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(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.