BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FAYE L. GOTT,
 
                                              FILE NOS.  724356  &  
 
                                                         798231
 
              Claimant,
 
                                                   A T T 0 R N E Y
 
         VS.
 
                                                       F E E
 
         THOMAS B. READ,
 
                                                   D E C I S I O N
 
         
 
              Attorney,
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding brought by Faye L. Gott, claimant, 
 
         against her former attorney, Thomas B. Read, for review of 
 
         attorney fees charged in the case of Faye Gott, claimant, against 
 
         Wilson Foods Corporation, in which claimant sought workers' 
 
         compensation benefits for alleged injuries on January 27, 1981 
 
         and July 18, 1983.  The agency file indicates that on August 7, 
 
         1986, this agency approved a special case settlement between 
 
         claimant and Wilson Foods pursuant to Iowa Code section 85.35 
 
         wherein claimant was paid the sum of $100,000 and upon payment of 
 
         said sum, Wilson Foods was discharged from further liability 
 
         under the Iowa Workers' Compensation Laws.  In addition, Wilson 
 
         agreed to give claimant credit toward her pension fund for the 
 
         time period from August 19, 1983 through January 1, 1985 and to 
 
         waive its right of subrogation in a pending third party suit 
 
         brought by claimant as a result of an automobile accident in 
 
         July, 1983.  It was specifically found in the agency order of 
 
         August 7, 1986 that there was a dispute among the parties on the 
 
         question of liability and the compensability of the alleged work 
 
         injuries.
 
         
 
              On April 7, 1987, a hearing was held on claimant's petition 
 
         to review attorney fees and the matter was considered fully 
 
         submitted at the close of this hearing.  Oral testimony was 
 
         received during the hearing from claimant and the following 
 
         witnesses:  Thomas Read, Margaret Harvol and Robert Larson.  The 
 
         exhibits received into the evidence consist of Read's exhibits Al 
 
         and A2, the alleged fee agreement, and the following exhibits 
 
         offered by Gott: exhibit 1, a time statement; exhibit 2, the 
 
         deposition of Read; exhibit 3, the deposition of Gott; exhibit 4, 
 
         a letter report of David Naden, M.D.; exhibit 5, a docket 
 
         information sheet; and, exhibit 6, a personal check of Gott made 
 
         payable to Read dated May 4, 1982.  All of the evidence received 
 
         at the hearing was considered in arriving at this decision.
 
         
 
              Claimant does not dispute that Read is entitled to at least 
 
         a fee equivalent to 25 percent of the $100,000 settlement and 
 

 
         
 
         
 
         
 
         GOTT V. THOMAS B. READ
 
         Page   2
 
         
 
         
 
         $25,000 has been paid to Read prior to the hearing.  However, 
 
         Read contends that under his agreement with claimant, he is 
 
         entitled to 30 percent or an additional $5,000.  This is 
 
         disputed by claimant.  Consequently, $5,000 of the settlement 
 
         proceeds has been placed into an escrow account pending 
 
         resolution of this dispute.
 
         
 
              The only issue presented by the parties is whether the 30 
 
         percent attorney fee is fair and reasonable.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  On or about May 4, 1982, claimant, Faye Gott, 
 
         voluntarily entered into a written contingent fee agreement with 
 
         attorney, Thomas Read, wherein Read was to be paid for services 
 
         rendered to Gott in an amount equivalent to 30 percent of any 
 
         amounts collected in a workers' compensation claim for an injury 
 
         on or about January 27, 1981 if the claim was settled after 
 
         filing a petition with this agency but before commencement of a 
 
         hearing before this agency.
 
         
 
              The written fee agreement referred to above is fully 
 
         setforth in exhibit Al and A2.  The amount of the contingent fee 
 
         as setforth in this agreement was on an escalating scale ranging 
 
         from 25 percent to 42 percent, depending upon the extent of 
 
         proceedings required to collect upon the claim.  There was no 
 
         dispute among the parties as to what this agreement provides and 
 
         it was clear that the case was settled after filing a petition 
 
         for arbitration but before the commencement of any hearing on the 
 
         petition.
 
         
 
              Claimant contended at the hearing and in her deposition that 
 
         she signed no such agreement.  Exhibit Al and A2 is a two page 
 
         contract.  The exact fee percentages are contained on the first 
 
         page.  The second page contains, in addition to claimant's 
 
         signature, only two paragraphs indicating where the fee should be 
 
         paid and providing for a $25.00 advance by claimant for court 
 
         costs at the time of the execution of the agreement.  Claimant 
 
         does not deny that page 2 of this document contains her 
 
         signature.  However, she states that she has never seen page one 
 
         and that the page number "2" appearing on the second page, 
 
         exhibit A2, was not present when she signed the document.  
 
         Claimant stated that she agreed to pay Read only 25 percent if 
 
         the claim was settled out of court but that the percentage would 
 
         increase to one-third if it were necessary to "go to court.O  She 
 
         testified at the hearing that her understanding of going to court 
 
         was the filing of papers and that there would be a hearing and a 
 
         ruling or decision after such a hearing.  In her deposition, she 
 
         believed that going to court was appearing before a judge.  She 
 
         stated further that she was unaware before the settlement of this 
 
         agency's involvement in workers' compensation claim.
 
         
 
              Claimant also makes reference to the existence of a "blue 
 
         half page form" she signed in Read's office which contains her 
 
         understanding of the agreement.  Both Read and his secretary, 
 
         Harvol, denied at the hearing that any such type of form existed 
 

 
         
 
         
 
         
 
         GOTT V. THOMAS B. READ
 
         Page   3
 
         
 
         
 
         at Read's office.  Robert Larson, a qualified document examiner, 
 
         testified at the hearing that from his analysis of page 2 of the 
 
         fee agreement, exhibit A2, the number O2O appeared on the page at 
 
         the time of Gott's signature.  His testimony was very convincing 
 
         that it was impossible for Read to photocopy a number to another 
 
         photocopy after Gott had signed the document.
 
         
 
              The preponderance of the above evidence presented 
 
         establishes that claimant did, in fact, sign the two page 
 
         document Al and A2.  It is hoped and believed by the undersigned 
 
         that claimant's testimony in her deposition and at the hearing 
 
         which is contrary to the preponderance of the evidence in this 
 
         case arises from a lapse of memory and not an intentional effort 
 
         to deceive.  In any event, claimant's stated understanding of the 
 
         fees was not much different than what was embodied in the written 
 
         agreement.  At the hearing she described her understanding of 
 
         what constituted Ogoing to court.O  She stated that she believed 
 
         going to court was the filing of papers which would result in a 
 
         hearing before a judge.  This is very similar to contested case 
 
         proceedings before this agency in which a petition for 
 
         arbitration is filed, a hearing is held and a decision rendered 
 
         by a deputy commissioner who serves as an initial judge of the 
 
         compensation claim.
 
         
 
              The only faulty practice found in Read's written contract 
 
         procedures is the lack of his signature on the document.  
 
         Although his consent to the contract was implied by his actions 
 
         in representing claimant subsequent to the signing of the 
 
         agreement, the agreement does create obligations on his part to 
 
         represent Gott.  Read should execute such documents if he expects 
 
         his clients to do so.  However, this aspect is not important to 
 
         the issues of this case and Gott is not challenging Read's 
 
         performance as an attorney under the fee agreement.
 
         
 
              2.  An attorney fee of $30,000 or 30 percent of the $100,000 
 
         settlement pursuant to the written fee agreement is fair and 
 
         reasonable.
 
         
 
              It should be noted at the outset that claimant herself 
 
         requested a contingent fee agreement because she could not afford 
 
         to pay Read on a hourly or time basis.  The record demonstrated 
 
         that claimant would have had to pay Read from $50 to $85 per hour 
 
         on a time basis and claimant would be expected to pay Read 
 
         periodically, probably monthly, for services rendered absent the 
 
         contingency fee agreement.  Claimant was out of work or only 
 
         working part-time when she needed legal services to help her 
 
         pursue the workers' compensation claim.  Admittedly, Read is able 
 
         under the contingent fee agreement to make more money than he 
 
         would make on an hourly basis.  However, Read also assumed 
 
         significant risk that he would not be paid at all for services 
 
         should the claim be denied by this agency or that he would not be 
 
         paid adequately if the case dragged out through a long and 
 
         complicated hearing or extensive appeal on judicial review.
 
         
 
              It is clear that claimant's case was not easy to prosecute. 
 
          Wilson Foods never admitted to claimant's work injury and did 
 
         not do so even at the time of settlement.  The settlement 
 
         procedure utilized by the parties under Iowa Code section 85.35 
 
         allows employers to pay claimants for alleged claims without an 
 

 
         
 
         
 
         
 
         GOTT V. THOMAS B. READ
 
         Page   4
 
         
 
         
 
         admission of liability and with a full release of workers' 
 
         compensation liability.  Until the actual time of settlement, 
 
         claimant was not paid any workers' compensation benefits by 
 
         Wilson Foods.  The $100,000 settlement was obtained solely as a 
 
         result of Read's professional efforts on behalf of his client.
 
         
 
              Gott's claim for workers' compensation benefits was based 
 
         upon her back condition which allegedly was caused, at first, by 
 
         her bending, lifting and twisting while performing her job as a 
 
         packinghouse worker.  Read testified that a major problem with 
 
         the claim consisted of the fact that the medical records of 
 
         treatment for the back condition began in January of 1981 but the 
 
         first time there was any mention of a work injury in those 
 
         records was in November of 1981.  There was also some evidence 
 
         indicating back problems prior to 1981.  Furthermore, before she 
 
         began treatment with John Walker, M.D., a physician not 
 
         authorized by Wilson Foods, which ultimately led to extensive 
 
         back surgery, examinations by orthopedic surgeons revealed 
 
         nothing objectively wrong with claimant's spine and nothing more 
 
         than conservative treatment was recommended.  After explaining 
 
         these problems to Gott, Gott agreed with Read that there would be 
 
         an initial settlement demand in 1983 consisting of only $12,500.  
 
         This demand was initially rejected by Wilson Foods.  Furthermore, 
 
         Read did not rush to file a petition for arbitration in 
 
         claimant's workers' compensation claims in order to invoke the 30 
 
         percent contingency.  Read waited until the very last moment 
 
         before the expiration of the statute of limitations to file his 
 
         petitions in these cases and even asked for and received from 
 
         Wilson's attorney an extension of time to allow Wilson to respond 
 
         to the initial settlement demand.
 
         
 
              Another interesting and complicating feature of Gott's claim 
 
         developed when she was involved in an automobile accident in 
 
         February, 1983, while traveling to receive treatment from Dr. 
 
         Walker whose treatment, again, was not authorized by Wilson 
 
         Foods.  This accident aggravated claimant's back condition.  
 
         After extensive legal research, Read filed a second workers' 
 
         compensation claim contending that the auto accident injury was 
 
         work related.  As a part of the settlement of both workers' 
 
         compensation claim, Wilson Foods waived their rights to 
 
         subrogation against the third party involved in this auto 
 
         accident.  Read therefore was able to obtain an additional 
 
         $25,000 for Gott as a result of pursuing a personal injury claim 
 
         arising from this auto accident.  Read was paid a contingent fee 
 
         of one-third or approximately $6,667 for pursuing this personal 
 
         injury claim.  Read also pursued a social security disability 
 
         claim for claimant but this claim is unrelated to the issues in 
 
         this case.
 
         
 
              Read stated that he spent approximately 51 hours on 
 
         claimant's workers' compensation matters from August, 1983, the 
 
         time when he began to keep time records in contingent fee cases.  
 
         Read said that he estimates that at least 30 additional hours 
 
         were spent on the Gott case before August, 1983.  Claimant 
 
         contends that Read's time records show overlapping among the 
 
         various claims he was handling for Gott. obviously, some 
 
         overlapping is inevitable but on the whole, the estimate of time 
 
         spent on Gott's claim appears reasonable from the material 
 
         submitted into the evidence.
 

 
         
 
         
 
         
 
         GOTT V. THOMAS B. READ
 
         Page   5
 
         
 
         
 
         
 
              Read also demonstrated that the extent and quality of 
 
         services rendered to Gott was excellent.  The medical and legal 
 
         issues involved were complicated and required the special skill 
 
         and knowledge of,a specialist in the field of workers' 
 
         compensation.  Workers' compensation is a recognized specialty in 
 
         the practice of law, de facto if not de jure in most states.  
 
         Workers' compensation law unlike other entitlement programs is 
 
         primarily judge made rather than statutory.  Also, the procedures 
 
         before this agency are unlike court procedures or other 
 
         administrative procedures and a close familiarity with the 
 
         workings of this agency is an invaluable asset in the pursuit of 
 
         a workers' compensation claim.
 
         
 
              Read is a workers' compensation specialist.  He stated that 
 
         approximately 20 percent of his practice is devoted to such work. 
 
          His knowledge and experience with workers' compensation extends 
 
         over several years and began soon after he graduated from law 
 
         school in 1975 when he apparently was a law clerk for a former 
 
         industrial commissioner, Robert Landess.
 
         
 
              Therefore, given the amount of time spent, the extent and 
 
         quality of services rendered, the difficulty in handling the 
 
         issues, the importance of the issues, the responsibilities 
 
         assumed, and the professional standing of Gott's attorney, a fee 
 
         of $30,000 or 30 percent of the $100,000 obtained is fair and 
 
         reasonable.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Although claimant has petitioned this agency to resolve a 
 
         fee dispute with her attorney, the attorney had the burden of 
 
         establishing by a preponderance of the evidence that the fee he 
 
         wishes to charge is reasonable and should be approved.  This 
 
         burden arises from the ethical requirements of the legal 
 
         profession.  Attorneys are required under the Iowa Code of 
 
         Professional Responsibility for Lawyers (hereinafter referred to 
 
         as ICPRFL) to only charge reasonable fees.  See EC (ethical 
 
         consideration) 2-19 and DR (disciplinary rule) 2-106, ICPRFL.
 
         
 
              This agency's authority to review attorney fees arises by 
 
         statute.  Iowa Code section 86.39 states as follows:
 
         
 
              All fees or claims for legal, medical, hospital, and burial 
 
              services rendered under this chapter and chapters 85, 85A, 
 
              85B, and 87 are subject to the approval of the industrial 
 
              commissioner, and no lien for such service is enforceable 
 
              without the approval of the amount of the lien by the 
 
              industrial commissioner....
 
         
 
              Resolution of a fee dispute contains two factual inquiries. 
 
          The first consideration involves the nature of the fee agreement 
 
         and the second consideration involves the reasonableness of the 
 
         fee charged pursuant to that agreement.  In this case, we are 
 
         dealing with a contingent fee arrangement in which the fee is 
 
         based upon a percentage of the recovery.  Such fees have long 
 
         been accepted in proceedings before the courts and administrative 
 
         agencies.  See EC 2-22, ICPRFL.  However, despite ethical 
 
         acceptance of such fee agreements and regardless of the 
 

 
         
 
         
 
         
 
         GOTT V. THOMAS B. READ
 
         Page   6
 
         
 
         
 
         embodiment of the fee agreement in written form as suggested in 
 
         EC 2-21, such agreements are not binding upon a tribunal 
 
         reviewing the appropriateness of the resulting fee.  Kirkpatrick 
 
         v. Patterson, 172 N.W.2d 259, 261 (Iowa 1969).  In Kirkpatrick 
 
         the court stated that a one-third contingent fee contract may be 
 
         reasonable but any determination must be based upon the facts and 
 
         circumstances of a particular case.  The court listed the 
 
         appropriate factors which have a bearing on the reasonableness of 
 
         the fee.  These factors are substantially the same as those 
 
         contained in DR 2-106 of ICPRFL.  These factors are as follows:
 
         
 
              ... time spent, the nature and extent of the services, the 
 
              amount involved, the difficulty of handling and importance 
 
              of the issues, the responsibility assumed and the result 
 
              obtain as well as the professional standing and experience 
 
              of the attorney ... Kirkpatrick Id. at 261.
 
         
 
              Although the various evaluating factors are different for 
 
         each case, this agency has in the past approved one-third 
 
         contingent fee agreements when appropriate.  See Francis v. 
 
         Rider Truck Rental, IV Iowa Industrial Commissioner Report 129 
 
         (Appl. Decn. 1983).
 
         
 
              At the hearing, claimant's attorney argued that this agency 
 
         has recently held that contingent fees are improper in workers' 
 
         compensation cases and cited for authority Rickett v. Hawkeye 
 
         Building & Supply, case number 739306, filed July 24, 1986.
 
         Claimant's reliance on this decision is improper.  First, that 
 
         decision is not a final agency decision but only a deputy 
 
         decision which is currently on appeal.  Secondly, even if it were 
 
         binding on the undersigned, the Rickett decision only ruled that 
 
         it was improper to charge a contingent fee against amounts which 
 
         were not recovered as a result of the attorney's efforts.  The 
 
         decision essentially held that attorneys who wish to charge a 
 
         contingent fee against voluntary payment of benefits have the 
 
         burden to establish that the voluntary benefits were paid as a 
 
         result of their efforts.  Absent such a showing, such a fee is 
 
         unreasonable and any commutation of benefits to pay such a fee is 
 
         not in the best interest of claimant and should be denied.
 
         
 
              Given the findings of fact in this case, as a matter of law, 
 
         the fee and the attorney's lien under Chapter 602 of the Iowa 
 
         Code to the extent of the fee of $30,000 should be approved.
 
         
 
                                      ORDER
 
         
 
              The fee of thirty thousand and no/100 dollars ($30,000.00) 
 
         or thirty percent (30%) of the one hundred thousand and no/100 
 
         dollars ($100,000.00) special case settlement proceeds in this 
 
         matter is hereby approved and the amount of the attorney lien 
 
         asserted by Thomas Read against such proceeds shall be the full 
 
         amount of the fee, less the twenty-five thousand and no/100 
 
         dollars ($25,000.00) already paid.  Costs are assessed against 
 
         claimant.
 
         
 
              Signed and filed this 29th day of May, 1987.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         GOTT V. THOMAS B. READ
 
         Page   7
 
         
 
         
 
         
 
         
 
                                             LARRY P.WALSHIRE
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Richard H. Zimmerman
 
         Attorney at Law
 
         Paul-Helen Bldg.
 
         Iowa City, Iowa 52240
 
         
 
         Mr. William H. Roemerman
 
         Attorney at Law
 
         Suite 1710 I.E. Tower
 
         Cedar Rapids, Iowa 52401
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1000
 
                                                     Filed May 29, 1987
 
                                                     LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FAYE L. GOTT,
 
                                                FILE NOS. 724356 & 798231
 
              Claimant,
 
                                                   A T T 0 R N E Y
 
         VS.
 
                                                        F E E
 
         THOMAS B. READ,
 
                                                    D E C I S I 0 N
 
              Attorney,
 
         
 
         
 
         
 
         
 
         
 
         1000
 
         
 
              It was found that there was a written contingent fee 
 
         agreement authorizing an attorney to charge 30 percent of a 
 
         $100,000 settlement.  It was further found that the fee pursuant 
 
         to this agreement was reasonable under the guidelines setforth by 
 
         the Supreme Court for contingent fees in Kirkpatrick v. 
 
         Patterson, 172 N.W.2d 259 (Iowa 1969).
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CLIFFORD DODD,
 
                                              File No. 724378
 
            Claimant,
 
                                                 DECISION
 
        vs.
 
                                                CONCERNING
 
        OSCAR MAYER FOODS CORPORATION,
 
                                              SECTION 86.13
 
            Employer,
 
            Self-Insured,                       PENALTY
 
            Defendant.
 
        
 
                                                 F I L E D
 
        
 
                                                APR 27 1989
 
        
 
                                            INDUSTRIAL SERVICES
 
                                                
 
                                                
 
                                      INTRODUCTION
 
        
 
             This is a proceeding wherein Clifford Dodd seeks a penalty 
 
             under the fourth unnumbered paragraph of Code section 86.13 for 
 
             benefits which were awarded to him in an arbitration decision 
 
             filed November 5, 1984. Claimant's petition seeking the 
 
             penalties was filed February 19, 1987. The issues presented for 
 
             determination are whether the claim is barred by an applicable 
 
             statute of limitations; whether claimant's failure to raise the 
 
             issue at the time of the initial hearing which resulted in the 
 
             arbitration decision filed November 5, 1984 or at the time of 
 
             the hearing which resulted in the review-reopening decision 
 
             filed February 28, 1986 bars the claim; whether the statute, as 
 
             it now exists, applies to claims where the original injury 
 
             predated the effective date of the statute, namely July 1, 1982; 
 
             and, finally whether there was, on the merits, any unreasonable 
 
             denial of compensation.
 
        
 
             The case was heard in an abbreviated hearing that was 
 
             conducted on July 8, 1988 at Davenport, Iowa. The record upon 
 
             which this case is determined includes the exhibits offered at 
 
             that time, namely exhibits A through GG. Official notice was 
 
             taken of the contents of the agency file including all exhibits, 
 
             depositions and decisions from prior proceedings in this case.
 
        
 
                                 SUMMARY OF EVIDENCE
 
        
 
             The following is a summary of evidence presented in this 
 
             case. Of all the evidence received at the hearing, only that 
 
             considered most pertinent to this decision is discussed. 
 
             Conclusions about what the evidence showed are inevitable with 
 
             any summarization. The conclusions in the following summary 
 
             should be considered to be preliminary findings of fact. The 
 
             statement of facts contained in the employer's posthearing brief 
 
             is reasonably accurate for purposes of this decision and the 
 
             following summary of facts is based upon those statements with 
 
             modifications deemed appropriate by the undersigned.
 
        
 

 
        
 
 
 
 
 
             Clifford Dodd had been employed by Oscar Mayer since 1959. 
 
             During his tenure with the company, he had numerous complaints of 
 
             neck, shoulder and back pain. These complaints caused him to 
 
             miss work on occasion. In January, 1982, claimant was laid off 
 
             from Oscar Mayer and began collecting sick leave benefits. At 
 
             the time of the layoff, the company physician, John H. 
 
             Sunderbruch, M.D., indicated that claimant was disabled due to an 
 
             occupational injury affecting claimant's right shoulder. Dr. 
 
             Sunderbruch has generally indicated that the problem with 
 
             claimant's right shoulder was a work-related condition 
 
             (defendant's exhibit A -- 12-23-83 hearing). In particular, the 
 
             Oscar Mayer illness and accident disability reports which are in 
 
             the record as claimant's exhibits 2 and 4 from the December 23, 
 
             1983 hearing show the assessment of the case made at that time. 
 
             When later deposed, Dr. Sunderbruch again confirmed that the 
 
             shoulder condition was work-related (exhibit W, page 15 -- 
 
             07-08-88 hearing). On the other hand, Dr. Sunderbruch's 
 
             assessment of claimant's back complaints was that they were not 
 
             work-related (exhibits D, E, F and G -- 07-08-88 hearing). A 
 
             report from C. R. Fesenmeyer, M.D., dated March 14, 1983 
 
             indicates that claimant was initially seen for right shoulder 
 
             pain on January 28, 1982, but that when he was subsequently seen 
 
             on February 4, 1982, claimant reported the recent onset of right 
 
             hip and thigh pain without any discernible injury having occurred 
 
             (exhibit C -- 07-08-88 hearing). 0. W. Murphy, D.C., indicated 
 
             on two occasions that claimant's shoulder condition was not the 
 
             result of an occupational injury, but on other occasions, he 
 
             indicated that the source of the condition was unknown (exhibits 
 
             M, N, 0, P and Q -- 07-08-88 hearing). During the summer of 
 
             1982, claimant underwent treatment for his back condition.
 
        
 
            Claimant was laid off in early January, 1982. He was paid 
 
        sick leave benefits until the same ran out in approximately July, 
 
        1982 (exhibit GG, page 18 -- 07-08-88 hearing).
 
        
 
             Claimant filed a petition for arbitration and section 85.27 
 
             benefits on March 1, 1983. The hearing was conducted December 
 
             23, 1983 and the decision issued November 5, 1984. Claimant 
 
             filed a review-reopening petition on February 11, 1985. The case 
 
             was heard on November 7, 1985 and the decision issued February 
 
             28, 1986. Claimant's petition which commenced the now pending 
 
             litigation was filed February 19, 1987.
 
        
 
            The original arbitration decision awarded claimant 54 5/7 
 
        weeks of healing period compensation payable commencing in 
 
        January, 1982 and 175 weeks of permanent partial disability 
 
        compensation payable commencing January 27, 1983. Joseph Bauer, 
 
        the deputy industrial commissioner who issued the arbitration 
 
        decision, found claimant's injury to include both his back and 
 
        shoulder. Bauer found the healing period to have ended on 
 
        January 26, 1983. The record contained evidence that Dr. 
 
        Fesenmeyer had released claimant to return to work in August, 
 
        1982 at which time claimant showed good shoulder motion.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Some of the issues found in this case are interdependent 
 
             upon one another. Accordingly, the issue of determination of the 
 
             merits of the case will be first addressed and the affirmative 
 
             defenses will then be addressed subsequently.
 
        
 
            The penalty which can be assessed under the fourth 
 
        unnumbered paragraph of section 86.13 requires that a delay in 
 
        commencement of benefits without reasonable or probable cause or 
 
        excuse must have occurred. The Iowa Supreme Court has not yet 
 
        ruled upon how that standard is to be determined, but the 
 

 
        
 
 
 
 
 
        Wisconsin Court of Appeals has addressed the issue in the case 
 
        Kimberly-Clark CorporatiOn v. Labor and Industry Review 
 
        Commission, 405 N.W.2d 685 (Wisconsin 1987). The Wisconsin 
 
        statute authorizes a penalty to be assessed for failure to pay 
 
        compensation when the claim is not "fairly debatable." The 
 
        Wisconsin Court had permitted an employee to maintain a tort 
 
        action for bad faith denial of compensation benefits. Coleman v. 
 
        American Universal Insurance Co., 273 N.W.2d 220 (Wisconsin 
 
        1979).
 
        
 
            The Wisconsin Court, in a case dealing with bad faith on the 
 
        part of an insurer, stated that there must be some reasonable 
 
        basis, whether it concerns a question of fact or a question of 
 
        law, which would lead a reasonable insurer to conclude that it 
 
        need not make payment on the claim. Anderson v. Continental 
 
        Insurance Company, 271 N.W.2d 368 (Wisconsin 1978). The 
 
        Wisconsin Court ruled that the lack of a reasonable basis to deny 
 
        a claim may be inferred from the insurer's or employer's conduct 
 
        where there is a reckless disregard of a lack of a reasonable 
 
        basis for denial or a reckless indifference to the facts or to 
 
        proof submitted by the insured. The Iowa Supreme Court recently 
 
        recognized the first-party bad faith failure to settle tort. 
 
        Dolan v. Aid Insurance Co., 431 N.W.2d 790 (Iowa 1988). The 
 
        fourth unnumbered paragraph of section 86.13 and section 85.20 
 
        likely restrict Dolan to the tort field, but the Court adopted 
 
        the Wisconsin test for the bad faith tort. The Iowa Court 
 
        followed Anderson v. Continental Ins. Co., 85 Wis.2d 675, 691-92, 
 
        271 N.W.2d 368, 376 (1978). When a claim is "fairly debatable," 
 
        the insurer is entitled to debate it, whether the debate concerns 
 
        a matter of fact or law. To show a claim for bad faith, a 
 
        plaintiff must show the absence of a reasonable basis for denying 
 
        benefits of the policy and defendant's knowledge of reckless 
 
        disregard of the lack of a reasonable basis for denying the 
 
        claim. Id, at 691, 271 N.W.2d at 376-77. Dolan also agrees with 
 
        Anderson in considering whether the claim was properly 
 
        investigated and whether the results of the investigation were 
 
        subjected to a reasonable evaluation and review as part of the 
 
        fairly debatable determination.
 
        
 
             The test established by the Iowa and Wisconsin Courts when 
 
             dealing with the first party bad faith tort seems well reasoned 
 
             and is adopted as the standard to be used when considering claims 
 
             for additional compensation under the fourth unnumbered paragraph 
 
             of Iowa Code section 86.13.
 
        
 
             In this case, the evidence shows that it was clearly fairly 
 
             debatable as to whether or not claimant's back condition was 
 
             work-related. The same cannot, however, be said with regard to 
 
             the shoulder condition. A further issue existed, however, 
 
             regarding the shoulder and that is the duration of any temporary 
 
             total disability or healing period and also the existence of 
 
             permanent partial disability. Clearly, accordingly to Dr. 
 
             Sunderbruch, there was an entitlement to some disability, at 
 
             least temporary total disability, for the shoulder condition. 
 
             The evidence from the March, 1983 report from Dr. Fesenmeyer 
 
             indicates that the shoulder was sufficiently recovered to 
 
             authorize claimant to return to work in August, 1982. Despite 
 
             the fact that Deputy Bauer imposed a later date for the end of 
 
             the healing period, it must be remembered that his determination 
 
             included claimant's back, as well as the shoulder. Accordingly, 
 
             it is determined that defendant's failure to pay weekly 
 
             compensation during the period commencing January 8, 1982 and 
 
             running through August, 1982 was unreasonable. Although it was 
 
             not addressed by either party in their briefs filed following the 
 
             July 8, 1988 hearing, it was specifically noted that at the time 
 
             of the review-reopening hearing, the issue of whether the sick 
 

 
        
 
 
 
 
 
             pay applied as a credit toward satisfaction of the employer's 
 
             workers' compensation existed. The evidence does clearly show 
 
             that claimant was paid sick pay from January into July of 1982. 
 
             For purposes of this decision, agency expertise will be relied 
 
             upon pursuant to Code section 17A.14(5) to conclude that the sick 
 
             pay was paid under a typical sick pay plan which qualifies for 
 
             credit under Code section 85.38(2). Accordingly, those payments 
 
             of sick pay are equivalent to payment of compensation and the 
 
             periods when it was paid may not be used to compute the 50% 
 
             penalty which Code section 86.13 authorizes. The penalty may be 
 
             computed only upon the weekly compensation which should have been 
 
             paid commencing July 8, 1982 and running through August 31, 1982.
 
        
 
            The condition of claimant's shoulder was not so serious as 
 
        to hold the employer responsible for making payment of permanent 
 
        partial disability compensation. The primary disabling condition 
 
        which afflicted claimant was his low back.
 
        
 
            It is therefore determined that 7 6/7 weeks of compensation 
 
        were unreasonably denied.
 
        
 
            In making this determination, it is recognized that the 
 
        injury to claimant's right shoulder may well have been an 
 
        aggravation of a preexisting condition, but such is, 
 
        nevertheless, compensable. 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. United States 
 
        Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases 
 
        cited.
 
        
 
             The second issue to be discussed is whether claimant's 
 
             failure to raise the issue in one of his earlier proceedings bars 
 
             it from being raised at the present time. Over the years, the 
 
             agency rules dealing with this 86.13 penalty issue have changed 
 
             with regard to whether or not the claim would be bifurcated for 
 
             purposes of hearing. The agency has no particular rule which 
 
             specifies whether the penalty claim should be brought as part of 
 
             the underlying case or whether it should be brought 
 
             independently. Res judicata or issue preclusion applies in 
 
             administrative proceedings where the office is acting in a 
 
             quasi-judicial capacity. Board of Supervisors, Carroll County v. 
 
             Chicago & Northwestern Transp. Co., 260 N.W.2d 813 (Iowa 1977). 
 
             The general rule is that all claims, theories of recovery and 
 
             defenses must be raised and tried at the time of trial or they 
 
             are thereafter barred. 46 Am.Jur.2d Judgments, section 404.
 
        
 
            The primary issue in a penalty claim under section 86.13 is 
 
        whether or not compensation which was due was unreasonably 
 
        delayed or denied. Determination of that issue often involves an 
 
        examination of the claim practices used in determining whether or 
 
        not to pay the claim. It can involve an examination of 
 
        determining what level of investigation was conducted by the 
 
        employer. In short, the penalty claim often involves evidence 
 
        which would be inadmissible in the underlying proceeding. 
 
        Ashmead v. Harris, 336 N.W.2d 197 (Iowa 1983); I.R.C.P. 122 (c).
 
        
 
             It is therefore determined that claimant's failure to raise 
 
             the penalty claim in either of the prior proceedings is not 
 
             fatal. The nature of the penalty claim is sufficiently different 
 
             from that of the underlying claim for regular benefits that the 
 
             failure to assert it in a prior proceeding does not make it 
 
             susceptible to an issue or claim preclusion defense.
 
        
 
            The third topic to be discussed is whether or not the 
 
        penalty is applicable to cases where the injury occurred prior to 
 

 
        
 
 
 
 
 
        the effective date of the legislation. As with the preclusion 
 
        defense, it is important to note that the nature of the claim is 
 
        not the injury itself. It is the conduct of those responsible 
 
        for adjusting the claim which provides the cause of action. 
 
        Section 86.13 does not contain any directive as to whether it is 
 
        to be applied retroactively. Accordingly, the presumption is 
 
        that it is to be applied only prospectively. The date of injury 
 
        does not have any bearing. The critical dates are the dates that 
 
        the unreasonable denial of benefits occurred. In this case, the 
 
        unreasonable denial commenced in January of 1982 and ran through 
 
        August, 1982. While the statute quite possibly does not provide 
 
        a penalty for dates prior to July 1, 1982, the employer's action 
 
        of paying sick leave effectively prevents any penalty from being 
 
        assessed for the time prior to July 1, 1982. The only time for 
 
        which a penalty could be assessed in this case runs from July 8 
 
        through August 31, 1982, a time subsequent to the effective date 
 
        of the legislation which created the penalty. Accordingly, it is 
 
        determined that recovery of a penalty benefit is not barred by 
 
        the applicability of the penalty statute to an injury which 
 
        occurred prior to the effective date of the penalty statute.
 
        
 
             The only remaining issue is the statute of limitations 
 
             defense. As previously indicated, a penalty claim under Code 
 
             section 86.13 is based upon the conduct of those who adjust the 
 
             claim subsequent to the time that the injury occurs. The general 
 
             rule is that a cause of action does not accrue until the injured 
 
             party has a right to institute suit and events have developed to 
 
             a point where the injured party is entitled to a legal remedy. 
 
             Sandbulte v. Farm Bureau Mutual Insurance Co., 343 N.W.2d 457 
 
             (Iowa 1984); Stoller Fisheries, Inc. v. American Title Insurance 
 
             Co., 258 N.W.2d 336 (Iowa 1977). Accordingly, the statute of 
 
             limitations upon Code section 86.13 penalty benefits is 
 
             determined to run from the time that the unreasonable failure to 
 
             pay actually occurred. Since the cause of action is continuing 
 
             in nature, the period of limitations is determined to run from 
 
             each day of the occurrence. Anderson v. Yearous, 249 N.W.2d 855 
 
             (Iowa 1977).
 
        
 
            There is some question as to which, if any, statute of 
 
        limitations applies to the penalty claim. Statutes of 
 
        limitations are based upon laches. Ward v. Meredith, 186 1108, 
 
        173 N.W. 246 (1919). It would be quite unusual to have a civil 
 
        cause of action for which there is no statute of limitations. It 
 
        should be noted that the analysis of the previous issues in this 
 
        case indicates that the penalty claim is an original proceeding, 
 
        separate and distinct from the underlying injury claim. 
 
        Accordingly, under section 85.26, a two-year limitation would 
 
        apply. It could be asserted that Code section 614.1(2) is 
 
        applicable, but that statute also provides a two-year limitation. 
 
        The undersigned's research fails to provide any other source for 
 
        a statute of limitations. When choosing between the two possible 
 
        sources, Code section 85.26(1) is determined to be the applicable 
 
        section since it specifically states that it applies to "an 
 
        original proceeding for benefits under this chapter or 
 
        chapter...86..." Claimant's claim is therefore barred by the 
 
        provisions of Code section 85.26(1), the statute of limitations 
 
        which is applicable to a claim for penalty benefits under Code 
 
        section 86.13.
 
        
 
            Accordingly, the claim for penalty benefits under Code 
 
        section 86.13 was required to have been commenced no later than 
 
        August 31, 1984, a span of time two years subsequent to the 
 
        occurrence of the conduct upon which the claim is based. 
 
        Claimant's petition for penalties was filed February 17, 1987. 
 
        The claim is therefore barred.
 
        
 

 
        
 
 
 
 
 
                                 FINDINGS OF FACT
 
        
 
             1. Employer unreasonably failed to pay compensation to 
 
             Clifford Dodd for the period commencing January 8, 1982 and 
 
             running through August 31, 1982.
 
        
 
            2. Employer paid sick leave benefits to claimant for the 
 
        period commencing January 1, 1982 running through July 7, 1982.
 
        
 
            3. Employer did not pay weekly compensation to claimant 
 
        until subsequent to the arbitration decision filed November 5, 
 
        1984.
 
        
 
            4. Claimant commenced this action on February 17, 1987.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             1. This agency has jurisdiction of the subject matter of 
 
             this proceeding and its parties.
 
        
 
            2. A claim under section 86.13 is a separate, distinct, 
 
        independent cause of action separable from the underlying claim 
 
        for injury benefits.
 
        
 
            3. A cause of action under 86.13 accrues at the time when 
 
        the weekly benefits which were unreasonably denied became payable 
 
        under the provisions of Code sections 85.32 through 85.34.
 
        
 
            4. The failure to join the section 86.13 penalty claim with 
 
        the claim seeking benefits for injury and disability does not 
 
        provide a basis for a defense in the nature of preclusion.
 
        
 
            5. The penalty provisions of Code section 86.13 apply to 
 
        all unreasonably denied weekly compensation which became payable 
 
        subsequent to July 1, 1982.
 
        
 
            6. A claim under section 86.13, when brought independently, 
 
        is an original proceeding for which the statute of limitations is 
 
        two years as provided by Code section 85.26(1).
 
        
 
            7. The claim of Clifford Dodd against Oscar Mayer Foods 
 
        Corporation as made in this proceeding is barred by the 
 
        provisions of Code section 85.26(1).
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that claimant take nothing from this 
 
             proceeding.
 
        
 
             IT IS FURTHER ORDERED that the costs of this action are 
 
             assessed against claimant pursuant .to Division of Industrial 
 
             Services Rule 343-4.33.
 
        
 
            Signed and filed this 27th day of April, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Peter M. Soble
 
        Attorney at Law
 

 
        
 
 
 
 
 
        505 Plaza Office Building
 
        Rock Island, Illinois 61201
 
        
 
        Mr. Lawrence J. Lammers
 
        Attorney at Law
 
        701 Kahl Building
 
        Davenport, Iowa 52801
 
        
 
        Mr. Richard M. McMahon
 
        Ms. Vicki L. Seeck
 
        Mr. Craig A. Levien
 
        Attorneys at Law
 
        600 Union Arcade Building
 
        111 East Third Street
 
        Davenport, Iowa 52801
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CLIFFORD DODD,
 
         
 
              Claimant,                              File No.  724378
 
         
 
         VS.                                            A P P E A L
 
         
 
         OSCAR MAYER FOODS CORPORATION,               D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision in which 
 
         he was denied further compensation because he failed to establish 
 
         a change in condition.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; claimant's exhibits 1 through 10; and 
 
         defendant's exhibits 1, 1A, 2, 3, 3A, and 4 through 7.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                 1.  Whether there is a causal connection between the 
 
              flare up and exacerbation of Claimant's condition from 
 
              November 29, 1984, to June 3, 1985, and the original 
 
              injuries for which claimant received an award.
 
         
 
                 2.  Whether the claimant is entitled to healing period 
 
              benefits for the period of November 29, 1984 to June 3, 
 
              1985.
 
         
 
                 3.  Whether the claimant is entitled to additional 
 
              permanent partial disability benefits beginning June 3, 
 
              1985.
 
         
 
            4.  Whether the claimant is entitled to medical expenses 
 
         incurred for treatment of the flare up and exacerbation between 
 
         November 29, 1984, and June 3, 1985.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be reiterated 
 
         herein.
 
              Briefly stated, claimant sustained a work injury to his 
 

 
         
 
         
 
         
 
         DODD V. OSCAR MAYER FOODS CORPORATION
 
         Page   2
 
         
 
         
 
         right shoulder and low back in July 1981 for which he was awarded 
 
         permanent partial disability benefits based on 35 percent 
 
         industrial disability as well as 54 5/7 weeks of healing period 
 
         benefits.  Claimant now alleges that a "flare up" of his low back 
 
         and right shoulder conditions caused him to be temporarily 
 
         totally disabled from November 29, 1984 to June 3, 1985.  
 
         However, claimant states that he was not working prior to 
 
         November 29, 1984 nor has he worked since that time.  Claimant 
 
         states that he feels about the same as he did before the 
 
         flare-up.  Claimant further alleges that his functional 
 
         impairment is slightly greater than at the time of the prior 
 
         award.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis set out in the review-reopening decision 
 
         accurately analyzes the issues presented; therefore, it is 
 
         adopted herein.
 
         
 
              The findings of fact, conclusions of law and order are 
 
         adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The claimant received an injury arising out of and in 
 
         the course of employment in July of 1981.
 
         
 
              2.  Claimant was awarded healing period benefits and 
 
         permanent partial disability benefits by an arbitration decision 
 
         dated November 5, 1984.
 
         
 
              3.  The prior award was based on right shoulder pain, lower 
 
         back pain and right leg pain.
 
         
 
              4.  The healing period award was for 54 5/7 weeks from 
 
         January 9, 1982 to January 26, 1983.
 
         
 
              5.  The permanent partial disability award was for 175 weeks 
 
         based upon 35 percent disability of the body as a whole.
 
         
 
              6.  Claimant had a flare-up of his right shoulder pain and 
 
         low back pain from November 29, 1984 to June 3, 1985.
 
         
 
              7.  Claimant's complaints about the right shoulder pain and 
 
         low back pain during the flare-up were no different than his
 
         
 
         complaints about the right shoulder pain and lower back pain 
 
         prior to the award.
 
         
 
              8.  Claimant was not working or earning money at the time of 
 
         the original award and was not working or earning money at the 
 
         time of this hearing.
 
         
 
              9.  Claimant's flare-up was caused by natural conditions and 
 

 
         
 
         
 
         
 
         DODD V. OSCAR MAYER FOODS CORPORATION
 
         Page   3
 
         
 
         
 
         the cold weather.
 
         
 
             10.  No new trauma occurred to cause the flare-up.
 
         
 
             11.  The employer did not authorize the medical treatment 
 
         with  Dr. Johnson, Dr. Fischer or the Davenport Medical Clinic.
 
         
 
             12.  No sick leave benefits were paid during the period of 
 
         the flare-up.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant failed to show by a preponderance of the evidence 
 
         that a change of condition occurred that would warrant an 
 
         increase in healing period benefits or permanent partial 
 
         disability benefits.
 
         
 
              Claimant's flare-up was not proximately caused by the 
 
         previous injury.
 
         
 
              Claimant's medical treatment for the flare-up was not 
 
         authorized by the employer.
 
         
 
              There is no offset for sick leave benefits because no sick 
 
         leave was paid during the period of the flare-up and no benefits 
 
         were awarded by this decision.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That no additional payments are due to the employee from the 
 
         employer for either healing period benefits or temporary total 
 
         disability benefits or medical expenses.
 
         
 
              That the costs of this action are assessed against the 
 
         claimant.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 30th day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                ROBERT C. LANDESS
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 

 
         
 
         
 
         
 
         DODD V. OSCAR MAYER FOODS CORPORATION
 
         Page   4
 
         
 
         
 
         1705 2nd Avenue
 
         Rock Island, Illinois 61201
 
         
 
         Mr. Richard M. McMahon
 
         Mr. Craig A. Levien
 
         Attorneys at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801-1550
 
         
 
         Mr. Lawrence J. Lammers
 
         Attorney at Law
 
         701 Kahl Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.10
 
                                                    Filed April 30, 1987
 
                                                    ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CLIFFORD DODD,
 
         
 
              Claimant,                               File No. 724378
 
         
 
         VS.                                            A P P E A L
 
         
 
         OSCAR MAYER FOODS CORPORATION,               D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.10
 
         
 
              Claimant sought to reopen an award of 35 percent industrial 
 
         disability for a right shoulder and low back injury alleging that 
 
         a flare-up of those conditions caused him to be temporarily 
 
         totally disabled and caused him greater functional impairment.  
 
         The flare-up was found to be related to natural conditions and 
 
         not his prior work injury.
 
 
 
 
        
 
 
 
 
 
        
 
        
 
                                            2101, 2400, 2402, 2901
 
                                            2906, 4000.2
 
                                            Filed April 27, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CLIFFORD DODD,
 
                                                          File No. 
 
        724378
 
            Claimant,
 
                                                          DECISION
 
        vs.
 
                                                          CONCERNING
 
        OSCAR MAYER FOODS CORPORATION,
 
                                                          SECTION 86.13
 
            Employer,
 
            Self-Insured,                                PENALTY
 
            Defendant.
 
        
 
        
 
        2101, 4000.2
 
        
 
             The "Fairly Debatable" test from Dolan applied to the tort 
 
             of a first party bad faith was adopted as the standard for 86.13.
 
        
 
        2400, 2402
 
        
 
             Statute of limitations held to be two years in accordance 
 
             with Iowa Code section 85.26(1).
 
        
 
        2901, 2906
 
        
 
             Section 86.13 penalty was held to be a separate independent 
 
             cause of action based upon claim handling practices, rather than 
 
             the injury itself. As such, failure to raise the penalty with 
 
             the underlying injury claim does not make it susceptible to a 
 
             preclusion defense.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLIFFORD DODD,                               File No. 724378
 
         
 
              Claimant,                                 A P P E A L
 
         
 
         vs.                                            R U L I N G
 
         
 
         OSCAR MAYER FOODS CORPORATION,
 
                                                         F I L E D
 
              Employer,
 
                                                        JAN 20 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
              Division of Industrial Services Rule 343-4.27 states in 
 
              part:
 
         
 
                   No appeal shall be separately taken under this or 4.25 
 
              (17A, 86) from an interlocutory decision, order or ruling of 
 
              a deputy industrial commissioner.  A decision, order or 
 
              ruling is interlocutory if it does not dispose of the 
 
              contested case, unless the sole issue remaining for 
 
              determination is claimant's entitlement to additional 
 
              compensation for unreasonable denial or delay of payment 
 
              pursuant to Iowa Code section 86.13.
 
         
 
              The ruling filed December 4, 1987, which is the subject 
 
         matter of this appeal, is not dispositive of the contested case 
 
         and therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed December 22, 1987 is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 20th day of January, 1988.
 
         
 
         
 
         
 
          
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Peter M. Soble
 
         Attorney at Law
 
         1705 2nd Avenue
 
         Rock Island, Illinois  61201
 
         
 
         Mr. Lawrence J. Lammers
 
                                                
 
                                                         
 
         Attorney at Law
 
         701 Kahl Bldg.
 
         Davenport, Iowa  52801
 
         
 
         Mr. Richard M. McMahon
 
         Ms. Vicki L. Seeck
 
         Mr. Craig A. Levien
 
         Attorneys at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa  52801
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE C. CHAMBERS,
 
         
 
              Claimant,                        File Nos. 725096
 
         vs.                                               810141
 
         
 
         CONSOLIDATED FREIGHTWAYS,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
                                                    F I L E D
 
         NORTHWESTERN NATIONAL INSURANCE
 
         COMPANY,                                  OCT 19 1989
 
         
 
              Insurance Carrier,               INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Wayne C. Chambers, against Consolidated Freightways, employer, 
 
         and Northwestern National Insurance Company, insurance carrier, 
 
         to recover benefits as a result of alleged injuries sustained on 
 
         February 2, 1983 and July 3, 1985.  This matter came on for 
 
         hearing before the deputy industrial commissioner in Des Moines, 
 
         Iowa, on July 31, 1989.  The record consists of the testimony of 
 
         claimant and James L Wolf; claimant's exhibits 1 through 3; 
 
         and.defendants' exhibits 1 and 2.
 
         
 
                                      ISSUES
 
         
 
              Regarding both the February 2, 1983 and July 3, 1985 
 
         injuries, the issues are:
 
              
 
              1.  Whether claimant's disability is causally connected to 
 
         his injury;
 
         
 
              2.  The nature and extent of claimant's disability, except 
 
         as to the February 2, 1983 injury, defendants stipulated that 
 
         claimant was temporary totally disabled from February 3, 1983 
 
         through February 13, 1983; and
 
         
 
              3.  Claimant's entitlement to medical benefits beyond those 
 
         paid in 1983.
 
         
 
              The additional particular issue as to the February 3, 1983 
 
         injury is whether claimant filed his original proceeding for 
 
         benefits in a timely manner as provided under Iowa Code section 
 
         85.26.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              An additional issue as to the July 3, 1985 injury is whether 
 
         claimant's injury arose out of and in the course of his 
 
         employment.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a high school graduate and has 
 
         obtained no additional formal education.  Claimant said he drove 
 
         a truck and performed various other manual labor jobs before he 
 
         began working for defendant employer on June 5, 1967.
 
         
 
              Claimant described his work for defendant employer over the 
 
         22 years he worked for them as basically driving a truck, loading 
 
         and unloading the truck, sometimes with the help of certain 
 
         equipment and other personnel.  Claimant indicated at times he 
 
         used a two-wheeler with a fork and manual hydraulic lift.  
 
         Claimant indicated he used his shoulders and arms a lot while 
 
         using a dolly and when stacking boxes above shoulder level, 
 
         unloading stock onto pallets, operating the truck cargo door, and 
 
         climbing into the truck cab. Claimant stated that 10 percent of 
 
         the freight he hauls he does not have to unload and 90 percent he 
 
         must unload.  Claimant contends he has unloaded 5,000 pounds in 
 
         an eight hour day over the last seven years.  Claimant stated 
 
         that the individual objects he lifted to load or unload weighed 
 
         up to 100 pounds each.
 
         
 
              Claimant indicated he injured his right shoulder on February 
 
         2, 1983 while unhooking a fifth wheel trailer.  Claimant 
 
         indicated that a pin must be pulled to unlock the wheel and 
 
         requires a lot of effort.  Claimant said he was off work for 
 
         approximately ten days.  Claimant testified that he continued to 
 
         work up to the time he had right shoulder surgery in July 1985, 
 
         and continued to work after surgery to the present time.  
 
         Claimant said he is the number one driver in seniority today with 
 
         defendant employer.  Claimant said he was off work beginning July 
 
         3, 1985 through November 24, 1985 due to a right shoulder 
 
         operation.  He indicated he had no left shoulder problems at that 
 
         time.  Claimant explained that he did not exercise his right arm 
 
         during that period of time, but used his left arm to do 
 
         everything.  Claimant indicated he is right-handed.  Claimant 
 
         acknowledged that on July 6, 1983, he had polyarthritis involving 
 
         both shoulders, elbow, wrists and metacarpophalangeal joints.
 
         
 
              Claimant said he sold his thirty-three acre acreage in 1983. 
 
         Claimant stated he had raised twenty sows and six feeder calves 
 
         on the acreage and had performed various farming duties between 
 
         1977 and 1983.  Claimant said his farming and livestock 
 
         activities involved feeding, bedding, and cleaning the stalls; 
 
         using a shovel; carrying two buckets of water to the hogs; 
 
         carrying feed bags; mowing the weeds around the buildings; 
 
         hitching the mower blades; driving a tractor; taking bales of hay 
 
         from the haymow and spreading them over the barn floor; and 
 
         maintaining the fences. Claimant contends he did not sell his 
 
         acreage in 1983 because of his arthritis.  Claimant indicated he 
 
         was losing money, did not want the farming work, and could not do 
 
         justice to his farming. Claimant admitted that if his arthritis 
 
         became worse, he could not do both.  Claimant admitted he never 
 
         told Dr. Neff of his farm activities and that he was still 
 
         involved with them in 1983. Claimant discussed his present 
 
         hobbies of making miniatures and doll houses.  Claimant said he 
 
         has exhibited the doll houses at the Iowa State Fair for the last 
 
         three years and placed first and third in 1978.  Claimant stated 
 
         some of his houses sell for $500.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant said Scott B. Neff, D.O., who performed surgery on 
 
         claimant's right and left shoulders, suggested claimant quit 
 
         driving.  Claimant indicated that he intends to retire at age 57 
 
         because of the condition of his shoulders.  Claimant will be 57 
 
         on September 23, 1990.  Claimant will have 25 years with 
 
         defendant employer at age 57 and the pension will be $1,000 per 
 
         month. Claimant insisted he must work until age 57 if he is to 
 
         get a decent pension.  Claimant emphasized that if he worked to 
 
         age 62 or 65, his pension would be $1,750 or $2,000 per month, 
 
         respectively.  Claimant indicated he has no trouble handling his 
 
         work currently, but the work effects his symptoms.  Claimant 
 
         indicated that if the work is heavy, it hurts his shoulders. 
 
         Claimant acknowledged he had a 1979 right shoulder injury for 
 
         which he missed no work and which was healed in three weeks. 
 
         Claimant admitted he still had right shoulder problems and sought 
 
         medical treatment on January 24, 1981.  Claimant said he went to 
 
         a doctor for a shoulder injury on February 3, 1983 and was 
 
         diagnosed with rheumatoid arthritis.  Claimant said he last 
 
         painted his garage in 1987 using an eight foot extension ladder.
 
         
 
              Claimant testified his income from defendant employer for 
 
         the first half of 1987 was $17,741.  Claimant contends he has 
 
         passed up opportunities to make overtime due to his work 
 
         injuries. Claimant acknowledged he has applied for no other jobs 
 
         since 1983. Claimant's last DOT physical in 1988 resulted in no 
 
         restrictions. Claimant emphasized he has never had restrictions.
 
         
 
              James L. Wolf, terminal manager for defendant employer, 
 
         testified he has worked for defendant employer for sixteen years 
 
         and is custodian of claimant's personnel records.  Wolf 
 
         emphasized claimant's last physical was in September 1988 and 
 
         there were no restrictions.  He indicated claimant never 
 
         complained of any shoulder difficulties before today.  Wolf 
 
         revealed claimant filed more union grievances than any other 
 
         worker.  The grievances would involve working rules or management 
 
         performing subordinates' work. Wolf said claimant could bid a 
 
         route due to his seniority. Claimant has never requested a 
 
         change.  Wolf stated claimant is performing his full job.  Wolf 
 
         acknowledged claimant is an honest and proud man and a valued 
 
         employee.
 
              
 
              Scott B. Neff, D.O., an orthopedic surgeon, testified 
 
         through a deposition on May 19, 1986 that he first saw claimant 
 
         on June 24, 1985, when claimant was referred to him by claimant's 
 
         rheumatologist for a trigger finger problem.  Dr. Neff said 
 
         claimant was also having trouble with his right shoulder and was 
 
         taking Feldene, Gold and Predesone for his rheumatoid arthritis. 
 
         Dr. Neff said claimant told him he has been suffering from this 
 
         condition for a number of years.  Dr. Neff stated:  "Rheumatoid 
 
         arthritis is unrelated to any type of occupational exposure 
 
         whatsoever."  (Scott B. Neff, D.O., 5-19-86 Deposition, Pages 
 
         4-5) The doctor describes the effects of rheumatoid arthritis, 
 
         the joints it affects, and its migratory tendencies.  Dr. Neff 
 
         was asked and answered:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Q.  Does Mr. Chambers' difficulty appear to be migratory?
 
              
 
              A.  Mr. Chambers seems to have at this point involvement in 
 
              both of his hands, both of his elbows and both of his 
 
              shoulders.  He also recently has complaints about soreness 
 
              in his jaw and in his neck.  He has puffiness in his knees, 
 
              but has not complained of severe knee pain, and I don't 
 
              recall if he has complained of any foot pain.
 
              
 
              ....
 
              
 
              Q.  In Mr. Chambers' case, is this a condition likely to 
 
              eventually disable him from any kind of physical labor 
 
              occupation?
 
              
 
              A.  Yes.
 
              
 
              Q.  And was this true regardless of his truck driving work?
 
              
 
              A.  Yes.
 
              
 
              Q.  Given the beneficial aspects of motion, is this a 
 
              condition that is accelerated or retarded by physical work, 
 
              or can you tell in a particular patient?
 
              
 
              A.  The problem with that gets into terminology, because the 
 
              underlying rheumatoid arthritis itself, the disease process, 
 
              is unaffected by the motion of a joint.  In other words, it 
 
              is going to do what it decides to do regardless.  The more a 
 
              joint is moved, the more the lining of the joint is stressed 
 
              or stretched or pulled or tugged on, and that probably 
 
              causes more symptoms.
 
                   
 
                 A rheumatoid who is having an acute rheumatoid arthritic 
 
              attack is put at rest or immobilization, and it makes them 
 
              feel better, although it worsens the condition because it 
 
              leads to joint stiffness, muscle loss, and so forth.
 
              
 
                So motion to the joint is not done for the condition 
 
              itself, but is done for the problems associated with it; 
 
              i.e., muscle loss, ligament stiffness and loss of motion, 
 
              although the motion doesn't have anything to do with the 
 
              disease process itself.
 
              
 
         (Neff 5-19-86 Dep., pp. 7-8, 12-13)
 
         
 
              Dr. Neff opined a 10 percent impairment to claimant's right 
 
         shoulder.  When asked to apportion this 10 percent between work 
 
         and nonwork causes, he answered:
 
         
 
              I think in light of what we've discussed and what we know 
 
              about this man's occupation, it is fair to say that five 
 
              percent of his current impairment rating is due to the 
 
              unfortunate affliction he has with rheumatoid arthritis, 
 
              with previous fence posts, with previous mowing his lawn, 
 
              with waxing his car, and all the normal activity, and five 
 
              percent would be related to repetitive overhead activity of 
 
              the shoulder, driving the truck, picking up boxes in the 
 
              work place.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Neff 5-19-86 Dep., p. 30)
 
         
 
              Dr. Neff indicated he thought claimant's job was a 
 
         significant factor in bringing him to surgery.  Dr. Neff 
 
         indicated this 10 percent right shoulder impairment under the AMA 
 
         Guides results in a 4 percent permanent partial impairment to the 
 
         body as a whole, which would be divided by one-half due to the 
 
         work and one-half to nonwork activities.  Dr. Neff indicated that 
 
         claimant had no present impairment in his shoulder even though he 
 
         was having complaints.
 
         
 
              When asked:
 
         
 
              Q.  What kind of work do you feel would be best for him in 
 
              the future?
 
              
 
              A.  I think whatever kind of work that he could do that 
 
              involved use of his shoulders, for example, at and below 
 
              shoulder height, and with reference to the remainder of his 
 
              body being affected also--back, knees, hips, so forth--where 
 
              he does not do repetitive heavy lifting of not more than 15 
 
              or 20 pounds, where he is not subjected to repetitive 
 
              squatting, repetitive ladders, that sort of thing.
 
         
 
              Q.  Would he be better off maintaining a range of motion in 
 
              his joints?
 
         
 
              A.  Yes.
 
              
 
              ....
 
              
 
              Q.  From the time that Mr. Chambers was off work July 3rd, 
 
              1985, through November 24th, 1985, was he in a recuperative 
 
              period?
 
              
 
              A.  Yes.
 
              
 
              Q.  Did you find him well motivated to return to work?
 
              
 
              A.  Yes, extremely so.
 
              
 
              Q.  In your--were you surprised that he returned to work?
 
              
 
              A.  I was surprised at the eagerness and the desire on the 
 
              part of this patient to return to work and, in fact, I think 
 
              I made mention in the records I certainly mentioned to Mr. 
 
              Chambers that the reason he was off work for that period of 
 
              time was that was my recommendation, and he had wanted to 
 
              return to work earlier, but I didn't feel it was safe.
 
              
 
              Q.  Doctor, if I could just try to clarify in my own mind a 
 
              few things.  The rheumatoid arthritis was in no way caused 
 
              by the work activity, correct?
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              A.  Correct.
 
         
 
              Q.  The work activity substantially contributed to Mr. 
 
              Chambers' need for surgery on his right shoulder and on his 
 
              trigger finger operations because it added to the 
 
              impingement syndrome that we've discussed?
 
              
 
              A.  That's correct.
 
              
 
              ....
 
              
 
              Q.  Now, Doctor you indicated that Mr. Chambers would likely 
 
              have needed surgery on that right shoulder irrespective of 
 
              whether or not he was working, but that the work, in 
 
              essence, if I understand it, wore out his shoulder quicker.  
 
              Is that a fair analogy?
 
              
 
              A.  Yes.
 
              
 
         (Neff 5-19-86 Dep., pp. 35-39)
 
         
 
              Dr. Neff later testified through deposition on July 26, 
 
         1989, in which he referred to his conversation with Theodore W. 
 
         Rooney, D.O., board certified rheumatologist, concerning 
 
         claimant.  Dr. Neff indicated the ratio of the disease itself as 
 
         it is made worse by the work environment should be greater and 
 
         less should be attributed to the disease itself as a pure disease 
 
         process.  Dr. Neff opined:  "80 percent of his current impairment 
 
         would be related to the aggravation of the underlying disease 
 
         caused by work, and 20 percent would be related strictly to the 
 
         disease itself."  (Neff 7-26-89 Dep., p. 45) Dr. Neff also opined 
 
         the same 80-20 ratio as to the necessity for the medical care and 
 
         the surgery.  Dr. Neff was asked:
 
         
 
              Q.  Have you recommended that Mr. Chambers retire or resign 
 
              from his employment?
 
              
 
              A.  Either that or reduce it to the point where he would be 
 
              at minimal activity within the confines of his employment.  
 
              I have certainly had several conversations with him about 
 
              the wear-and-tear changes and the worsening that I thought 
 
              was going to occur because of his employment.
 
              
 
              Q.  Have you discussed with him the specific duties of his 
 
              job that he should attempt to avoid or minimize?
 
              
 
              A.  Yes, I have.
 
              
 
              Q.  What duties have you told him to avoid or minimize?
 
              
 
              A.  I told him that I thought it would be a good idea for 
 
              him to try to minimize the loading or unloading activities, 
 
              the lifting and pushing and pulling, for example, and that 
 
              he try to maximize the relatively sedentary activities of 
 
              his job, such as driving a properly equipped and properly 
 
              maintained tractor.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                I specifically recommended to him that he try and avoid 
 
              the repetitive lifting and pushing and pulling and 
 
              two-wheeler activities and that type of thing associated 
 
              with what I surmised to be the typical activities of a 
 
              freight handler.
 
              
 
              Q.  What about use of the overhead door, has that been a 
 
              particular problem to him?  The overhead door on the trailer 
 
              I mean.
 
              
 
              A.  Yes, it has, because of the stresses on the rotator cuff 
 
              with repetitive activity above shoulder height.
 
              
 
         (Neff 7-26-89 dep., pp. 30-31)
 
         
 
                   Dr. Neff testified that similar surgery was performed on 
 
         claimant's right and left shoulder.  He described these surgeries 
 
         as:
 
         
 
              The purpose of those surgeries was to try to decrease the 
 
              friction on the rotator cuff, so part of the corner of the 
 
              shoulder bone or the acromion is removed, and a heavy 
 
              ligament which forms a gate for a slot through which the 
 
              rotator cuff has to pass is resected or removed.
 
              
 
         ((Neff 7-26-89 Dep., pp. 54-55)
 
         
 
              Dr. Neff's June 24, 1985 notes reflect:
 
              
 
                He also is having subacromial bursitis and synovitis in 
 
              his right shoulder, which is resulting in an impingement 
 
              syndrome.  He has crepitus, clicking with forward flexion, 
 
              and has pain with lifting above shoulder level.  With the 
 
              arm in the elevated position, passive internal and external 
 
              rotation reproduces his pain and makes him wince.
 
              
 
                This is a subacromial impingement syndrome as described 
 
              by Dr. Neer, and, especially in the rheumatoid, can result 
 
              in rotator cuff thinning, and eventual rotator cuff rupture.
 
              
 
                 We are going to recommend an arthrogram, while he is off 
 
              work from his finger surgery, and see what this shows.  If 
 
              it shows significant subacromial synovitis, or 
 
              intra-articular synovitis, then we should consider 
 
              subacromial decompression as a [sic] preventative measure, 
 
              much like synovectomy, to prevent the rotator cuff from 
 
              rupturing.  This would be especially important in a patient 
 
              who works as a warehouseman, and freight handler.
 
              
 
                His heavy work with repetitive overhead lifting, has 
 
              certainly contributed to the development of this situation.
 
              
 
                 ....
 
              
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              7/16/85  Surgery - Excision of bursa - 23110, Acrominectomy
 
                       - 23130, Coracoacromial ligament release
 
                       - 23415, right shoulder and trigger finger
 
                       release, 4th and 5th fingers, right hand
 
                       - 26055
 
         
 
         (Defendants' Exhibit 1, Page 34)
 
         
 
              Dr. Neff wrote on December 2, 1985:
 
            
 
                Mr. Chambers has rheumatoid arthritis, and that disease 
 
              itself, of course, has nothing whatsoever to do with work 
 
              injury.  It is an auto-immune disease that develops in 
 
              multiple parts of the body.  It can affect the hands, 
 
              elbows, shoulders, back, neck, and the large weight bearing 
 
              joints.
 
            
 
              Mr. Chambers has diffuse rheumatoid arthritis, and this is a 
 
              disease which sometimes becomes severe and then goes into 
 
              total remission.
 
              
 
              Based on the review of the records that you sent me and this 
 
              patient's history is told to me, it is my opinion that the 
 
              injury that occurred to his shoulder was a substantial 
 
              contributing factor to the development of subacromial 
 
              bursitis.  This type of situation can certainly be seen in 
 
              the patients who do not have rheumatoid arthritis, although 
 
              it might be somewhat more easily developed or "brought on" 
 
              in the patient with already existing inflammatory disease.
 
            
 
                This initial injury, and the subsequent surgical 
 
              treatment which was required for it, is responsible for his 
 
              resultant impairment in his right shoulder.  I would 
 
              certainly not argue with placing one or two percent of that 
 
              impairment on the rheumatoid arthritis itself, and the 
 
              remainder on the results of that injury.
 
                
 
                ...It is my opinion that repetitive wrenching or twisting 
 
              side to side of a nonpower steering vehicle, repetitive 
 
              overhead lifting and pulling and pushing such as loading and 
 
              unloading, tightening cargo ropes, and the overhead latches 
 
              on the heavy rear doors, certainly contribute to the 
 
              development of this situation.  As you related, Mr. Chambers 
 
              had an injury to his right shoulder in 1979, which sounds 
 
              like a muscle pull type injury.  As you stated in your 
 
              letter, and this patient has also told me, he responded well 
 
              following conservative treatment for that problem, and was 
 
              able to regain full use of his right shoulder without 
 
              problems, until his more recent injury.
 
            
 
                This patient has an excellent work history, according to 
 
              what he has told me and according to his work records 
 
              provided by you, and he is constantly asking me when he can 
 
              try and return to work.  I have told him about the 
 
              seriousness of his problem and his surgery, and have tried 
 
              to delay him from returning to that type of activity.  This 
 
              is certainly unusual behavior, and one that makes me very 
 
              certain that this patient has an extremely good work ethic.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Def. Ex. 1, p. 28-29)
 
         
 
              On March 16, 1987, Dr. Neff wrote:
 
              
 
                In my letters to you, I was referring to the work related 
 
              injury to the shoulder which occurred on February 2, 1983. 
 
              This apparently resulted when he was unhooking a tractor 
 
              from a trailer, and a jerk, pull, or torsion injury occurred 
 
              to the shoulder.  This contributed to worsening of the 
 
              subacromial bursitis and the consequent problem.
 
              
 
                 In my opinion, this patient had an underlying rheumatoid 
 
              arthritis, which was aggravated and worsened by the work 
 
              injury of February 2, 1983.
 
              
 
                The surgical treatment that resulted on the right 
 
              shoulder, was the result of this aggravation.
 
              
 
         (Def. Ex. 1, p. 23)
 
         
 
              On April 2, 1987, Dr. Neff wrote:
 
              
 
                Again I think his right shoulder and his worsening left 
 
              shoulder as well as his diffuse tenosynovitis has its 
 
              primary ideology and rheumatoid arthritis, but certainly 
 
              worsened and aggravated by the repetitive activity.
 
              
 
                This was certainly supported in the recent article in the 
 
              newspaper about carpal tunnel syndrome.
 
              
 
                At any rate, I will check him again in two to three 
 
              weeks, and we will see what needs to be done.  I appreciate 
 
              the opportunity of seeing this gentleman.
 
              
 
         (Def. Ex. 1, p. 21)
 
         
 
              On October 5, 1987, Dr. Neff wrote:
 
              
 
                I think it is fair to assume that a significant 
 
              percentage any impairment he has is due to the repetitive 
 
              activity in the workplace and not the underlying disease.  
 
              Some of his impairment would be due to the underlying 
 
              disease, but I doubt it would be as severe as it currently 
 
              exists if he were a sedentary employee or an office worker.
 
              
 
                I would estimate that 20 percent of his impairment would 
 
              be the result of ongoing rheumatoid arthritis and 80 percent 
 
              would be the result of repetitive activity, injury and 
 
              friction of inflamed [sic] structures of the shoulder.  
 
              After you originally asked me that very question many weeks 
 
              ago, I had a personal discussion with Dr. Rooney, who is a 
 
              Board Certified Internal Medicine Specialist and 
 
              subspecializes in arthritis.  He is what's know [sic] as 
 
              "rheumatologist."  His opinion was that this type of work 
 
              activity would indeed contribute more to the resulting 
 
              problem than with the underlying disease itself.  There are 
 
              many rheumatoid patients who have problems in their joints, 
 
              but most of them have been unable and unwilling to do the 
 
              type of hard repetitive work that Mr. Chambers has done for 
 
              some time.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Def. Ex. 1, p. 18)
 
         
 
              Dr. Neff's records reflect on January 8, 1988:
 
              
 
              Outpatient surgery with admit after - Mercy Hospital
 
              Medical Center
 
         
 
              Impingement syndrome release and a Mumford procedure
 
              - 23120, left shoulder
 
         
 
         (Def. Ex. 1, p. 17)
 
         
 
              On March 24, 1988, claimant's records reflect the following 
 
         operation:  "Operation Performed:  1.  Range of motion under 
 
         anesthetic left shoulder with associated intra-articular Marcaine 
 
         and steroid injection, 2.  Excision of sebaceous cyst."  (Def. 
 
         Ex. 1, p. 12)
 
         
 
              On June 14, 1989, Dr. Neff's notes reflect:
 
         
 
                His right shoulder continues with excellent motion, and I 
 
              think that we got to the right shoulder in time.
 
              
 
                 I do not believe that replacement of his left shoulder 
 
              is warranted at this time, because he still wants to 
 
              continue to work.  When he is nearing retirement, and is not 
 
              going to be doing his work, then, if his symptoms are 
 
              persistent, we would consider either arthrodesis of the 
 
              shoulder for the reduction of pain or a shoulder joint 
 
              replacement.
 
                 
 
                 His thumb still has the previous limitations, and those 
 
              will be permanent.  He is developing a rheumatoid nodule on 
 
              the volar aspect of his right thumb.
 
              
 
         (Def. Ex. 1, p. 1)
 
         
 
              Mercy Hospital records reflect on January 8, 1988:
 
              
 
              
 
              POSTOPERATIVE DIAGNOSIS:
 
              
 
              Subacromial impingement syndrome, left shoulder with 
 
              associated degenerative disease of the AC joint.
 
              
 
              OPERATION:
 
              
 
              Subacromial decompression and excision of the distal 
 
              clavicle with AC ligament excision, bursectomy, 
 
              acromioplasty.
 
              
 
         (Def. Ex. 1, p. 50)
 
         
 
              Mercy Hospital notes reflect on July 18, 1985:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              CHIEF SYMPTOM ON ADMISSION:
 
              
 
              Pain and clicking in the right shoulder.
 
              Locking of the right fifth finger.
 
              
 
              PRINCIPAL DIAGNOSIS:
 
              
 
              Rheumatoid arthritis with trigger finger, right fourth and 
 
              fifth fingers.
 
              
 
              SECONDARY DIAGNOSIS:
 
              
 
              Rheumatoid arthritis with chronic subacromial impingement 
 
              syndrome and subacromial bursitis, right shoulder.
 
              
 
              OPERATIONS, PROCEDURES & SPINAL TREATMENTS
 
         
 
              Trigger finger release, right ring and fifth fingers. 
 
              Subacromial decompression with acromioplasty.
 
              Resection of acromioclavicular ligament.
 
              Resection of coracoacromial ligament.
 
              
 
         (Def. Ex. 1, p. 85)
 
         
 
              Thomas W. Bower, LPT, wrote the following in a letter dated 
 
         May 11, 1989, which letter was also signed by Dr. Neff:  "Based 
 
         on the range of motion deficits today, this patient has sustained 
 
         a 14% impairment to the left upper extremity and a 4% impairment 
 
         to the right upper extremity based on range of motion studies."  
 
         (Def. Ex. 1, p. 263)
 
         
 
                              APPLICABLE LAW AND ANALYSIS
 
              
 
              
 
              Iowa Code section 85.26(1) provides:
 
              
 
                An original proceedings for benefits under this chapter 
 
              or chapter 85A, 85B or 86, shall not be maintained in any 
 
              contested case unless such proceedings is commenced within 
 
              two years from the date of the occurrence of the injury for 
 
              which benefits are claimed or, if weekly compensation 
 
              benefits are paid under section 86.13, within three years 
 
              from the date of the last payment of weekly compensation 
 
              benefits.
 
              
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 3, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of July 3, 1985 and February 2, 
 
         1983 are 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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              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.2nd 756, (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, (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer'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, (1960).
 
              
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital 
 
         Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles 
 
         Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 
 
         1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
         Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 
 
         106 N.W.2d 591.
 
         
 
              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, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
              
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
              
 
              
 
              A healing period may be interrupted by a return to work. 
 
         Riesselmann v. Carroll Health Center, 3 Iowa Industrial 
 
         Commissioner Reports 209 (Appeal Decision 1982).
 
         
 
              It is not necessary that claimant prove his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that a disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in a gradual 
 
         injury case is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever the injury date coincides with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining rate and the timeliness of 
 
         the claimant's claim under Iowa Code section 85.26 and notice 
 
         under Iowa Code section 85.23.
 
         
 
              Apportionment of disability between a preexisting condition 
 
         and an injury is proper only when there was some ascertainable 
 
         disability which existed independently before the injury 
 
         occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 
 
         (Iowa 1984).
 
         
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition is, of course, placed upon the defendant.  
 
         If evidence to establish a proper apportionment is absent, the 
 
         defendant is responsible for the entire disability that exists. 
 
         Varied Enterprises, Inc., 353 N.W.2d 407; Becker v. D & E 
 
         Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson, 
 
         Workmen's Compensation Law,  59.22; 22 Am.Jur.2d,  122; 2 
 
         Damages & Tort Actions  15.34[1](a).
 
         
 
              Claimant was almost 56 years old at the time of hearing.  He 
 
         is a high school graduate and has no additional formal education. 
 
         Claimant has been a truck driver for defendant employer for the 
 
         last 22 years and also drove a truck at certain other jobs prior 
 
         to this.  Claimant's only current transferable skill is basically 
 
         truck driving.  Claimant has a hobby of making miniatures and 
 
         building doll houses.  This is truly a hobby with financial 
 
         remuneration being secondary and of little consequence.  It 
 
         appears from claimant's most recent tax returns in evidence 
 
         (1985) that no income was derived from this hobby.  This hobby 
 
         seems to have therapeutic value to claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It is undisputed that claimant has rheumatoid arthritis, 
 
         which is progressing.  The medical evidence reflects that many 
 
         parts of claimant's body are presently affected by the arthritic 
 
         condition.  Dr. Neff has commented many times that he is amazed 
 
         at claimant's desire to continue working.  It is obvious 
 
         claimant's motivation to continue working under his adverse 
 
         medical condition results from his desire to work a minimum 
 
         number of years to obtain a good pension.  This requires claimant 
 
         to work to age 57 (9-23-90).  If claimant can work until age 57, 
 
         he will have 25 years with defendant employer and receive $1000 
 
         per month pension.
 
              
 
              Claimant alleges a February 2, 1983 right shoulder work 
 
         injury which occurred when claimant was unhooking a trailer from 
 
         a truck tractor.  This action was filed as an arbitration 
 
         petition on January 3, 1986. Defendants contend that this action 
 
         is not timely filed within the two year statute of limitations 
 
         under the provisions of 85.26 of the Iowa Code.  The record shows 
 
         claimant received one week and one day of benefits in February 
 
         1983 for this injury.  Claimant requested and was allowed to 
 
         amend his petition at the beginning of the hearing to change this 
 
         action to a review-reopening.  Defendants objected and further 
 
         contend that the request for an amendment is after three years 
 
         from the payment of benefits and therefore is still not timely.  
 
         The agency file reflects no prior decision or settlement.  Iowa 
 
         Code section 85.26 allows an arbitration action be filed within 
 
         three years from the date of the last weekly compensation 
 
         benefits.  Claimant's petition was filed within the three year 
 
         period.  Review-reopening is not the proper action.  The parties 
 
         appear to have proceeded under a misconception of the agency 
 
         records.  The undersigned will not allow the amendment and will 
 
         proceed with the February 2, 1983 injury as an arbitration action 
 
         as originally filed.  The undersigned finds that the February 2, 
 
         1983 injury action is a timely filed arbitration action and in 
 
         compliance with 85.26(1) of the Iowa Code.
 
         
 
              There is comparatively little testimony or medical evidence 
 
         regarding claimant's February 2, 1983 injury.  It is obvious from 
 
         the record that claimant was off work approximately eleven days 
 
         and recovered from this injury.  Claimant continued to work 
 
         following these eleven days at his same job.  There was no 
 
         permanent impairment given by any doctor in relation to 
 
         claimant's February 2, 1983 injury.  It is obvious from the 
 
         record that claimant's injury resulting in one week and one day 
 
         of temporary total disability is causally connected to his 
 
         February 2, 1983 injury, and it is so found.
 
         
 
              Dr. Neff's medical reports and letters are confusing from 
 
         the chronological sequence as they try to address the alleged 
 
         February 2, 1983 injury and the alleged July 3, 1985 cumulative 
 
         injury.  His depositions of May 19, 1986 and July 26, 1986 do not 
 
         clarify this confusion but, in part, add to it.  In March 1987, 
 
         Dr. Neff said the February 2, 1983 injury contributed to the 
 
         worsening of the subacromial bursitis and subsequent problem and 
 
         that the underlying rheumatoid arthritis was aggravated and 
 
         worsened by the February 1983 injury, and the surgical treatment 
 
         that resulted on the right shoulder was the result of this 
 
         aggravation.  Less than one month later, Dr. Neff indicated 
 
         claimant's right shoulder and his worsening left shoulder, as 
 
         well as claimant's diffused tenosynovitis has its primary 
 
         etiology in rheumatoid arthritis, but that it was certainly 
 
         worsened and aggravated by the repetitive activity.  When Dr. 
 
         Neff opined his 80-20 percent impairment rating in October 1987, 
 
         he referred to claimant's repetitive activity, injury and 
 
         friction of claimant's inflamed structures of the shoulder.  Any 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         disability from which claimant now suffers is not the result of 
 
         claimant's February 2, 1983 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              We will now proceed with claimant's July 3, 1985 alleged 
 
         cumulative injury to his left and right shoulders.  Dr. Neff 
 
         testified that claimant's current disability was 80 percent 
 
         caused by his truck driving and, therefore, is work related.  Dr. 
 
         Neff emphasizes that claimant's work did not or could not cause 
 
         rheumatoid arthritis.  Dr. Neff opined that the repetitive 
 
         wrenching or twisting of a nonpower steering vehicle, repetitive 
 
         overhead lifting and pulling, and pushing such as loading and 
 
         unloading, and tightening ropes and overhead latches on heavy 
 
         rear doors certainly contributed to the development of the 
 
         situation. Dr. Neff said in December 1985:  "[Claimant] was able 
 
         to regain full use of his right shoulder without problems, until 
 
         his more recent injury."  Dr. Neff gave claimant a final 
 
         functional rating of 4 percent of the right upper extremity 
 
         (which by stipulation and pursuant to Table 3 found at page 20 of 
 
         the AMA Guides To The Evaluation of Permanent Impairment, third 
 
         edition, converted to 2 percent of the body as a whole) and 14 
 
         percent of the left (which, again, by stipulation and pursuant to 
 
         Table 3 found at page 20 of the AMA Guides To the Evaluation of 
 
         Permanent Impairment, third edition, converts to 8 percent of the 
 
         body as a whole, and which pursuant to the combined values chart, 
 
         page 246, totals, for the 2 percent for the right side, a rating 
 
         of 10 percent of the body as a whole.
 
         
 
              The claimant was off work July 3, 1985 as a result of his 
 
         right shoulder problems and surgery was performed on July 18, 
 
         1985.  Claimant did not return to work until November 25, 1985. 
 
         Claimant's left shoulder was developing pain and injury symptoms 
 
         due to claimant's repetitive work as a truck driver.  In the 
 
         period when claimant was having right shoulder problems, he was 
 
         using his left arm and shoulder more and when it became extremely 
 
         hard for claimant to use his right arm and shoulder, additional 
 
         stress was placed on claimant's left side.  Claimant had surgery 
 
         performed on his left shoulder on January 8, 1988.
 
         
 
              The greater weight of evidence shows that claimant incurred 
 
         a cumulative work-related injury on July 3, 1985.  The greater 
 
         weight of medical evidence shows that claimant's disability from 
 
         which he now suffers is 80 percent causally caused by his July 3, 
 
         1985 cumulative injury.  The evidence shows claimant had a 
 
         preexisting rheumatoid arthritic condition that has been 
 
         materially aggravated, accelerated, worsened and lighted up by 
 
         claimant's repetitive work resulting in claimant's July 3, 1985 
 
         injury.
 
         
 
              The undersigned finds that claimant's July 3, 1985 
 
         cumulative injury arose out of and in the course of his 
 
         employment, and that claimant's present disability is 80 percent 
 
         caused by his July 3, 1985 injury and 20 percent by 
 
         nonwork-related causes.  It is found that claimant has an 8 
 
         percent impairment to his body as a whole as a result of his 
 
         right left shoulder injuries.  This decision is based on the 
 
         undersigned's belief that claimant will, in fact, retire at age 
 
         57 and will no longer be able to continue as a truck driver.  The 
 
         undersigned believes claimant would have been able to continue 
 
         working until age 62 if his heavy repetitive work had not 
 
         materially aggravated and hastened his rheumatoid arthritic 
 
         condition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         The evidence shows a $1,000 per month or approximately 40 percent 
 
         decrease in a pension to which claimant would be entitled for 25 
 
         years versus 30 years of service (age 57 versus age 62).  
 
         Claimant has a 10 percent permanent impairment to his body as a 
 
         whole. Claimant has a reduction in his earning capacity as a 
 
         result of his cumulative July 3, 1985 injury.
 
         
 
              Claimant has incurred a healing period beginning July 3, 
 
         1985 through November 24, 1985, and a second healing period 
 
         beginning January 8, 1988 through May 31, 1988, as a result of 
 
         claimant's cumulative July 3, 1985 injury.
 
         
 
              Claimant has incurred $13,827.45 in medical expenses, all of 
 
         which except $263.38 has been paid by the employer-provided 
 
         medical insurance in cooperation with the union group insurance 
 
         plan.  Defendants seek credit under 86.38(2) for benefits paid 
 
         under the group plan.  In light of what has been set out prior 
 
         hereto, defendants are responsible for 80 percent of the 
 
         $13,827.45 medical expenses, which include $178 in medical 
 
         mileage, and $85 medical expenses actually paid by claimant. 
 
         Twenty percent is the responsibility of claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant's February 2, 1983 work-related injury to his 
 
         right shoulder resulted in one week and one day of temporary 
 
         total disability to claimant.
 
         
 
              2.  Claimant's arbitration action as to his February 2, 1983 
 
         injury was timely filed as per 85.26(1), Iowa Code.
 
         
 
              3.  Claimant's one week and one day temporary total 
 
         disability resulted from claimant's February 2, 1983 injury.
 
         
 
              4.  Claimant has no impairment resulting from his February 
 
         2, 1983 injury.
 
         
 
              5.  Claimant had polyarthritis involving the shoulders, 
 
         elbows, wrists, meticarpalophalangeal joints, proximal 
 
         interphalangeal joint, knees, ankles, and metatarsal phalangeal 
 
         joints beginning November 1982.
 
         
 
              6.  Claimant was diagnosed as having rheumatoid arthritis on 
 
         or around February 3, 1983.  This condition was materially 
 
         aggravated, accelerated, worsened and lighten up by claimant's 
 
         repetitive work resulting in claimant's July 3, 1985 injury.
 
         
 
              7.  Claimant received a work-related cumulative injury to 
 
         his right and left shoulder on July 3, 1985 due to performing 
 
         heavy repetitive acts of driving a truck, loading and unloading, 
 
         and lifting and raising doors.
 
         
 
              8.  Claimant received a 10 percent impairment to his body as 
 
         a whole, of which 80 percent is a result of his work-related 
 
         cumulative injury on July 3, 1985, and 20 percent as a result of 
 
         claimant's preexisting rheumatoid arthritis nonwork-related 
 
         condition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              9.  Claimant's 8 percent impairment to the body as a whole 
 
         is causally connected to his cumulative injury of July 3, 1985.
 
         
 
              10.  Claimant incurred a healing period beginning July 3, 
 
         1985 through November 24, 1985, and January 8, 1988 through May 
 
         31, 1988, at the rate of $339.43 per week as a result of his 
 
         work-related cumulative injury on July 3, 1985.
 
         
 
              11.  If claimant continues his truck driving job, he will 
 
         have 25 years of service on his 57th birthday occurring on 
 
         September 23, 1990, which would entitle him to $1,000 per month 
 
         pension.  This sum is $750 less than claimant would receive at 
 
         age 62 for 30 years of service.
 
         
 
              12.  Claimant is performing basically the same type of job 
 
         as he was performing at the time of his cumulative work-related 
 
         injury on July 3, 1985, and has basically no loss of income.
 
         
 
              13.  Claimant has a reduction in earning capacity of which 
 
         80 percent is a result of his work-related injury of July 3,1985.
 
         
 
              14.  Claimant is entitled to have 80 percent of the 
 
         $13,827.45 medical expenses paid by defendants.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's February 2, 1983 work-related right shoulder 
 
         injury is causally connected to claimant;'s temporary total 
 
         disability of one week and one day for the period of February 3, 
 
         1983 through February 13, 1983.
 
         
 
              Claimant's arbitration action as to his February 2, 1983 
 
         action was timely filed in accordance with Iowa Code section 
 
         85.26(1).
 
              
 
              Claimant has no permanent impairment or industrial 
 
         disability as a result of his February 2, 1983 injury.
 
              
 
              Claimant's cumulative injury on July 3, 1985 arose out of 
 
         and in the course of his employment.
 
              
 
              Claimant's 8 percent impairment to his body as a whole is 
 
         causally connected to his cumulative work injury to his left and 
 
         right shoulders on July 3, 1985.
 
         
 
              Claimant incurred a healing period beginning July 3, 1985 
 
         through November 24, 1985, and January 8, 1988 through May 31, 
 
         1988, at the rate of $339.43 per week as a result of a 
 
         work-related cumulative injury on July 3, 1985.
 
         
 
              Claimant has a 40 percent industrial disability of which 80 
 
         percent (32 percent) is a result of claimant's July 3, 1985 
 
         cumulative work-related injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Defendants shall pay 80 percent of claimant's $13,827.45 
 
         medical expenses incurred as a result of claimant's July 3, 1985 
 
         cumulative work-related injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to one week and one day of 
 
         temporary total disability benefits at the weekly rate of three 
 
         hundred twenty-two and 26/100 dollars ($322.26) as to his 
 
         February 3, 1983 work injury, which amount has already been paid 
 
         and for which defendants shall be given credit.
 
         
 
              That defendants shall pay unto claimant healing period 
 
         benefits at the rate of three hundred thirty-nine and 42/100 
 
         dollars ($339.42) for the period beginning July 3, 1985 through 
 
         November 24, 1985, and January 8, 1988 through May 31, 1988, 
 
         which total forty-one point four two eight (41.428) weeks as to 
 
         his July 3, 1985 injury.
 
         
 
              That claimant is entitled to one hundred sixty (160) weeks 
 
         of permanent partial disability benefits at the weekly rate of 
 
         three hundred thirty-nine and 42/100 dollars ($339.42) beginning 
 
         June 1, 1988.
 
         
 
              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 pay or reimburse eighty percent (80%) 
 
         of the thirteen thousand eight hundred twenty-seven and 45/100 
 
         dollars ($13,827.45) medical expenses, which includes one hundred 
 
         seventy-eight (178) miles for medical care and eight-five dollars 
 
         ($85.00) which claimant has paid out of his own pocket, and 
 
         defendants shall be given credit for ten thousand eight hundred 
 
         fifty-one and 56/100 dollars ($10,851.56) of the medical expenses 
 
         under the provisions of 85.38(2), which has been paid under an 
 
         employer-employee union group plan.  The employer shall keep such 
 
         employee safe and harmless from any and all claims or liabilities 
 
         that may be made against them by reason of having received 
 
         payments only to the extent of such credit.
 
         
 
              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 Division of Industrial Services Rule 343-4.33.
 
              
 
              That defendants are ordered to file a first report of injury 
 
         on file number 810141 (July 3, 1985 injury) as soon as possible.
 
              
 
              That defendants shall file an activity report upon payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Signed and filed this 19th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James R. Lawyer
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St, Ste 500
 
         West Des Moines, IA  50265
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                        51100; 51108.50; 51801; 52402;
 
                                         51701; 2206; 1806
 
                                         Filed October 19, 1989
 
                                         Bernard O'Malley
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE C. CHAMBERS,
 
         
 
                                                   File Nos. 725096
 
         vs.                                                 810141
 
         
 
         CONSOLIDATED FREIGHTWAYS,
 
                                                 A R B I T R A T I O N
 
              Employer,
 
                                                      D E C I S I O N
 
         and
 
         
 
         NORTHWESTERN NATIONAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
              
 
         51801
 
         
 
              February 2, 1983 right shoulder injury; claimant awarded 1 
 
         week 1 day TTD.
 
         
 
         52402
 
         
 
              Causal connection found but no permanency.  Found petition 
 
         timely filed.
 
         
 
         51100
 
         
 
              July 3, 1985 injury found to have arose out of and in the 
 
         course of claimant's employment.
 
         
 
         51108.50
 
         
 
              Cumulative left and right shoulder injuries found to have 
 
         been caused by claimant's work related injury.  Claimant was a 
 
         truck driver who was required to unload and load his truck the 
 
         majority of the time.
 
         
 
         2206
 
         
 
              56 year old claimant found to have a preexisting rheumatoid 
 
         arthritic condition, which was materially aggravated, 
 
         accelerated, and worsened by claimant's repetitive work resulting 
 
         in his July 3, 1985 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Doctor opined 80 percent of claimant's 10 percent impairment 
 
         to his body as a whole was work related.
 
         
 
         1806
 
         
 
              Claimant found to have a 32 percent reduction in earning 
 
         capacity based on his retirement of $1000.00 per month, claimant 
 
         age 57 (25 years of service) vs age 62 (30 years of service) 
 
         $1750.00 per month retirement.  Claimant has no loss of actual 
 
         income while continuing to work, hoping to work till age 57.
 
         
 
         51701
 
         
 
              Credit given defendant for medical paid by group plan.