It was Dr. Whitford's opinion that the decedent's work 
 
was the cause of his heart attack.  Claimant has met her burden of 
 
showing that the decedent's work caused his heart attack.  Claimant has 
 
met the medical test.
 
 
 
Therefore, it must be found that the decedent's heart attack arose out 
 
of and in the course of his employment.
 
 
 
                                 ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendants shall pay to claimant weekly death benefits at a rate 
 
of two hundred three and 13/100 dollars ($203.13) per week from 
 
December 19, 1990 until death or re-marriage, whichever occurs first.
 
 
 
That defendants shall pay to claimant burial expenses not to exceed the 
 
sum of one thousand and 00/100 dollars ($1,000.00) and the requested 
 
medical expenses.
 
 
 
That defendants shall pay to the Second Injury Fund the sum of four 
 
thousand and 00/100 dollars ($4,000.00).
 
 
 
That defendants shall pay interest on weekly benefits awarded herein as 
 
set forth in Iowa Code section 85.30.
 
 
 
That defendants shall file activity reports on the payment of this 
 
award as requested by this agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of December, 1994.      
 
                               ________________________________                 
 
                                BYRON K. ORTON           
 
                                INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Dayton Countryman
 
Attorney at Law
 
P.O. Box 28
 
Nevada, Iowa 50201-0028
 
 
 
Mr. Joseph M. Isenberg
 
Attorney at Law
 
323 Main Street
 
Ames, Iowa 50010
 
 
 
Mr. Thomas Henderson
 
Attorney at Law
 
317 Sixth Ave., Ste 1200
 
Des Moines, Iowa 50309-4110
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                2202
 
                                Filed December 30, 1994
 
                                Byron K. Orton
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
KAREN S. PETERSON,    
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                       File No. 981365
 
LLOYD R. WARREN d/b/a WARREN    
 
MASONRY,    
 
                                         R E M A N D
 
     Employer,   
 
                                       D E C I S I O N
 
and         
 
            
 
UNITED FIRE & CASUALTY COMPANY  
 
OF CEDAR RAPIDS, IOWA,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
2202
 
 
 
On remand it was found that the only medical opinion based on correct 
 
assumptions was that there was a causal connection between the 
 
decedent's work and his heart attack.  Claimant established that there 
 
was a causal connection between decedent's work and his heart attack.  
 
Claimant was awarded death benefits.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT SCHNECK,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 981370
 
            TRANSPORT & DRAYAGE COMPANY   :
 
            OF MISSOURI,                  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on June 8, 1992, at Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on 
 
            October 8, 1990.  The record in the proceedings consists of 
 
            the testimony of claimant and Lloyd Langston; and, 
 
            claimant's exhibits 1 through 3, including subparts of said 
 
            exhibits.
 
            
 
                 The hearing assignment order of April 22, 1992, closes 
 
            the record to further evidence or activity of defendants for 
 
            defendants' failure to file an answer as previously ordered 
 
            in the prehearing assignment order filed on or about March 
 
            21, 1992.  Defendants' motion to dismiss was deemed, 
 
            however, a motion to reconsider the suspension of 
 
            defendants' evidence and activity.  Said ruling on the 
 
            motion was made by Deputy Industrial Commissioner, Helenjean 
 
            Walleser, on June 5, 1992.
 
            
 
                 At the beginning of the hearing, defendants had 
 
            requested the undersigned deputy to rule on a motion to set 
 
            aside sanctions and motion for continuance filed June 8, 
 
            1992, the date of the hearing.  The undersigned deputy 
 
            considered said motions to be further activity of the 
 
            defendants, which activity was barred by the June 5, 1992 
 
            hearing.  The deputy therefore did not rule on the same.  
 
            Said action by the undersigned deputy had the same effect as 
 
            a denial and said deputy did indicate that if in fact he 
 
            allowed this activity by the defendants said motions would 
 
            have been denied.
 
            
 
                                      ISSUES
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The claimant's attorney filed a prehearing report as 
 
            required by the hearing assignment order.  Since the 
 
            defendants were precluded from activity, said form does not 
 
            adequately conform to such a situation.  Claimant therefore 
 
            filed said order indicating all issues were in dispute since 
 
            the form gave the only other alternative that said issues or 
 
            certain issues were stipulated to.  Although said prehearing 
 
            report because of those circumstances indicate all issues 
 
            are in dispute, the undersigned is taking claimant's 
 
            contentions on certain issues, such as the $554.13 rate, the 
 
            $6,280 medical bills and the 2,209.6 medical miles incurred 
 
            by the claimant as a fact and not an issue.  The undersigned 
 
            therefore sets out the following as issues:
 
            
 
                 1.  Whether claimant's alleged injury on October 8, 
 
            1990, arose out of and in the course of his employment;
 
            
 
                 2.  Whether claimant's alleged disability and medical 
 
            condition is causally connected to an October 8, 1990 work 
 
            injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 4.  Whether claimant is an odd-lot candidate.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 40 year old who has had one year of 
 
            college.  Claimant began work for defendant employer on 
 
            September 26, 1990, as an over-the-road cross-country truck 
 
            driver driving in a six state area.  Claimant had a DOT 
 
            physical prior to beginning work.  Claimant testified that 
 
            when he was hired by the defendant employer, the general 
 
            manager indicated he would receive 25 percent of the gross 
 
            revenue which was to amount to $600 to $800 per week.  If 
 
            claimant had a long haul and was out five days a week, his 
 
            income was $800 to $900 per week.  Claimant initially had 
 
            what would be considered an orientation or familiarization 
 
            to familiarize himself with locations and pickup.  This 
 
            lasted a few days.  During his first full driving week which 
 
            ended up being his only full week of employment for 
 
            defendant employer prior to his injury, claimant indicated 
 
            that on that Monday he only went to pick up the tractor he 
 
            was to drive and did not do any other driving.  Claimant, in 
 
            the following four days in which he drove, earned just under 
 
            $600.  Claimant felt the one day should be excluded since 
 
            that was not actually a driving day in which he could earn 
 
            money carrying a load and therefore has determined that 
 
            based on this four days of income his rate should be 
 
            $554.13.  The undersigned finds there being no contrary 
 
            evidence, this is the rate for any benefits that might be 
 
            allowed herein.
 
            
 
                 Claimant described the accident that occurred on 
 
            October 8, 1990.  He was driving a truck over the road and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was entering the town of Iowa Falls, Iowa.  Claimant 
 
            indicated that to avoid a collision with another vehicle, 
 
            his truck went into a yard, jumped a curb and claimant was 
 
            knocked unconscious.  Claimant indicated he was lying on the 
 
            engine as a result of the accident and was taken to the 
 
            hospital.  Claimant said he had a knot on the left side of 
 
            his head, two teeth broken, his neck was stiff and he felt 
 
            as if his left arm was broken and he hurt from head to toe.  
 
            Claimant indicated that he called the employer shortly 
 
            thereafter and the employer indicated he should continue to 
 
            drive.  Claimant indicated he was not able to drive and if 
 
            he were, the truck was too badly damaged to be driven.
 
            
 
                 Claimant related some past injuries, namely, a 
 
            laminectomy in 1979 for a herniated disc and another motor 
 
            vehicle accident in 1983.  He contends none of these 
 
            injuries are causing his current problems.
 
            
 
                 Claimant related his work history which involved being 
 
            a private policeman, in charge of shipping and receiving 
 
            department, city delivery driver and a cross-country driver, 
 
            all prior to beginning work for defendant employer.  He 
 
            indicated that just before becoming employed with defendant 
 
            employer, he was to be a dispatcher and broker for a truck 
 
            company but it went broke.  Claimant contends he had no work 
 
            restrictions prior to October 8, 1990, but a doctor did say 
 
            he should not lift too much because of his low back surgery 
 
            in 1979.
 
            
 
                 The undersigned was alerted prior to the hearing that 
 
            claimant had a physical condition referred to as 
 
            agoraphobia.  Claimant indicated this is a condition in 
 
            which if one is in tight places or there are too many people 
 
            or too much noise around or movement, it affects his 
 
            peripheral vision causing a fast and irregular heart beat 
 
            resulting in claimant having a hard time breathing.  
 
            Claimant did leave the hearing room on one occasion when 
 
            there was considerable back and forth argument or discussion 
 
            concerning certain disputed issues.  Claimant said he did 
 
            not have this condition prior to October 8, 1990.  He 
 
            explained that approximately four months after he had seen a 
 
            Dr. Rowe, who he had seen for the first time in December 
 
            1990, he had a double vision problem and objects always 
 
            appear to be to the left and he would see double.  He 
 
            indicated he has been treated with different eye lens to 
 
            help correct the problem.  He indicated he had no prior 
 
            problem or did not wear glasses prior to October 8, 1990.  
 
            Claimant related the various doctors he has seen and the 
 
            nature of some of his treatment.  Claimant acknowledged that 
 
            a Dr. Zarr released him to go back to work on December 3, 
 
            1991.  He said at that time he still had double vision and 
 
            pain down his left arm and leg and back.  He said driving a 
 
            truck would not be possible, both because of his double 
 
            vision and his inability to satisfactorily drive.
 
            
 
                 Claimant indicated that he is in debt, borrowing on his 
 
            credit card and life insurance because of defendants' 
 
            actions and not paying benefits.  He indicated that in 
 
            December 1991, he received some workers' compensation 
 
            benefits sporadically and then they would stop and begin 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            again.  He indicated that he sent to the defendants his 
 
            medical bills and they still haven't paid them.  He related 
 
            the total bills outstanding are $6,280.09 at this time.  
 
            Claimant emphasized that all of his current medical problems 
 
            are caused by his October 8, 1990 injury.  He indicated that 
 
            one of his eyes is higher than the other and his left arm, 
 
            although improving, still results in him dropping things.  
 
            He indicated he does not have motor skills and it takes a 
 
            long time for him to write his name.  Claimant said he has 
 
            been referred to a psychiatrist because of anxiety attacks.  
 
            He is on medication.  He indicated his current restrictions 
 
            are that he cannot drive a car and cannot lift over 20 
 
            pounds.  Claimant testified he has applied for no work since 
 
            his October 8, 1990 injury.  He said he cannot go into a 
 
            restaurant or grocery store because the lights and activity 
 
            affect him.  He indicated he recently went into a 7-Eleven 
 
            store and had to leave because of his agoraphobia.  Claimant 
 
            has no income and is living on his wife's income.  Claimant 
 
            testified if he had his regular hours a typical work week 
 
            would result in $972.73 gross per week and his rate with two 
 
            exemptions would be $554.13.
 
            
 
                 Lloyd Langston, a rehabilitation counselor for the 
 
            Kansas Rehabilitation and Clinical Consultants, testified 
 
            his first contact with claimant was May 29, 1992.  His 
 
            report is reflected in claimant's exhibit 2.  Mr. Langston's 
 
            report pretty well speaks for itself but he testified that 
 
            claimant cannot return to truck driving as he could not 
 
            perform the  necessary duties.  In addition, his vision and 
 
            other problems would cause him to be totally unable to 
 
            drive.  He further opined that given claimant's complete 
 
            range of injury and physical conditions, he could not engage 
 
            in any substantial employment in the labor market.  On page 
 
            4 of his report, claimant's exhibit 2, he indicated that 
 
            claimant lost 100 percent of his ability to earn wages at 
 
            the current time.  He further wrote that given his 
 
            experience working with severely disabled individuals over 
 
            the past 15 years, and claimant's lack of marketable 
 
            transferable skills, his unlikely success at further 
 
            educational endeavors, and his previous types of employment 
 
            leaves claimant unemployable and unplaceable in the 
 
            competitive labor market to the current time.  He further 
 
            wrote that if his condition should improve in the future, he 
 
            may then be a candidate for vocational rehabilitation 
 
            services.  Mr. Langston further emphasized that claimant is 
 
            not capable due to his condition to perform part-time work.  
 
            He indicated retraining would not benefit claimant.  He 
 
            indicated claimant has trouble comprehending the written 
 
            word and he cannot maintain a train of thought and that 
 
            these would be problems preventing claimant from getting 
 
            more education.
 
            
 
                 James F. Holleman, Jr., D.O., testified through his 
 
            deposition taken on June 3, 1992.  Dr. Holleman testified 
 
            that his practice is limited to injury rehabilitation.  He 
 
            described this as a practice in which he has an active 
 
            strength hardening progressive resistance exercise type 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            program that he utilizes at his clinic.  He indicated that 
 
            he gets referrals from physicians and insurance companies of 
 
            patients for rehabilitation from injured conditions and 
 
            injuries resulting from work-related injuries, auto 
 
            injuries, personal injuries, or any other type of injury, 
 
            orthopedic or non-surgical, etc.  His deposition is 
 
            claimant's exhibit 3(f).  The doctor indicated he has been 
 
            operating his clinic for two years and before that time he 
 
            was in private practice in Las Vegas doing essentially the 
 
            same thing.  Attorney Baker's objection to the doctor giving 
 
            any opinions is overruled (Claimant's Exhibit 3(f), page 9).  
 
            Said attorney's continuous objections as to this particular 
 
            doctor's opinions will be continuously hereafter overruled 
 
            for all the same reasons.
 
            
 
                 The doctor indicated he first saw claimant on January 
 
            14, 1992, when claimant was referred to him for disability 
 
            evaluation.  He related the various medical records and 
 
            functional capacity assessments that he had at the time of 
 
            his evaluation (Cl. Ex. 3(f), pp. 11, 12).  The doctor gave 
 
            an approximate 128 page deposition.  The undersigned 
 
            believes that the reports of the doctor, both those attached 
 
            as deposition exhibits and those put separately as 
 
            additional exhibits, fully set out the doctor's conclusions.  
 
            The doctor did emphasize on more than one occasion that the 
 
            tests that were given are also done for purposes of 
 
            revealing any malingering.  He indicated that all 
 
            malingering tests were negative (Cl. Ex. 3(f), p. 26).  In 
 
            fact, he indicated on page 100 that each test is done three 
 
            times to weed out the malingerers.  Page 45 through 48 of 
 
            claimant's exhibit 1(b) is the doctor's injury rehab 
 
            center's April 14, 1992 report.  At that time, he opined 
 
            that claimant's whole person impairment was 50 percent.  His 
 
            diagnosis is shown on page 46 and included but not limited 
 
            to a closed head trauma, a brain stem injury with 
 
            significant cranial nerve involvement, ringing in the ears, 
 
            tinnitus, traumatic cerebral syndrome, per brain mapping 
 
            performed by Dr. Egea on March 17, 1992.  Neurological 
 
            difficulties include memory loss, ability to recall, mood 
 
            changes, decreased concentration span, insomnia, headaches, 
 
            dizziness and diplopia, chronic with patient already having 
 
            had to change his lenses four times.
 
            
 
                 A January 14 disability evaluation report represented 
 
            by pages 49 through 60 of claimant's exhibit 1(b) are even 
 
            more detailed.  At that time, the doctor specifically rated 
 
            certain impairments to certain disorders or problems that 
 
            claimant had.  At that time, he came up with a 42 percent 
 
            whole permanent partial impairment.  In that 42 percent, he 
 
            had related 10 percent to a specific disorder of the lumbar 
 
            spine.  He indicated a Grade II intervertebral disc, 
 
            surgically treated with claimant having a laminectomy of L5-
 
            S1 in 1979 with residual symptoms.  He indicated that the 
 
            preexisting surgery with no residual symptoms have become 
 
            symptomatic since claimant's October 8, 1990 injury.  The 
 
            undersigned interprets this to mean that even though there 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            had been prior injury and prior impairment, there is no 
 
            residuals of that prior impairment as of October 8, 1990.  
 
            The undersigned therefore understands that this current 
 
            impairment from that is the result of claimant's October 8, 
 
            1990 injury having substantially aggravated this back 
 
            condition and thereby contributing to his current 
 
            impairment.
 
            
 
                 The test of Fernando M. Egea, M.D., Neurology-
 
            Psychiatry, Electromyograhy-Electroencephalography, is 
 
            represented by claimant's exhibit 1(c).  Dr. Egea concluded 
 
            that claimant had a mildly abnormal topographic brain 
 
            mapping that could be compatible with traumatic cerebral 
 
            syndrome (Cl. Ex. 1(c)).  This report is dated March 17, 
 
            1992.  On his March 24, 1992 letter, Dr. Egea indicated that 
 
            in regards to claimant's head trauma and the accident, the 
 
            patient will recover and did have a mild traumatic cerebral 
 
            syndrome which is mildly residual now and will do alright 
 
            from this point of view (Cl. Ex. 1(c), p. 68).
 
            
 
                 Page 85 of claimant's exhibit 1(h) indicates that 
 
            claimant had a minimal annular bulge at L4-L5 L5-S1 levels.  
 
            Claimant's exhibit 1(h), pages 87 and 88, reflects a May 1, 
 
            1991 report of Dan M. Gurba, M.D.  The doctor indicated that 
 
            he would rate claimant's permanent partial impairment from 
 
            the cervical and musculoligamentous strains that he 
 
            sustained in the most recent work-related accident in 
 
            October 1990 as 25 percent of the body as a whole.  He 
 
            further indicated this does include both cervical and lumbar 
 
            injuries and does not include any rating for his previous 
 
            injuries.
 
            
 
                 Claimant's exhibit 1(i) is a report of James S. Zarr, 
 
            M.D., dated December 3, 1991, in which he opined a 7 percent 
 
            whole body permanent impairment for claimant's neck and back 
 
            pains combined.  He also indicated he is releasing claimant 
 
            to work with a restriction of no level lifting or carrying 
 
            greater than 40 pounds, no lifting from the floor greater 
 
            than 30 pounds, no overhead lifting greater than 35 pounds, 
 
            no pushing greater than 90 pounds, no pulling greater than 
 
            103 pounds, and no repeated squatting (repeated means 
 
            greater than 30 times per hour).
 
            
 
                 The undersigned has reviewed and sees no importance of 
 
            setting out anything further concerning the claimant's 
 
            exhibits 1(k) through 1(l).
 
            
 
                 Claimant's exhibit 1(m), page 124, reflects a report 
 
            from Stephen L. Reintjest, M.D. dated August 12, 1991, in 
 
            which he indicated claimant had significant visual 
 
            impairment and he did not think claimant should return to 
 
            being a truck driver.  Claimant's exhibit 1(o), page 178, is 
 
            a June 11, 1991 report of Dr. Zarr in which he indicated 
 
            claimant had a normal EMG and nerve conduction study and 
 
            that there was no electrodiagnostic evidence of 
 
            radiculopathy, plexopathy, neuropathy or peripheral nerve 
 
            entrapment.
 
            
 
                 Claimant's exhibit 1(q), page 262, is an August 12, 
 
            1991 letter of Gerhard W. Cibis, M.D., in which he indicated 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant had lack of fusion (double vision) post trauma.  He 
 
            indicated glasses, prisms and surgery will be used but 
 
            cannot be guaranteed to restore single vision.  He indicated 
 
            claimant's double vision is keeping him from returning to 
 
            work and at that time he could not predict when, if ever, 
 
            claimant would be able to return to work.  He indicated that 
 
            claimant has every desire to be better but will never be 
 
            able to achieve that.  Claimant's exhibit 1(q), page 254, 
 
            refers to the October 1, 1991 operative procedure concerning 
 
            claimant's eye performed by Dr. Cibis.
 
            
 
                 The undisputed evidence shows that claimant incurred a 
 
            work injury on October 8, 1990.  There is substantial 
 
            medical evidence which further shows that claimant incurred 
 
            substantial injuries to various parts of his body.  The 
 
            undersigned believes that the medical report of Dr. Holleman 
 
            is a good summary of the overall medical situation of 
 
            claimant and substantially sets out the permanent impairment 
 
            as a result of this work injury.  The undersigned also 
 
            believes that even though part of the 50 percent impairment 
 
            was in reference to claimant's lumbar area and referred to a 
 
            laminectomy in 1979, it seems to indicate that there was no 
 
            residuals from that injury and whatever impairment now 
 
            exists is because of the October 8, 1990 work injury.  Under 
 
            Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991), 
 
            it would also bear out that there would be no impairment 
 
            from the 1979 injury attributable to claimant's October 8, 
 
            1990 injury.  Claimant was working on October 8, 1990, and 
 
            had no effects of the 1979 or 1983 injuries.  On page 59 of 
 
            claimant's exhibit 1b, the doctor opined that claimant had 
 
            reached maximum medical improvement.  It also notes that 
 
            between the January 14, 1992 and the April 14, 1992 report, 
 
            the doctor increased claimant's permanent impairment from 42 
 
            to 50 percent.  The undersigned would normally find in this 
 
            case that claimant is entitled to healing period benefits 
 
            beginning October 8, 1990 through January 14, 1992, but 
 
            since the undersigned is finding total permanent disability, 
 
            healing period is a moot issue.
 
            
 
                 The undersigned finds that defendants shall pay 
 
            claimant's medical, which is in the amount of $6,280.09.  It 
 
            appears there are other bills that may be outstanding. The 
 
            undersigned finds that claimant has currently incurred 
 
            2,209.6 medical miles as a result of his medical treatment 
 
            which shall be paid by defendants.  The undersigned also 
 
            finds that claimant was an employee of defendant employer on 
 
            October 8, 1990.
 
            
 
                 The undersigned finds that claimant is currently 
 
            unemployed and that he is unemployable considering his age, 
 
            intelligence, pre and post-October 8, 1990 medical history, 
 
            his work history, transferable skills, his inability to 
 
            engage in employment for which he is fitted, the nature, 
 
            location and severity of his injuries, the healing period, 
 
            his education and functional impairment.  The undersigned 
 
            believes that claimant's exhibit 2, the report of the 
 
            vocational consultant, and the consultant's testimony 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            overwhelmingly supports these findings and conclusions.  
 
            Claimant currently has a complete loss of income.
 
            
 
                 Taking all those items that are considered in 
 
            determining industrial disability, most of which have been 
 
            referred to above and all the other criteria, the 
 
            undersigned finds that claimant is permanently totally 
 
            disabled.
 
            
 
                 The undersigned finds it is unnecessary to determine 
 
            whether claimant is an odd-lot candidate in light of the 
 
            above findings.
 
            
 
                 Claimant seems to be relying on 86.13(4) penalty 
 
            benefits even though it is not set out in the prehearing 
 
            report.  Even if it were, the hearing assignment order did 
 
            not have it set as an issue and therefore would not be an 
 
            issue the undersigned could decide.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 8, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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 he is 
 
            fitted.  Olson v. Goodyear Service 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter 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.
 
            
 
                 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 healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  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.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  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, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Also disputed is 86.13(4) (penalty benefits).  This 
 
            issue, however, was not listed as an issue on the hearing 
 
            assignment order and, accordingly, the undersigned is 
 
            without jurisdiction to consider it.  See Joseph Presswood 
 
            v. Iowa Beef Processors, (Appeal Decision filed November 14, 
 
            1986) holding an issue not noted on the hearing assignment 
 
            order is an issue that is waived.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant was an employee of defendant employer on 
 
            October 8, 1990, at which time he incurred a work injury 
 
            which arose out of and in the course of his employment and 
 
            that said work injury caused claimant to incur substantial 
 
            permanent injuries to various parts of his body.
 
            
 
                 Claimant has a substantial permanent functional 
 
            impairment as a result of his October 8, 1990, work injury.
 
            
 
                 Claimant's permanent impairment, medical condition and 
 
            disabilities are causally connected to his October 8, 1990 
 
            work injury.
 
            
 
                 Claimant incurred medical bills which amount to at 
 
            least $6,280, and which are caused by claimant's October 8, 
 
            1990 work injury, and that defendants are to pay all of 
 
            claimant's medical bills connected with his October 8, 1990 
 
            injury.
 
            
 
                 Defendants shall pay the mileage incurred to date of 
 
            2,209.6 miles which the undersigned finds is causally 
 
            related to claimant's October 8, 1990 injury.
 
            
 
                 Claimant has been totally permanently disabled as a 
 
            result of his October 8, 1990 work injury and that 
 
            claimant's benefits shall be paid at the weekly rate of 
 
            $554.13 beginning October 8, 1990.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant compensation for 
 
            permanent total disability at the rate of five hundred 
 
            fifty-four and 13/100 dollars ($554.13) per week for the 
 
            period of claimant's disability, commencing October 8, 1990. 
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Joseph A Happe
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            Ms Iris J Post
 
            Attorney at Law
 
            2222 Grand Ave
 
            P O Box 10434
 
            Des Moines IA 50306
 
            
 
            Mr Patrick M Reidy
 
            Attorney at Law
 
            4420 Madison Ave
 
            Kansas City MO 64111
 
            
 
 
         
 
 
 
 
 
 
 
                                            1804; 5-1100; 5-1108
 
                                            5-3000; 5-2500; 5-4000
 
                                            Filed June 26, 1992
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         ROBERT SCHNECK,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 981370
 
         TRANSPORT & DRAYAGE COMPANY   :
 
         OF MISSOURI,                  :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         UNITED STATES FIDELITY &      :
 
         GUARANTY COMPANY,             :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         The defendants were foreclosed from further evidence or activity 
 
         by a ruling made by another deputy prior to hearing.
 
         
 
         1804
 
         Forty-year-old claimant unable to work or be placed in any 
 
         competitive labor market and unless his condition improves, he is 
 
         not a candidate for vocational rehabilitation.  Claimant was a 
 
         truck driver and one of his injuries was a head injury.  Claimant 
 
         has double vision, etc., as well as other body as a whole 
 
         injuries.  Found claimant permanently totally disabled.
 
         
 
         5-1100; 5-1108
 
         Found claimant's injury arose out of and in the course of his 
 
         employment and this work injury caused claimant's disability.
 
         
 
         5-3000
 
         Rate was determined to be $554.13 per week.
 
         
 
         5-2500
 
         Claimant awarded medical and mileage.
 
         
 
         5-4000
 
         Penalty benefits not allowed as this was not an issue on hearing 
 
         assignment order.