BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD RICKETT, Claimant, VS. File No. 739306 HAWKEYE BUILDING SUPPLY CO., A P P E A L Employer, D E C I S I 0 N and U. S. INSURANCE GROUP, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from a partial commutation decision and a rehearing decision allowing $9,000.50 of claimant's requested $43,750.14 partial commutation. The deputy denied the portion as to attorney's fees of claimant's requested partial commutation holding that it would not be in claimant's best interest to grant a partial commutation to pay attorney's fees. The record on appeal consists of the transcript of the partial commutation hearing; claimant's exhibits 3 and 4; and affidavits filed by the parties for the rehearing. Both parties filed briefs on appeal. ISSUES Claimant states the following issues on appeal: 1. Whether as a condition precedent to the granting of a partial commutation for payment of attorney fees it is encumbent upon Claimant's attorneys to enter into a contractual obligation to provide Claimant with future legal services in connection with his claim for compensation benefits. 2. Whether the contingent attorney fee contract entered into between the Claimant and his attorneys is void as against public policy and therefore unenforceable. 3. Whether the attorney fee which Claimant seeks to pay with his commuted funds is a reasonable fee. RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 2 4. Whether Claimant's Petition For Partial Commutation of future payments of compensation to obtain a lump sum of money with which to pay his attorney fees should be granted as being in Claimant's best interests. REVIEW OF THE EVIDENCE The partial commutation and rehearing decisions adequately and accurately reflect the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the partial commutation and rehearing decisions are appropriate to the issues and evidence. ANALYSIS The deputy's analysis in conjunction with the issues and evidence presented is adopted. Claimant has established by the greater weight of evidence that it is in his best interest to grant a partial commutation for him to pay his taxes, to pay his noninjury related medical expenses and to buy a new automobile. For the reasons articulated in the partial commutation and rehearing decisions, a partial commutation to pay claimant's attorney's fees is not found to be in claimant's best interests. The amount of weekly benefits must be modified to take into account the time which has elapsed since the deputy's decision. FINDINGS OF FACT 1. Claimant is 50 years old, permanently and totally disabled, and his life expectancy is 1,357 weeks. 2. Claimant seeks a partial commutation to pay attorney fees, taxes, medical expenses, and to purchase reliable transportation. 3. It would be in claimant's best interest to grant a partial commutation equal to $9,000.50 to pay taxes, medical expenses, and to purchase reliable transportation. 4. Under the facts presented in this case the contingent fee agreement entered into between claimant and his attorney is void as a matter of public policy. 5. A partial commutation to pay the attorney's fees requested pursuant to the contingent fee agreement in this case would not be in claimant's best interest. 6. Claimant's rate of compensation is $256.78; a commutation of $18.69 per week will provide claimant with a commuted sum of $9,000.50; and, it is in claimant's best interest to commute on this basis. 7. The uncommuted value of claimant's benefits is $238.09 per week. CONCLUSIONS OF LAW RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 3 Claimant has proven by a preponderance of the evidence that it is in his best interest to grant a partial commutation of each weekly benefit equal to eighteen and 69/100 dollars ($18.69) for a total of nine thousand and 50/100 dollars ($9,000.50) for payment of taxes, medical expenses, and to purchase transportation; claimant has failed to prove by a preponderance of the evidence that a partial commutation for payment of attorney's fees pursuant to the contingent fee agreement in this case is in his best interest. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants pay claimant nine thousand and 50/100 dollars ($9,000.50) representing a commutation of eighteen and 69/100 dollars ($18.69) of each of his weekly benefits. Defendants shall pay unto claimant his remaining benefits at the adjusted rate of two hundred thirty-eight and 09/100 dollars ($238.09) in accordance with the arbitration decision of May 15, 1986. That claimant shall pay the costs of the appeal including the cost of the transcription of the hearing proceeding. Each party shall pay the costs incurred by them in the proceedings before the duputy. Signed and filed this 28th day of June, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Gary L. Johansen Attorney at Law 508 Davidson Building Sioux City, Iowa 51101 Mr. Melvin C. Hansen Attorney at Law 800 Exchange Building 1905 Harney Street Omaha, Nebraska 68102 Mr. Scott H. Hughes Attorney at Law 403 First Federal Savings & Loan Bldg. Council Bluffs, Iowa 51501 Page 1 before the iowa industrial commissioner ____________________________________________________________ : RONALD R. RICKETT, : : Claimant, : : vs. : : File No. 739306 HAWKEYE BUILDING SUPPLY CO., : : A P P E A L Employer, : : D E C I S I O N and : : U. S. INSURANCE GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Defendants appeal a ruling on a partial summary judgment awarding claimant partial commutation of claimant's permanent total disability benefits. The record before the deputy has been reviewed de novo on appeal. The decision of the deputy is affirmed and adopted as the final agency action in this case. issues The issues on appeal are: 1. Whether granting claimant a partial commutation of benefits is in his best interest? 2. Whether the period during which compensation is payable can be determined pursuant to Iowa Code section 85.45? 3. Whether it is claimant's best interest to grant a partial commutation when defendants have file a petition for a review-reopening hearing to determine the extent of claimant's disability? Review of the Evidence The ruling on motion for partial summary judgment dated May 4, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Page 2 Applicable law The citations of law in the ruling on the motion for partial summary judgment are appropriate to the issue and evidence. analysis The analysis of the evidence in conjunction with the law in the ruling on motion for partial summary judgment is adopted. In addition, the following analysis is added: Defendants contend that claimant's attorney fees which constitute the bulk of claimant's request for partial commutation are the subject of dispute between the parties. In a prior decision, this agency stated that "before a commutation can be granted for payment of attorney fees, a priori, the fee must be reasonable. It would not be in a claimant's best interest to grant a commutation to pay an unreasonable attorney fee." Rickett v. Hawkeye Building Supply, Appeal Decision, June 28, 1988. In an order approving attorney fees, this agency previously determined that the attorney fees requested by claimant's attorney constituted fair and reasonable charges for necessary services. Rickett v. Hawkeye Building Supply Co., Order Approving Attorney Fee, December 19, 1988. Therefore, the deputy was correct in ruling on the motion for partial summary judgment that the payment of claimant's attorney fees was in his best interest. Defendants do not have a dispute over the remainder of claimant's request for partial commutation. Next, defendants assert that an issue exists as to whether the period during which compensation is payable can be determined pursuant to Iowa Code section 85.45, and therefore, a summary judgment is improper. Defendants' argument was settled previously by this agency, See Rickett v. Hawkeye Building Supply Co., Appeal Decision, June 28, 1988. Also see, Sidles Distributing Company v. Heath, 366 N.W.2d 1 (Iowa 1985). Finally, defendants assert that an issue exists as to whether claimant is permanently totally disabled, therefore, it would not be in claimant's best interest to grant the partial commutation. Defendants have subsequently filed a petition for a review-reopening hearing to determine the extent of claimant's disability. The fact that claimant may be found in his subsequent review-reopening hearing not to be permanently totally disabled is merely speculation. At this time, claimant is permanently totally disabled and this is the final action of the agency. Page 3 conclusion of law Claimant proved by a preponderance of the evidence that it is in his best interest to grant a partial commutation of $21,659.42, for the payment of attorney fees and related legal expenses, medical expenses for claimant and his wife, including the cost of dental work and hearing aids, and a new refrigerator. Claimants remaining weekly benefits are adjusted to equal to one hundred ninety-two and 78/100 dollars ($192.78) per week for as long as claimant remains totally disabled. WHEREFORE, the ruling on the motion for partial summary judgment is affirmed. order THEREFORE, it is order: That defendants pay claimant twenty-one thousand six hundred fifty-nine and 42/100 dollars ($21,659.42) representing a commutation of forty-five and 31/100 dollars ($45.31) of each weekly benefit. Defendants shall pay unto claimant his remaining benefits at the adjusted rate of one hundred ninety-two and 78/100 dollars ($192.78) per week for as long as claimant remains totally disabled. That all costs of this action are charged to defendants pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of July, 1990. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Gary L. Johansen Attorney at Law 508 Davidson Building Sioux City, Iowa 51101 Mr. Melvin C. Hansen Attorney at Law 800 Exchange Building 1905 Harney Street Omaha, NE 68102 1001-1001.10-3003.2 Filed June 28, 1988 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD RICKETT, Claimant, VS. File No. 739306 HAWKEYE BUILDING SUPPLY CO., A P P E A L Employer, D E C I S I 0 N and U. S. INSURANCE GROUP, Insurance Carrier, Defendants. 1001 - 1001.10 - 3303.2 Claimant requested partial commutation to pay attorney's fees pursuant to contingent fee agreement between claimant and his attorney. Under the facts presented in this case the contingent fee agreement was found to be void as a matter of public policy. Therefore, a partial commutation to pay fees pursuant to this agreement would not be in claimant's best interest. 3303.22 Claimant allowed a partial commutation to pay taxes, to pay noninjury related medical expenses and to purchase a new car. The amount commuted was based upon a fraction of each weekly benefit due. Calculated as follows: Weekly rate $256.78 Life expectancy 1357 weeks Table 343-6.3(l) Present value 481.6513 weeks Table 343-6.3(2) Amount sought to pay expenses $9,000.50 Amount to be commuted $9,000.50/481.6513 = $18.69/week Amount of weekly benefit due after partial commutation $256.78 - $18.69 = $238.09 3303.20 Filed July 19, 1990 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : RONALD R. RICKETT, : : Claimant, : : vs. : : File No. 739306 HAWKEYE BUILDING SUPPLY CO., : : A P P E A L Employer, : : D E C I S I O N and : : U. S. INSURANCE GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 3303.20 The greater weight of the evidence supports the conclusion that it is in claimant's best interest to grant claimant's request for a partial commutation of his permenant total disbility benefits. In a prior agency decision, claimant's attorney's fees were determined to be reasonable and payment of the fees is in claimant's best interest. Defendants assert that it would not be in claimant's best interest to grant partial commutation since a petition for a review-reopening hearing has been filed. Held that it is merely speculation that claimant may be adjudged in a subsequent review-reopening not to be permenantly totally disabled. At this time, claimant is permanently totally disbaled and this is the final action of the agency. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RONALD RICKETT, Claimant, File No. 739306 VS. D E C I S I 0 N HAWKEYE BUILDING SUPPLY CO., 0 N Employer, R E H E A R I N G and U.S. INSURANCE GROUP, Insurance Carrier, Defendants _________________________________________________________________ INTRODUCTION On December 10, 1986 rehearing was granted on claimant's application for partial commutation which had been granted in part and denied in part by a decision filed November 21, 1986. Additional record has been submitted by the parties as follows: 1. Affidavit of Gary Johansen and attached exhibits A through E. 2. Affidavit of Ronald Rickett. 3. Affidavit of Raymond Johansen. 4. Affidavit of Melvin C. Hansen. 5. Affidavit of Norma Buchanan. All objections to those affidavits are hereby overruled. ISSUES 1. Is the attorney fee which claimant seeks to pay with his commuted funds a reasonable fee? 2. Is it in claimant's best interest to pay the attorney's fees by commutation? EVIDENCE PRESENTED This summary of the additional evidence reviews only those facts which are believed to be relevant to the determination made in this decision. All of the material has been reviewed whether specifically set out or not. Gary L. Johansen states that he is licensed to practice law in the state of Iowa. In November 1983 he was contacted by the claimant concerning the injury of June 7, 1983. Claimant was at that time receiving weekly compensation checks from the defendants. Counsel advised claimant he could not predict the outcome of his case. Claimant and Mr. Johansen entered into a contract for services where claimant would pay unto counsel "one-third of the amount of his recovery of industrial disability." (Affidavit P. 4) The attorney fee contract specifically excluded healing period benefits and the one-third contingent fee "would apply only to the value of the ultimate disposition of his claim, which would not occur until far, far into the future." Claimant was to reimburse counsel for all expenses advanced. Attorney Johansen states that the fee agreement he entered into with claimant is the usual and customary practice in his office, in Sioux City, Iowa, and in northwest Iowa. He states that this practice has been followed for at least twenty years. After having arrived at a fee arrangement, Mr. Johansen undertook representation of the claimant. While counsel gathered evidence he attempted to negotiate with defendants. Defendants did not respond to counsel's settlement proposals. On or about February 25, 1985 counsel filed a petition in arbitration with the industrial commissioner "seeking resolution of the duration of healing period and degree of industrial disability sustained by Claimant as a result of his work injury....... (Affidavit p. 9) Claimant's petition for arbitration was heard on March 4, 1986. One of the issues at hearing was whether claimant received an injury arising out of and in the course of employment. On May 16, 1986 the deputy industrial commissioner filed his decision which found that claimant suffered an injury while in the employ of defendant which caused him to be permanently and totally disabled. The affidavit of Ronald Rickett discloses the following: He began receiving workers' compensation benefits following his injury in June 1983. Claimant became concerned that his back condition from the injury was not improving. On November 16, 1983 claimant made an appointment to see attorney Johansen at which time he entered into the contingent fee contract with counsel. Claimant understood that he was to pay a fee equal to "one-third of the amount of any recovery they (attorneys) could obtain for me, based upon industrial disability, whether my claim was resolved through a settlement, or by an award entered by the Industrial Commissioner if it actually became necessary to place my claim in litigation..." (Affidavit p. 2) Claimant later states that he was advised that "the attorney fee matter would be resolved only after the value of my claim could be established." (Affidavit p. 4) Raymond Johansen states in his affidavit that it is the usual and customary practice in the Sioux City, Iowa, area for attorneys to charge a one-third contingent fee in workers' compensation cases. Mr. Johansen specifies a wide variety of circumstances which arise in workers' compensation matters. Melvin C. Hansen states that from the inception of claimant's injury through the date of hearing on March 4, 1986 defendants had paid claimant weekly benefits and medical expenses related to his injury. Further, that "at no time prior to the hearing on March 4, 1986 had the U. S. Insurance Group opposed or intended to terminate weekly benefits paid to Mr. Rickett..." (Affidavit p. 2) Norma L. Buchanan states she is the senior claims supervisor RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 3 for the insurance carrier. She states that the insurance carrier has paid benefits to the claimant commencing July 12, 1983 and continuing to the present. She further states that she had reviewed the insurance carrier's file and that at no time has the insurance carrier considered termination of claimant's benefits. APPLICABLE LAW AND ANALYSIS The jurisdiction of the industrial commissioner of the subject matter and the parties in this case, as it relates to claimant's application for partial commutation, arises, by virtue of Iowa Code section 85.45. Iowa Code section 86.39 grants to the industrial commissioner jurisdiction of the subject matter of this rehearing, approval of attorney fees, claims, and liens. Approval of such matters are defined by Industrial Services Rule 343-4.1(9) as a contested case proceeding under section 17A.2(2). As a contested case proceeding the industrial commissioner does not presently have jurisdiction of the necessary parties to make a binding determination of the issue. Since, however, the determination of the reasonableness of the fee in this case is necessary to pass on the question of claimant's application for partial commutation, a determination must be made, though arguably not at this time binding. It is the intent and purpose of Code section 86.39 that claims for attorney fees be made and enforced against injured workers only under the protection of the workers' compensation act. Kratz v. Holland Inn, 186 Iowa 963 (1919). In Workmen's Compensation Law, Rules and Regulations, 1941, 41 former Industrial Commissioner John T Clarkson states: The fair interpretation of this section of the law imposes the duty upon the Commissioner to determine what may be a fair and reasonable charge of an attorney fee for services rendered an injured employee in Workmen's Compensation matters..., which necessarily means the Commissioner's conclusions must be based on the required service and all facts bearing upon what is a fair and reasonable fee. In this case the record is not sufficient to arrive at a determination of the reasonableness of the fee, consistent with the duty as outlined above. The record is sufficient, however, to determine that claimant's partial commutation to pay attorney fees should not be granted for the reason that the attorney fee contract upon which the fee is based is void as a matter of public policy. It should be noted at the outset that "the Commissioner should not permit the financial condition of the injured employee to control or materially influence his judgment..." At the same time, however, "the Commissioner must not shut his eyes and regard the case as one prosecuted for the benefit of the attorney...." Id., at 41. In any action to establish a claim for attorney fees or enforce a lien for an established fee, the burden rests upon the attorney to prove by a preponderance of the evidence that the fee RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 4 claimed is reasonable. This burden is placed upon the attorney as a result of special standards to which the attorney is subject by the Iowa Code of Professional Responsibility for Lawyers and the ethical canons and disciplinary rules thereunder. See EC (ethical consideration) 2-19 and DR (disciplinary rule) 2-106, ICPRFL. . The essential facts in this case relating to the attorney fee are not in dispute. The claimant hurt his back at work in July 1983. The defendants commenced payment of weekly benefits to the claimant soon thereafter. Claimant briefly returned to work, was unable to work, and payments continued. Claimant also continued to receive medical treatment provided by the defendants. In November 1983 claimant consulted attorney Gary Johansen. At that time claimant was continuing to receive payments. Claimant and his attorney entered into an oral contract which provided that counsel would receive one-third of all compensation paid to claimant after claimant's period of recuperation and upon final disposition of his claim whether such amount was determined by agreement of the parties or upon hearing before the industrial commissioner. Counsel undertook representation of the claimant, collected relevant evidence, and solicited settlement offers from defendants. Defendants did not respond to settlement solicitations but continued payments to claimant. In February 1985 claimant's counsel filed a petition alleging claimant received an injury arising Out of and in the course of his employment and alleging permanent disability as a result thereof. Defendants denied claimant's allegations but continued payment of benefits. The matter went to hearing before a deputy commissioner on March 4, 1986. On May 15, 1986 the deputy commissioner ruled that claimant had been permanently and totally disabled as a result of an injury at work. Since the deputy found claimant to have been permanently and totally disabled under section 85.34(3), lie did not make a determination of the length of claimant's healing period under section 85.34(i). Counsel now seeks to collect under the terms of his fee contract, twenty-eight percent of claimant's weekly benefits from the date of the decision by the deputy commissioner. From the date of claimant's injury to the decision of the deputy commissioner, defendants made payments to the claimant and provided him medical treatment for his back. They did not, however, at any time stipulate or concede that claimant suffered an injury arising out of and in the course of his employment. Defendants have by affidavit stated that as of the date of the deputy's decision they were continuing payments to claimant and had no intent at that time of terminating those payments. Claimant's counsel characterizes the fee agreement between himself and his client as a contingent fee contract. It would at first glance appear to be so. Counsel correctly points out that courts have long recognized the validity of the contingent fee contract generally. See Wallace v. Chicago, Milwaukee & St. Paul Railway, 112 Iowa 565, 567-68, 84 N.W. 662, 663 (1900). The industrial commissioner also recognizes the validity of the contingent fee in workers' compensation matters. See Curtis v. Little Ginny Transportation, file numbers 776283/747223 (December RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 5 15, 1986). The court's power to regulate the reasonableness of the contingent fee contract arises under its inherent power to regulate the bar. Dunn v. H. K. Porter Co., 602 F.2d 1105, 1109 (3d Cir. 1979). The commissioner's authority arises by virtue of section 86.39. In either case, the principle remains the same that under such general supervisory powers the court, or in this case the commissioner, may and should scrutinize contingent fee contracts and determine the reasonableness thereof. Rosenthal v. First National Bank, 127 Ill.App.2d 371, 376, 262 N.E.2d 262, 265 (1970 . All of the above principles and citations can be found in Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331, 9 A.L.R. 4th 181 (Iowa 1980). In Wunschel the court held that a contingent fee contract for the defense of an unliquidated tort damage claim which is based upon a percentage of the difference between the prayer of the petition and the amount awarded is void. Id., at 337. Prior to arriving at this holding, the court undertook an extensive analysis of the factors which must be considered in reviewing a contingent fee contract in relation to matters of public policy. Before such an analysis can begin here, there must be a clear understanding of the subject matter of the fee agreement, i.e., workers' compensation benefits in the State of Iowa. Prior to July 1, 1982 payment of weekly compensation by an employer to an injured worker constituted an admission of (1) the employer-employee relationship and (2) that the worker had received an injury arising out of and in the course of his or her employment. See section 86.13, Code 1981. In case of questionable liability this tended to work adversely to the worker since the employer tended not to commence payments in order not to waive potential defenses. In 1982 the law was amended to allow employers to commence payments without admitting liability under the act. The 1982 amendments changed the nature of the interest of the worker in compensation benefits. In short, prior to July 1, 1982 the claimant's right to weekly payment was contingent upon the question of liability; subsequent to July 1, 1982 the right to weekly compensation was no longer contingent on the issue of liability. Although employees lost some degree of certainty as to ultimate liability, they gained in the sense that the employer could pay in cases of questionable liability where they otherwise might not. Further, the legislature codified the holding in Auxier v. Woodward State Hospital-School,266 N.W.2d 139(Iowa 1982) which recognized that the receipt of workers' compensation benefits, once commenced, create in the worker a limited property right. As such, the worker is entitled to minimum due process in the form of notice of termination unless he has returned to work. The property right created by the commencement of compensation payments is a present interest subject to termination on thirty days notice. An analogy could be made to that of a tenant at will. The property interest created is not a contingent interest. The continued receipt of payments is not in such cases determined on liability even though they are subject to termination. The continued receipt of benefits does not RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 6 become contingent until thirty days after notice of termination. At that time and only until that time does the worker's right to future compensation become contingent on the question of liability. Consequently, a determination of liability while payments are being made does not have the effect of obtaining for the claimant a present property interest; it changes the nature of his present interest from that of a tenant at will to that of a tenant for a term of weeks subject to divestment upon review-reopening or death. A determination of nonliability has the effect of terminating the present property interest. It is with these principles in mind that the attorney fee contract in question here must be reviewed. The attorney fee contract in this case provided that the claimant would pay one-third of his weekly benefits to his counsel after his healing period had been completed and a final determination of his entitlement had been made by agreement or decision. When a contingent fee contract is ambiguous, it should be construed in a manner to reflect the intent of the parties and to obtain a reasonable result. Carmichael v. Iowa State Highway Commission, 219 N.W.2d 658 (Iowa 1974). It would appear that in this case it was the intent of the parties that no fee be taken on claimant's healing period benefits as defined in section 85.34(l). It is not clear at what point thereafter a fee was to be applied to benefits. In the Wunschel case at 333 the court, citing Carmichael, pointed out that it is the essential characteristic of a contingent fee contract that the attorney's right to be paid any amount for his services is dependent on the result obtained. In Wunschel the court cited the following disciplinary rules and ethical considerations relevant to fee determinations: DR2-106: (A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 7 (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent. (C) A lawyer shall not enter into an arrangement for, charge or collect a contingent fee for representing a defendant in a criminal case, or either party in any action involving domestic relations. EC5-7 recognizes circumstances in which a contingent fee is appropriate. It provides: The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of his client during litigation generally makes it undesirable for the lawyer to acquire a proprietary interest in the RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 8 cause of his client or otherwise to become financially interested in the outcome of the litigation. However, it is not improper for a lawyer to protect his right to collect a fee for his services by the assertion of legally permissible liens, even though by doing so he may acquire an interest in the outcome of litigation. Although a contingent fee arrangement gives a lawyer a financial interest in the outcome of litigation, a reasonable contingent fee is permissible in civil cases because it may be on the only means by which a layman can obtain the services of a lawyer of his choice. But a lawyer, because he is in a better position to evaluate a cause of action, should enter into a contingent fee arrangement only in those instances where the arrangement will be beneficial to the client. EC2-17 is also relevant. It provides: The determination of a proper fee requires consideration of the interests of both client and lawyer. A lawyer should not charge more than a reasonable fee, for excessive cost of legal service would deter laymen from utilizing the legal system in protection of their rights. Furthermore, an excessive charge abuses the professional relationship between lawyer and client. On the other hand, adequate compensation is necessary in order to enable the lawyer to serve his client effectively, and to preserve the integrity and independence of the profession, Finally, EC2-20 deals directly with situations in which a contingent fee contract is or is not proper. It provides: Contingent fee arrangements in civil cases have long been commonly accepted in the United States in proceedings to enforce claims. The historical bases of their acceptance are that (1) they often, and in a variety of circumstances, provide the only practical means by which one having a claim against another can economically afford, finance, and obtain the services of a competent lawyer to prosecute his claim, and (2) a successful prosecution of the claim produces a res out of which the fee can be paid. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified. In administrative agency proceedings contingent fee contracts should be governed by the same consideration as in other civil cases. Public policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a res with which to pay the fee. (emphasis added) The court further cited the following principles of law: A contract which contravenes public policy will not be enforced by the courts. See, e.g., Rowen v. Le Mars Mutual Insurance Co., 282 N.W 2d 639, 650 (Iowa 79); RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 9 Tschirgi v. Merchants National Bank, 253 Iowa 682, 689-90, 113 N.W.2d 226, 230 (1962). This is a delicate power which "should be exercised only in cases free from doubt." Richmond v. Dubuque & Sioux City Railroad, 26 Iowa 191, 202 (1868). One ground for invalidating a contract on policy grounds is its contravention of "any established interest of society." Liggett v. Shriver, 181 Iowa 260, 265, 164 N.W. 611, 612 (1917). It is not necessary that the contract actually cause the feared evil in a given case; its tendency to have that result in sufficient. Jones v. American Home Finding Association, 191 Iowa 211, 213, 182 N.W. 191, 192 (1921). The principles in our cases are consistent with the standards for determining whether a contract contravenes public policy which are delineated in Restatement (Second) of Contracts 320, 321 (Tent. Draft No. 12, 1977). The court also cited extensively from the amicus curia brief of the Iowa State Bar Association Committee on Professional Ethics and Conduct and adopted its view of the problems inherent in the type of fee contract under review in that case. While the specific analysis of the problems created by the Wunschel fee contract is not controlling here, application of the general principles obtains the same result. First, as discussed above, a worker who is receiving payments of workers' compensation benefits has a present property interest, not contingent on liability. Claimant was in this position at the time he entered into the contingent fee contract with his attorney. The contingent fee contract specifies two events which would trigger counsel's entitlement to a fee: (1)recuperation from his disability and (2) a final disposition of his entitlement to benefits. The occurrence of these two events at the same time is unlikely. The first occurrence, if construed to mean the termination of healing period benefits under section 85.35(4)(1), cannot be the basis of a contingent fee contract. It bears no relationship whatsoever to the services of counsel. It is either a factual question of whether the claimant has returned to work or a medical finding as to maximum recovery or ability to return to substantially similar employment. However, if the fee contract is so interpreted and should be given validity, then several important conflicts become immediately apparent. For one thing, the decision awarding claimant benefits in this case did not establish healing period for claimant. It in fact found that claimant had been totally disabled since his injury. Thus, perhaps counsel is entitled to no fee. More importantly, however, such a contract could allow counsel to recover even if the issue of liability was resolved adversely to his client. It is possible in this case, as well as others like it, that the industrial commissioner could resolve the liability issue adversely to the claimant. In those cases where payments have continued after claimant has reached the statutorily defined healing period but prior to a determination of liability, counsel would be entitled to a percentage fee against those payments even though the result he obtained for his client was the termination RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 10 of a present property right. In other words, counsel could charge a fee for the amounts received by claimant between the date he achieved maximum medical recovery and the ultimate disposition of his claim" even when the disposition is adverse to his client, either as a result of a finding of no liability or a determination of an extent of disability less than the defendants had voluntarily paid. This is clearly an absurd result and need not be discussed further at this time since counsel asserts his fee on the basis of payment made after the decision of May 1986. The attorney fee contract thus under scrutiny here is one where a worker is receiving payments of workers' compensation benefits under section 86.13 and enters into a contract to pay one-third of his benefits to his attorney on final disposition of his claim by arbitration decision or settlement and his benefits have not been terminated nor has he received notice of termination. There are several matters in such a contract which have a tendency to cause precisely the same problems, if not more, than those which resulted in the voiding of the contract in Wunschel. One of the most salient facts is directly stated by claimant's counsel in his objections to the affidavits filed by,defendants when he states "there are no facts in any of the records now before the commissioner to demonstrate what the Defendants would or would not do in the future as far as continuing to pay weekly workers compensation benefits to claimant and make payment of future medical expenses incurred by the claimant ...." Counsel assumes this fact works in his favor on the theory that claimant's future benefits were contingent on adjudication of liability and degree of disability. As stated above, this is not the case and this record merely demonstrates that counsel cannot prove what benefits the claimant has received as a result of his services as opposed to those he received as a result of the defendants voluntary compliance with the provisions of chapter 85. As Wunschel pointed out, a contingent fee contract has two essential elements: (1) the percentage and (2) the amount against which the percentage is taken. The amount against which the fee is taken in this case is not determinable because the duration of voluntary payments made to the claimant is not determinable. it becomes a matter of pure speculation what the claimant would have received absent the services of counsel. That is not to say that the services of counsel may not be of great benefit to a claimant in these circumstances. Indeed, the mere knowledge by defendants that the claimant has consulted and retained counsel may encourage them to continue payments longer than they otherwise would, but it nevertheless remains counsel's obligation and burden to prove that the benefit received or the result obtained was the result of his efforts. The result obtained in this case did not establish workers' compensation benefits for claimant. It converted claimant's undetermined right to benefits to a determinable one. In short, it merely established a definitive value to his claim. Analysis of the case could conclude here; it should not, however, because the problems raised are not adequately resolved merely on the finding that counsel has failed to meet his burden. The problem goes much deeper. RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 11 "[Tlhe guiding principle for any fee or an agreement for a fee is that it is, under all of the circumstances known at the time, reasonable. Both parties must have sufficient information upon which to make an informed decision; this includes the client." Wunschel, at 336. The lawyer knows that a claimant who i,s receiving compensation payments cannot be terminated without notice or a return to work; the client may not. The lawyer knows the defendants are subject to penalties for unreasonable termination of benefits; the client may not. The lawyer knows that the law defines, in many cases, the extent of the claimant's recovery; the client may not. The lawyer knows that if the issue of liability is lost in litigation, present benefits being received by the claimant will terminate; the client may not. The lawyer knows that the defendants could pay all of the compensation due to claimant voluntarily with no decision or settlement being necessary; the client may not. The lawyer knows that the employer must act in good faith in advising the client as to the character of his payments; the client may not. At the time the claimant in this case entered into the attorney fee contract he had no way of knowing what the contingencies might be as to continued compensation benefits. This is admitted by both claimant and his counsel. It is in fact difficult to imagine how counsel could make an informed decision. It is doubtful at the time the contract was made that even the defendants knew what they would voluntarily pay claimant. They were, however, paying. As serious as the above problems may be, there is yet another problem with this contract that demands that it and any like it be void as against sound public policy. This contract creates "differing interests" between the lawyer and his client. "'Differing interests' include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client whether it be a conflicting, inconsistent, diverse or other interest." ICPRFL - Definitions. In the instant case the claimant's continued receipt of benefits was not contingent upon a final disposition of his claim either by decision or agreement. Under the contract, his attorney's fee was contingent upon establishing the liability of defendants or negotiating a settlement with them. The longer the claimant continued to receive voluntary payments without a "final disposition" the less he would owe in attorney fees. The sooner there was a "final disposition" the greater would be the fee of his attorney. The attorney, not an independent fact finder controls his fee. Wunschel, at 336. The claimant can receive benefits without taking the risk inherent in litigation; the attorney, however, cannot establish a fee without his client assuming those risks. The problems for both attorney and client in such an arrangement would appear to be apparent. "It is difficult to believe, upon reflection, that such a fee arrangement in the long run will foster the harmony a lawyer must seek to maintain with his client where fees are concerned." Wunschel, at 336. The client may believe that the lawyer acted out of his own financial interest in proceeding to litigation that, as far as known to him, did nothing but result in a higher fee to his attorney. Workers who might well benefit from legal advice may be reluctant to do so for fear of losing what they already have to an attorney. RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 12 The attorney as well may be inclined to negotiate an early settlement of a case merely to establish a liquidated amount upon which to collect a fee. He may be unwilling to fully disclose to his client the risks and aggravation of the litigation process. Litigation may be commenced which is not necessary further delaying those cases where no payment of compensation has been made or already terminated. The public may perceive the attorney's actions as solely for his financial benefit and cause the workers' compensation system as well as the legal profession to fall into disrepute. The Wunschel case is a valid starting point for analysis of the public policy considerations of any fee arrangement in a workers' compensation proceeding. It must be remembered, however, that the public policy concerns of the court which arises from its inherent power to regulate the ethical conduct of lawyers is not necessarily the public policy concerns of the industrial commissioner which arise from his statutory duty. To be sure the industrial commissioner is required by statute to be a lawyer and as such shares common interests with that of the legal profession as a whole. However, there must be no mistake that his paramount concern must be administration of the workers' compensation law in such a manner as to insure benefit to the injured employee or his or her dependents. Consequently, it may appear at times that the interests sought to be protected by the court and those of the commissioner are at odds. RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 13 For example, one of the distinguishing factors between this case and that which confronted the court in Wunschel is the manner in which jurisdiction of the issue is obtained. The controversy in Wunschel would never have arisen had the client never objected to the fee. He did object and thus the matter came before the court. In this case, however, there is no disharmony between the claimant and his attorney. Claimant, properly so, feels well served by his attorney and has no objection to the fee counsel seeks for his services. One of the policy matters with which the court was concerned in Wunschel is embodied in EC2-23, ICPRFL which requires the lawyer to be zealous in his efforts to avoid controversies with his client over fees. There can be no doubt that counsel in this case has fulfilled this canon. Here, it was the industrial commissioner who placed counsel's fee into issue. It might thus appear that. the policy interest of the court in avoiding issues over attorney fees is in conflict with the commissioner's duty to raise the issue in certain cases. In addition, it cannot go unnoticed that in Wunschel after considerable research, the court was unable to find cases in which similar contingent fee arrangements had been made. This record establishes that it is the usual and customary practice of lawyers in Sioux City, Iowa, and in the northwest Iowa geographic area to enter into such contracts with injured workers. Indeed, it is fair to assume that such practices are common, usual and customary throughout the state of Iowa. Thus, while the contingent fee contract in Wunschel was literally one of a kind, it is apparent that this case represents the practices of a large number of lawyers in the state. Prudence, indeed, will dictate that practices long established should not be changed for light and transient reasons. Attorneys, however, are no less obliged to conform their practices to accommodate the changing interests of their individual clients and that of society as a whole, than are the injured worker, his employer, the insurance carrier, or the industrial commissioner. When they fail to do so, it is both the right and the duty of the industrial commissioner to void that practice in favor of the established interest of society as a whole. So that there be no misunderstanding as to the public policy of the industrial commissioner in regard to attorneys' fees, the following principles relating thereto are stated. It is the policy of the industrial commissioner: 1. That the workers' compensation law is to be administered and construed to insure that the injured worker or his or her dependents receive the benefits under the law to which they are entitled. 2. To encourage voluntary compliance with the provisions of the workers' compensation law. 3. To discourage unwarranted litigation. 4. That injured workers or their dependents should have available to them, if desired, their choice of experienced and competent counsel to represent their interests. 5. That the logical basis for determination of attorney fees is whether the services rendered were reasonably necessary and the charges made therefore were fair and reasonable. RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 14 6. That fixed fee schedules which may impair the right of attorneys and clients to negotiate fair and reasonable contracts for fees for services should not be established. The usual and customary practice of entering into contracts. of the nature revealed in this record is in contravention of the above policies. Attorney fee questions come before the commissioner in one of four ways. A contested case proceeding filed by the claimant, a contested case proceeding filed by his attorney, an application for commutation where one of the purpose of the commutation is to pay fees, or by a contested case proceeding commenced by the industrial commissioner pursuant to rule 343-4.5. This broad supervisory power arises by virtue of the public interest in insuring that that law is administered for the benefit of the injured worker or his or her dependents. Similar public policy is reflected throughout the workers' compensation act. Agreements between the worker and his employer are not valid without the approval of the industrial commissioner. Section 86.13; section 85-35. An employee cannot waive the amount of compensation payable to him. Section 85.55. Workers' compensation benefits are not subject to attachment, garnishment or execution. Section 627.13. An employee involved in any contested case proceeding may not settle the controversy without the approval of the industrial commissioner. Section 86.27. Finally, all claims for attorney fees are subject to approval by the commissioner and no lien for any such fee is enforceable without his approval of the amount thereof. Section 86.39. It is understood that the powers of the industrial commissioner are delicate and require mature deliberation and full consideration of all interests before those powers are exercised in a given case or class of cases. EC7-14 ICPRFL. The commissioner recognizes that there are many circumstances and situations which arise that compel an injured worker to seek legal assistance. The worker should be free in so doing to select the counsel of his choosing and both he and his counsel must be able to contract for legal services without unwarranted interference. If, however, upon proper review of the matter it appears that counsel has overreached, the commissioner should not hesitate to disallow any portion of a fee that is excessive or unreasonable. One of the further distinctions between this case and Wunschel is that the contract in Wunschel did not involve a present property right of the client. This contract does. it could be argued that the fee contract in this case is not a contingent fee contract at all. For example, the attorney here seeks a percentage of all compensation paid to claimant after the date of the deputy commissioner's decision on May 16, 1986. Assume, arguendo, that also on May 16, 1986 defendants had served upon claimant a thirty day notice of termination of benefits pursuant to section 86.13. Even without the decision on liability, claimant would have received an additional thirty days of compensation pursuant to statute. His receipt of those benefits would not have been as a result of the outcome of the litigation. Yet, under the contract, counsel would still be RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 15 entitled to his percentage fee. When thus viewed, it becomes apparent that such agreements between counsel and claimant are not contingent fees but rather an acquisition by counsel of a contingent interest in claimant's present and existing property rights. The outcome of the litigation does not create for the client a property interest, that interest was created by statute. The outcome of the litigation merely brings about the condition subsequent upon which counsel's contingent interest in the client's property right becomes vested. This is clearly contrary to the goal of insuring that injured workers receive the benefits to which they are entitled under the act. It is also contrary to the goal of discouraging unwarranted litigation. It raises the specter of litigation, not to establish any right for the benefit of the worker, but litigation brought for the purpose of establishing an attorney's fee. It would require in every case prosecuted pursuant to such an agreement a determination of the motives of counsel. It places the commissioner in the wholly untenable position of deciding in each case that it was the worker's interest that was served and not only his attorney's. The widespread practice of utilizing contracts of this nature might compel the industrial commissioner in every case to exercise his discretionary power to commence contested case proceedings as regards to fees to insure that overreaching has not occurred. Not only is such a procedure far beyond the resources of the industrial commissioner's office, but would surely lead to mistrust and suspicion between his office and the bar. Such circumstances would not foster the goal of encouraging voluntary compliance with the workers' compensation law. It is fully recognized that the private bar is essential to the goal of encouraging voluntary compliance with the law. As already pointed out, the mere knowledge by an employer that a worker is represented by counsel may insure that unreasonable termination of benefits does not occur. See section 86.13. Also, the attorney may be able to insure that the employer acts in good faith and thus alleviate some of the fears and concerns of the worker which may have been present here. See section 85.38(4). Attorneys should be encouraged to undertake representation of injured workers who are receiving payments. The basis of their fee, however, must not be a purported contingent fee, it must be based upon the reasonable necessity of the services undertaken. Nothing herein should be construed to limit the right of attorneys and their workers' compensation clients from entering into a reasonable contingent fee contract. It must, however, be a truly contingent fee where both the risks and rewards assumed by each party to the contract are the same. Thus, a contingent fee contract entered into prior to the voluntary commencement of payments, where commencement of voluntary payments was the result of the attorney's efforts, or such contracts after termination of voluntary benefits is appropriate. In such cases the true purpose of the contingent fee is fulfilled; it affords to the worker the services of counsel and produces the res out of which the fee can be paid. In cases such as the one here, the res is not or at least cannot be determined to have been the product of counsel's efforts. Further, a worker who is presently receiving RICKETT V. HAWKEYE BUILDING SUPPLY CO. Page 16 compensation payments may be quite capable of paying for the services of counsel whose job is not to create the right to payment, but simply to insure that the employer continues to comply with the act. Based upon the above and foregoing, it is evident that the fee contract which claimant seeks to fulfill by partial commutation is void as a matter of public policy and should not be enforced. Consequently, claimant's application for partial commutation to pay attorney fees is denied. As in Wunschel, however, counsel's fee contract is not invalid because of illegality of services, but because on policy grounds the manner in which the fee is to be calculated cannot be approved. Counsel did perform valuable services for the claimant for which he is entitled to be compensated. Counsel has every right to seek approval of a reasonable fee on a quantum merit basis. See Lawrence v. Tschirgi, 244 Iowa at 399-400, 57 N.W.2d at 53. Signed and filed this 5th day of February, 1987 STEVEN E. ORT DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Gary L. Johansen Attorney at Law 508 Davidson Building Sioux City, Iowa 51101 Mr. Melvin C. Hansen Attorney at Law 800 Exchange Building 1905 Harney Street Omaha, Nebraska 68102 1001; 1001.10; 3303.20 FILED: February 5, 1987 STEVEN E. ORT _________________________________________________________________ BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD RICKETT, Claimant, VS. HAWKEYE BUILDING SUPPLY CO., File No. 739306 Employer, D E C I S I 0 N and 0 N U.S. INSURANCE GROUP, R E H E A R I N G Insurance Carrier, Defendants. _________________________________________________________________ 1001; 1001.10; 3303.20 This was a decision on rehearing to establish that attorney fee that claimant sought to have paid with partial commutation was a reasonable fee. Attorney fee contract was entered into while claimant was receiving payments under 86.13 but without admission of liability. Attorney fee contract called for claimant to pay one-third of his benefits to claimant and "final disposition." Held: Attorney fee contract in question held void as a matter of public policy. Such contracts create "differing interests" between attorney and client. Further, such contracts permit counsel to obtain contingent proprietary interest in present property of claimant which rests upon litigation or settlement which may be wholly unnecessary for claimant's benefit and lead to unwarranted litigation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANK N. DEWEIN, Claimant, FRUEHAUF CORPORATION, Employer, File No. 740495 and A R B I T R A T I 0 N CNA INSURANCE COMPANY, D E C I S I 0 N Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Frank N. Dewein, claimant, against Fruehauf Corporation, employer, and CNA Insurance Company, insurance carrier and the Second Injury Fund of Iowa, defendants, for benefits as the result of an injury that occurred on August 2, 1983. On October 20, 1986,Deputy Industrial Commissioner Michael G. Trier granted the motion for summary judgment filed by employer and insurance carrier and awarded claimant 30 weeks of healing period benefits and 157.7 weeks of permanent partial disability benefits. Defendants, employer and insurance carrier, were eliminated from the case at that time. The sole remaining defendant is the Second Injury Fund of Iowa. A hearing was held in Burlington, Iowa, on October 15, 1987, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Howard E. Schubert, claimant's friend, Karen S. Kokjohn, claimant's stepdaughter, Richard Kokjohn, husband of claimant's stepdaughter, Frank N. Dewein, claimant and Joint Exhibits 1 through 14, with pages consecutively numbered from 1-84 and Defendant's Exhibit A. Both attorneys submitted excellent briefs. STIPULATIONS The parties stipulated to the following matters at the time of the hearing. That an employer-employee relationship existed between claimant and employer at the time of the injury on August 2, 1983. DEWEIN V. FRUEHAUF CORPORATION PAGE 2 That claimant did sustain an injury on August 2, 1983, that arose out of and in the course of employment with employer. That the rate of compensation, in the event of an award of benefits, is $232.27 per week. That since the motion for summary judgment was granted, eliminating employer and insurance carrier, for the reason that they had discharged their liability to claimant prior to hearing, then the remaining parties stipulated that causal connection, entitlement to weekly benefits from employer and insurance carrier, medical benefits and credit for workers compensation benefits paid prior to hearing were no longer an issue in this case at this time. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether the Second Injury Fund is liable to claimant for any benefits. If so, what is the proper formula for determining the liability of the Second Injury Fund of Iowa. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the evidence most pertinent to this decision. Claimant testified that he was born on January 15, 1922. He was 61 years old at the time of the injury and 65 years old at the time of the hearing. Claimant said that he graduated from high school in 1943. He served as a maintenance man in the military service working on tanks, trucks and jeeps. He farmed from 1946 to 1958. From 1958 to 1967 he ran a forklift for a machine tool company. Claimant started to work for employer in 1967. Claimant worked for employer approximately sixteen years until he injured his right hand on August 2, 1983. Claimant had previously injured his left hand on November 11, 1951, when he got his finger caught in a corn picker and severed a portion of his left index finger. At the time of this injury, claimant was moving rails. They shifted. This cut the belt holding them and they fell 12 feet hitting his right hand and cutting his right hand. Claimant described his injuries as follows. He cut the tendon in his little finger on the right hand. It is crooked, stiff and frozen. His ring finger on the right hand was reduced to slivers. It was reconstructed with clamps and screws. It is permanently bent and crooked. This knuckle was pushed down into his hand. The ring finger is frozen and immovable. His long finger is bent and broken. His index finger on the right hand is DEWEIN V. FRUEHAUF CORPORATION PAGE 3 straight, but it is stiff and frozen and does not bend. His right thumb has pins in it and is scarred. It bends a little bit but does not bend all the way to the palm. Claimant testified that he cannot grip anything with his right hand because his fingers are frozen in the same position ail of the time. There are two stainless steel plates in the back of his right hand with two screws at either end of each plate. He is able to bend his wrist. Claimant testified that prior to this injury he had a normal hand. He could not perform his job as a materials handler which involved operating a forklift and operating a crane. Claimant testified that he has not worked since the injury on August 2, 1983. Claimant testified that he could not perform his old job because he could not operate the levers on the forklift and his is not able to pick up materials with both hands. Claimant said that he cannot operate a crane. He.stated that he cannot move rails. Claimant said that he cannot pick up small objects with his right hand. Claimant admitted that he was offered a different job but he did not take it because he was afraid of getting hurt again. It was also his opinion that he could not do the job the way he wanted to do it. He felt that if he could not do the job satisfactorily then the company would put him on the line again, where he was injured in the first place. Claimant said his wife cuts his meat and buttons his shirt for him. He cannot shave with his right hand. Claimant testified that he has no feeling in his right hand on the top of the long finger, ring finger and little finger. Claimant testified that he has feeling in his right thumb and right index finger only. Claimant testified that his right hand is numb. He also testified that his fingers hurt. Claimant said that if his right hand gets cold it hurts and aches. If he bumps his fingers it feels like he has lost his whole hand. Claimant stated that his right hand, arm and shoulder are smaller than his left hand, arm and shoulder. He cannot vacuum, change the oil in his car, perform carpentry or lift objects with both hands. Claimant testified that he can no longer farm because farming requires the use of both hands. Claimant testified that his right hand prevents him from working in any capacity. Claimant denied that he had already decided to retire prior to this injury. He admitted that he had considered retiring, but he had not decided to do it yet. Claimant admitted to defendant's counsel that in an earlier deposition he did state that he had planned to retire prior to the injury when he became age 62 in January of 1984. Claimant further conceded that he did, infact, retire from employer when he was released by the doctor in June of 1984. Claimant acknowledged that after the injury he has made some furniture (chairs) for his children. He has used a saw, sandpaper and a hand drill. He can drive the car left handed. He can operate a riding mower and garden. He operated a Rototiller left handed. Claimant stated that he can walk, stand and bend. He was not fired by employer. Employer did not ask him to leave. Claimant conceded that he was offered a job in shipping and receiving which is not a line position. Claimant stated that he did not know the duties of this job and he did not ask or try to find out what they were. Claimant admitted that this job was at the same rate of pay and involved no demotion. Claimant granted that employer apparently thought he could do DEWEIN V. FRUEHAUF CORPORATION PAGE 4 this job and was willing to pay him for it. Claimant admitted that in his earlier deposition he agreed that this job in shipping and receiving was not a demotion, it did not involve a cut in pay and that it was easier to do because it was not on the line. Defendant's exhibit A contains claimant's application for retirement dated May 7, 1984, to be effective June 1, 1984. Claimant is to receive a life annuity of $97.57 per month. Claimant stated that he also receives social security benefits. Claimant admitted that he has not looked for work of any kind since he retired. D. Mackenzie, M.D., an orthopedic surgeon, rated claimant's impairment. He determined that claimant received an 83 percent permanent functional impairment of the right hand which converts to a 70 percent impairment of the upper extremity and 45 percent of the body as a whole. He determined that claimant received a 30 percent permanent and functional impairment of the left hand which translates to 27 percent of the upper extremity and 16 percent of the body as a whole. Dr. Mackenzie then added 45 percent and 16 percent and arrived at a total whole body impairment of 61 percent. He stated that he based his rating upon the American Medical Association's Guides to the Evaluation of Permanent Impairment, second edition. Dr. Mackenzie stated that the terminal phalanx of the left thumb was missing. However, claimant demonstrated at the hearing that his left thumb was intact. It was the terminal portion of his left index finger that was missing (Ex. 1, p. l). Howard E. Schubert testified that he is a 40 year friend of claimant. He said that prior to this injury in 1973, claimant could do everything he wanted, but after the injury he could not grip with his hand like he used to. Since the injury claimant cannot run machines, pound nails, saw wood, push a mower or pick chickens. However, claimant does work at making furniture, operates a riding mower and does some garden work but he cannot hoe or rake. Karen Sue Kokjohn testified that claimant is her stepfather. She has known him for 11 years. Before the injury he could do anything he wanted to do. Since the injury he cannot cut his own meat at dinner, hold small screws or change the oil in his car. He has no pressure in his right hand and cannot hold things or grip things. She sees claimant about once every week or once every two weeks. He is usually sitting down and is not active when she sees him. Richard Kokjohn testified that he is the husband of claimant's stepdaughter. He has known claimant since before and after the injury. Prior to this injury claimant lived a normal active life and did whatever he wanted to do including carpentry work. After the injury, claimant could not cut wood with a chain saw, cut meat or eat with his right hand. The witness helped claimant move and all claimant could do was hold doors and carry small boxes. Claimant opens his car door with his left hand. He can no longer change the oil in his car, but hires his boys to do it. Claimant can operate the riding mower and he can push the regular mower with his left hand. He cannot use.tools which DEWEIN V. FRUEHAUF CORPORATION PAGE 5 require the use of both hands., He cannot hold a cup or a glass with his right hand. Claimant did use a table saw to fix his house and he can put clothes in the washer. The witness stated that he observes claimant about five or six hours a week. APPLICABLE LAW AND ANALYSIS The sole question for determination in this case is, whether the Second Injury Fund of Iowa is liable to claimant for any benefits pursuant to Iowa Code 85.64. Included within this question is the proper formula in determining the liability of the Second Injury Fund, if it is determined that the Second Injury Fund of Iowa is liable for benefits. First, it is necessary to determine whether the second injury is limited to a scheduled member or whether it extends to the body as a whole. Reviewing the record in this case, there is no evidence that the injury extends beyond the scheduled member to the body as a whole. Claimant makes no argument that the injury extends beyond the scheduled member of the right hand. Therefore, it is determined that the second injury is limited to the scheduled member of the right hand. Second, since the injury is limited to a scheduled member, then the proper formula to determine the liability of the Second Injury Fund is as follows: (1) from the industrial disability resulting from the combined effects of both the first and second injury; (2) subtract the impairment value of the first injury; (3) subtract the impairment value of the second injury and (4) the resulting figure is the liability of the Second Injury Fund of Iowa. Iowa Code section 85.64, Fulton v. Jimmy Dean Meat Company, file no. 755039, appeal decision, July 23, 1986; Minor v. Swift Independent Pack Co. file nos. 392749 & 674301, appeal decision, October 31, 1986; Second Injury Fund of Iowa v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979). The argument of the Second Injury Fund of Iowa that the industrial disability from the second injury must be subtracted from the overall industrial disability resulting from the combined effects of both the first and second injury is incorrect. The industrial commissioner distinguished the Mich Coal decision in Fulton and Minor. It is determined that the Second Injury Fund is liable for the industrial disability caused by the combined effects of both the first and second injury minus the impairment value of the first injury and minus the impairment value of the second injury. The industrial disability from the combined effects of both injuries is the next item to be considered. 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." DEWEIN V. FRUEHAUF CORPORATION PAGE 6 Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). The operative phrase in industrial disability is loss of earning capacity. Ver Steegh v. Rolscreen, IV Iowa Industrial Commissioner Report 377 (1984). Dr. Mackenzie erred by stating that claimant was missing the terminal phalanx of his left thumb. Claimant demonstrated in the court room that his left thumb was intact but that he had lost the terminal portion of his left index finger. Whether this affects Dr. Mackenzie's determination that claimant sustained a 30 percent permanent functional impairment of the left hand cannot be independently determined because Dr. Mackenzie did not supply the basic data on how he arrived at his 30 percent figure. Nevertheless, the 30 percent permanent functional impairment rating for the left hand stands as the only evidence of impairment to that member in this case. Defendant apparently chose not to obtain and introduce into evidence an independent impairment evaluation from a doctor of their own choosing. Therefore, it is determined that the only evidence of the permanent impairment to the left hand is Dr. Mackenzie's evaluation. Therefore, it is determined that claimant sustained a 30 percent permanent impairment to his left hand from the first injury when his left hand was caught in the corn picker. It would appear Dr. Mackenzie erred in his paperwork because he could plainly see which digit was amputated. It is true that 30 percent of the hand converts to 27 percent of the upper extremity which in turn converts to 16 percent of the body as a whole. Table nine, page 10 and table 20 page 23, AMA Guides, second edition. It is not true that 83 percent of the right hand converts to 70 percent of the upper extremity. Rather, 83 percent of the right hand converts to 75 percent of the right upper extremity which in turn does convert to 45 percent of the body as a whole. Table nine, page 10 and table 20, page 23, AMA Guides, second edition. It is not true that 45 percent and 16 percent yield a whole body impairment of 61 percent which Dr. Mackenzie arrived at by adding the two numbers together. Rather, 45 percent is to be combined with 16 percent on the combined values chart found at page 240 of the AMA Guides second edition, and this results in a 54 percent impairment of the body as a whole. Therefore, it is determined that claimant's overall permanent, functional impairment is 54 percent of the body as a whole. Claimant, Shubert, and the two Kokjohns testified that after the first injury and before the second injury, claimant could do everything that he wanted to do in spite of the injury to his left hand from the corn picker. Furthermore, claimant performed his job for employer for approximately 16 years without any apparent adverse effect. Therefore, industrial disability, that is loss of earning capacity, from the first injury is not large. DEWEIN V. FRUEHAUF CORPORATION PAGE 7 There is evidence of a large amount of industrial disability as a result of the second injury to the right hand. First of all, an impairment of 83 percent of the right hand is a large amount of impairment. Second, claimant's description of the resulting disability is born out by all of the medical evidence. Claimant testified that the back of his fingers and hand are numb and that they hurt. His middle finger, ring ringer and little finger on the right hand are frozen stiff and immobilized. He is not able to use these fingers at all. He has two metal plates in the back of his hand with metal screws in either end of both plates. His thumb will not bend down and touch the palm of his hand. He cannot operate a forklift, crane or move rails with both hands. He cannot pick up small objects with his right hand. He cannot cut meat or eat with his right hand. Claimant cannot shave with his right hand. Claimant's right hand is extra sensitive to cold temperatures, eliminating most out-of-doors employments. If he bumps his fingers it causes severe pain in his right hand. Claimant did not believe that he could perform carpentry or farm due to the condition of his right hand. This testimony is reasonable, credible and probably true. At the same time, it is not possible to ascertain the upper limits of claimant's disability because he has never tried to work again. Defendant proved that claimant had planned to retire in January of 1984, when he became age 62 even before he was injured on August 2, 1983. Claimant did, in fact, retire when he was released from the doctor in June of 1984. Claimant retired even though he was offered a job at the same pay with no demotion by the same employer in the shipping and receiving department. DEWEIN V. FRUEHAUF CORPORATION PAGE 8 Since claimant made no showing of an effort to perform this job or to perform any other employment, there is no showing of what claimant can or cannot do within the boundaries of his disability. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). At the same time, a substantial impairment implied a substantial loss of earning capacity. At the same time, claimant is credible and has proven that he cannot perform his old job as a materials handler operating a forklift and a crane and moving rails. Therefore, the work which claimant performed for the machine tool company for nine years from 1958 to 1967 and the work that claimant performed for this employer for approximately 16 years from 1967 to 1983, is now foreclosed to him. It would also appear.that farming and carpentry are largely foreclosed to claimant. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 219 (1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1981). Claimant has a high school education but no additional education or training after that. At age 65 it is not likely that claimant can be retrained. At the same time, the fact that claimant was at retirement age and had planned to retire is a factor which is taken into consideration in the determination of industrial disability. The approaching of later years, when it can be anticipated that, under normal circumstances, a worker would be retiring is, without some clear indication to the contrary, a factor which can be considered in determining a loss of earning capacity or industrial disability which is causally related to the injury. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34, 36 (1979). At the same time, many retirees go into second employments and many of these employments are foreclosed to claimant. The fact that employer offered claimant a job at the same pay with no demotion is some indication that claimant has retained a substantial portion of his earning capacity. At the same time, a loss of earning capacity can occur without a loss in actual earnings. Larson, Workmen's Compensation Law, section 57.21(c), page 10-101 and section 57.21(d), page 10-113 and 10-125. Counsel for the Second Injury Fund has correctly pointed out that there are many things that claimant is able to do, such as, make childrens' furniture, use a table saw, sand paper and a hand drill, operate a riding mower, push a regular lawn mower with his left hand, drive an automobile, help with the housework at home, maintain a garden to include operating a Rototiller with his left hand, and that he can walk, stand, bend over and do many things which do not involve the use of his right hand. With respect to claimant's planned retirement, the Workers' Compensation Act is intended to compensate individuals for a loss of earning capacity because of work-related injuries, but not for a loss of earning capacity because of a career choice. McCarty v. DeKalb Pfizer Genetics, Inc., file no. 471633, appeal decision filed September 12, 1986. A plan to retire must certainly be considered as a career choice. Claimant is precluded from many manual labor type of jobs. DEWEIN V. FRUEHAUF CORPORATION PAGE 9 Frequently these jobs are the easiest to get and quite often pay the highest amount of money for unskilled persons or persons who are no longer able to practice their skill. Industrial disability need not exceed functional impairment. Birmingham v. Firestone Tire and Rubber Co., II Iowa Industrial-, Commissioner Report 39 (1981). Industrial Disability can be equal to, less than or greater than functional impairment. Lawyer and Higg's, Iowa Worker's Compensation--Law & Practice, section 13-5, page 116 & 1987 supplement page 20. Based on the foregoing considerations and all of the factors which are used to determine industrial disability, it is determined that claimant has sustained a 45 percent industrial disability from the combined effects of the first and second injury pursuant to Iowa Code section 85.34(2)(u). A 45 percent industrial disability results in 225 weeks of benefits (500 x .45). The impairment value of the first injury to the lei.-t hand is determined to be 57 weeks (190 x .30) pursuant to Iowa Code section 85.34(2)(1). The impairment value of the second injury to the right hand is determined to be 157.7 weeks (190 x .83) pursuant to Iowa Code section 85.34(2)(1). Claimant's entitlement to Second Injury Fund benefits and the liability of the Second Injury Fund to claimant is determined to be 10.3 weeks of benefits (225 weeks minus 57 weeks minus 157.7 weeks equals 10.3 weeks). The parties stipulated that the proper rate of compensation is $232.27 per week. Claimant's entitlement to Second Injury Fund benefits then is 10.3 weeks x $232.27 per week in the total amount of $2,392.38. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant sustained a serious injury to his right hand on August 2, 1983, while employed by employer. That the long finger, ring finger and little finger on claimant's right hand are totally immobilized. That the back of claimant's right hand contains two steel plates with two screws at either end of both plates. That the back of claimant's right hand and fingers are numb and painful. That claimant's right hand is susceptible to cold temperatures. That claimant cannot use his right hand to operate a forklift, crane or move rails with both hands. DEWEIN V. FRUEHAUF CORPORATION PAGE 10 That claimant sustained an 83 percent permanent impairment to his right hand which converts to 75 percent of the upper extremity and 45 percent of the body as a whole. That claimant sustained a 30 percent permanent impairment of his left hand which converts to 27 percent of the upper extremity and 16 percent of the body as a whole. That claimant's combined permanent impairment to the body as a whole is 54 percent of the body as a whole. That claimant was offered a job that was believed to be within his physical capabilities in the shipping and receiving department; however, claimant chose not to attempt to do this job but rather chose instead to retire from his employment with this employer. That there is evidence that claimant intended to retire in January of 1984, when he became 62 years of age, even before this injury occurred on August 2, 1983. That the second injury to claimant's left hand is a scheduled member injury and does not extend to the body as a whole. That claimant sustained an industrial disability of 45 percent of the body as a whole. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence present and the principles of law previously discussed, the following conclusions of law are made. That claimant is entitled to 225 weeks of permanent partial disability benefits from the combined effects of both the first and second injury. That the impairment value of the first injury to the left hand is 57 weeks based upon a permanent impairment of 30 percent of the left hand. That.the impairment value of the second injury to the right hand is 157.7 weeks based upon an 83 percent permanent impairment of the right hand. That the liability of the Second Injury Fund is 10.3 weeks of benefits pursuant to Iowa Code section 85.64. That the commencement date for Second Injury Fund benefits is April 21, 1987. ORDER THEREFORE, IT IS ORDERED: That defendant, Second Injury Fund of Iowa, pay to claimant ten point three (10.3) weeks of Second Injury Fund benefits at the rate of two hundred thirty-two and 27/100 dollars ($232.27) per week in the total amount of two thousand three hundred DEWEIN V. FRUEHAUF CORPORATION PAGE 11 ninety-two and 38/100 dollars ($2,392.38). That this amount is to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action are charged to defendant, Second Injury Fund of Iowa, pursuant to Division of Industrial Services Rule 343-4.33. That defendant, Second Injury Fund of Iowa, file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of October, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James P. Hoffman Attorney at Law Middle Road Keokuk, Iowa 52632 Mr. Greg Knoploh Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 3201; 3202; 3203 Filed October 27, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANK N. DEWEIN, Claimant, FRUEHAUF CORPORATION, Employer, File No. 740495 and A R B I T R A T I O N CNA INSURANCE COMPANY, D E C I S I 0 N Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 3201; 3202; 3203 Second Injury Fund of Iowa found liable for 10.3 weeks of permanent partial disability. Fulton v. Jimmy Dean Meat, and Minor v. Swift Independent Packing, formula applied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JACOB O. BEEH, Claimant, File No. 741202 VS. MILLER ICE CREAM COMPANY, C O M M U T A T I O N Employer, and D E C I S I O N BITUMINOUS INSURANCE COMPANIES, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding for full commutation of all remaining periodic benefits brought by the claimant pursuant to Code sections 85.45 and 85.47. The petition also requests that section 85.27 benefits be maintained even though a full commutation is requested. ISSUE The only issue to be determined is whether or not it is in claimant's best interest to grant the commutation that has been requested. STATEMENT OF THE CASE This case follows from two previous decisions issued by the undersigned. The first, filed January 24, 1986, found claimant to have sustained injury on August 11, 1983 which was a proximate cause of his disability and awarded weekly healing period compensation benefits. That decision also determined that medical care, which claimant had received under the direction of John R. Walker, M.D., was unauthorized within the meaning of Code section 85.27 and that defendants were therefore not responsible for payment of those expenses. A subsequent decision, filed November 17, 1986, awarded claimant permanent total disability benefits. Both prior decisions were not appealed and became final agency decisions. Both prior decisions are incorporated herein by this express reference. Material facts which have been established in the previous decisions include the following: Jacob 0. Beeh is a 33-year-old married man with three dependent sons, two of which are of preschool age. Claimant is BEEH V. MILLER ICE CREAM COMPANY Page 2 severely limited in his ability to walk, stand, sit, read, concentrate, bend, squat, kneel, climb, reach, push, pull and carry. His memory is impaired. He experiences continuing pain of a degree that is so substantial as to interfere with his ability to perform physical and mental tasks. Claimant exhibits a speech defect and does not communicate well. He has a physical impairment in the range of 70% of the body as a whole. Defendants were not held responsible for paying certain medical expenses incurred by claimant which totaled in excess of $20,000. At the commutation hearing, claimant testified that, when he chose to seek out medical care on his own, he did so with the knowledge that there was a risk the insurance carrier would not be responsible for payment of the expenses he incurred. Claimant testified that Blue Cross/Blue Shield has paid some of those expenses, but that a balance of approximately $3,446.38 remains unpaid. Claimant testified that he also has received a notice that the total amount remaining unpaid on the medical expenses is $10,302.56. Claimant did not introduce evidence which appeared to be sufficiently reliable to determine the actual amount of medical expenses which remain unpaid. Claimant testified that, while the litigation in this case has been pending, he incurred a debt with the Peoples' State Bank in Elkader, Iowa, in the amount of $2,300 and that he had incurred a debt in the amount of $10,200 with the Union Bank at Strawberry Point, Iowa, prior to the time of his accident. Claimant related that he also owes $700 to Montgomery Ward and $500 to his brother and father. Claimant testified that he has been awarded social BEEH V. MILLER ICE CREAM COMPANY Page 3 security disability benefits which he believes provide an entitlement of somewhere in the range of $780 or $790 per month before any reduction or offset for workers' compensation benefits. Claimant also testified that the portion of workers' compensation benefits which are used to pay medical and legal fees do not reduce the social security benefit. The actual amount of claimant's medical expenses was not established with any reasonable degree of certainty. The amount of claimant's social security disability benefits and/or the offset that would be appropriate was likewise not established with any reasonable degree of certainty. The petition also alleges that claimant owes legal fees of approximately $28,000 which he desires to pay. Claimant testified that he received a lump sum workers' compensation payment for past due benefits in the amount of approximately $15,000 and that he used all of it to pay medical bills, attorney fees and his bank debts. Claimant related that, up to the time of hearing, he has not received a single dime for his own use from the workers' compensation benefits and that all benefits have been applied to his medical bills and legal fees. Claimant testified that the largest amount of money that he has ever had was $18,000, which he had approximately 10 years ago. He related that he invested it in farming and lost his investment. Claimant testified that, presently, he is broke and has no money. He testified that, if he receives the full commutation, he will still be able to get by on "nickel and dime" as he has done for the last four years. He stated that his Blue Cross/ Blue Shield medical insurance costs $380 per month and that the medication he takes for his seizures has more than doubled in BEEH V. MILLER ICE CREAM COMPANY Page 4 cost. Claimant's only sources of income are workers' compensation benefits and social security disability. Claimant testified that, if the commutation was granted, he would pay off his bills with the banks and medical service providers. He testified that, after doing so, he would have approximately $35,000 remaining and that he would use part of those funds to purchase a home at a cost which he estimated to run from $10,000 to $30,000. He stated he would place the rest of it in a safe investment. Claimant felt that, if he was debt free, it would take $900-$1,000 per month for him and his family to live. Claimant is adamantly opposed to any relief under the bankruptcy laws or to any other action to avoid full payment of his bank debts, medical bills or other debts. Claimant expressed concern for what might happen if he should die prematurely. He indicated it was his understanding that workers' compensation benefits would terminate, unless it could be established that his death resulted from the injuries sustained in the accident of August 11, 1983. He testified that he has attempted to purchase life insurance, but is unable to do so and that he does not have money to pay the premium, even if the insurance was available to him. Connie Beeh, claimant's wife, testified that she feels a commutation would be in their best interests because it would get rid of the headache of the bills. She desires to have a home of their own in which to live and is also concerned about the problems if Jacob should die. Mrs. Beeh related she is 26 years of age, healthy, capable of working and willing to work. She indicated that their oldest child will soon be in the BEEH V. MILLER ICE CREAM COMPANY Page 5 first grade. Mrs. Beeh would also like to have the security of a home. Fred Abraham, an associate professor of economics at the University of Northern Iowa, testified that, in his opinion, it is not in claimant's best economic interest to have a commutation and that such would be true even if claimant should survive for only one-half of his normal life expectancy. APPLICABLE LAW AND ANALYSIS First and foremost, claimant seeks a full commutation which also keeps the section 85.27 benefits available to him. While the parties could contractually enter into such an arrangement, the law of this state does not permit the undersigned to compel it. (Code section 85.47). Clearly, it is not legally possible to grant claimant the relief that he requests in his petition. When the commutation is ordered, the industrial commissioner shall fix the lump sum to be paid at an amount which will equal the total sum of the probable future payments capitalized at their present value and upon the basis of interest at the rate provided in section 535.3 for court judgments and decrees. Upon the payment of such amount the employer shall be discharged from all further liability on account of the injury or death, and be entitled to a duly executed release, upon filed which the liability of the employer under any agreement, award, finding, or judgment shall be discharged of record. (Code section 85.47). Even if the law did permit a full commutation without loss of future section 85.27 benefits, the standard for whether or not a commutation should be granted is the best interest of the person entitled to the compensation. (Code section 85.45(2); Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 (Iowa 1983); Diamond v. Parsons Co.,256 Iowa 915, 129 N.W.2d 608 (1964). A benefit-detriment analysis must be made. Workers' compensation benefits are exempt from garnishment, attachment and execution. (Code section 627.13). Exemption statutes exist to protect debtors and their families from deprivation of those things essential for sustaining life. In Re Bagnall's Guardianship, 238 Iowa 905, 29 N.W.2d 597 (Iowa 1947). The reason the exemption statute exists is in order to prevent those who are dependent upon disability compensation from being made destitute as a result of creditors enforcing payment of debts. The exemption statutes were designed to prevent what has happened with the Beeh family in this case. Namely, creditors have been given a priority higher than that of the family itself. Claimant made it clear that he has more regard for his creditors than he apparently has for his family. Clearly, the creditors are in business and expect some uncollectible accounts. The creditors are not dependent upon any single individual for their continued livelihood. The Beeh family, however, has only one source upon which it can rely for its livelihood, namely, the disability benefits provided by BEEH V. MILLER ICE CREAM COMPANY Page 6 social security and workers' compensation. If those benefits were commuted and used unwisely, the family would be destitute. Claimant refused to use the authorized physicians provided in this case by the insurance carrier and employer. Instead, he knowingly incurred many thousands of dollars in medical expenses from an unauthorized source. It appears from the record that he did so on his own with full knowledge that it was very probable the workers' compensation insurance carrier would not be held liable for payment of those expenses. The circumstances that existed at the time were such that services of the University of Iowa Hospitals and Clinics were being offered to claimant, yet he went elsewhere. He presumably did so contrary to the recommendations of his attorney, since it was quite clear,at the time that the employer and insurance carrier were fulfilling their statutory obligation of providing reasonable care. The facilities and physicians at the University of Iowa Hospitals and Clinics are well regarded and often utilized as the care of choice by many individuals. Claimant's conduct in acting contrary to the recommendations of his attorney by going to Dr. Walker was clearly rash and reckless conduct, engaged in without apparent regard for the quite foreseeable economic impact it would have upon him. Such conduct is indicative of a lack of sound judgment and a lack of proper appreciation for serious economic matters. It indicates that claimant could not be expected to do a good job of conserving resources, if a commutation was awarded. Further, claimant's adamant refusal to seek any type of debt adjustment through bankruptcy or otherwise and his actual waiver of the exempt status of the workers' compensation benefits that have been paid is likewise an indication that claimant could not be relied upon to conserve the resources which would result from a commutation. In fact, he has indicated that he would not conserve them, but rather would use them to pay debts which could not lawfully be enforced against him, all to the detriment of his family. It appears that Blue Cross/Blue Shield has paid part of claimant's medical expenses. The record is silent with regard to whether or not the providers of the medical services were subscribers to the Blue Cross/Blue Shield program. If they were, they are, of course, limited to recovering fees equal to the usual customary charges for the services, even though they may, in fact, actually bill a higher amount. The record is silent with regard to whether or not claimant seeks to pay medical bills in excess of the usual and customary charges for the services which he received. The undersigned takes official notice, however, that it is a common practice in the medical profession to charge in excess of the usual and customary charge in order to provide a basis for increasing the usual and customary charge in future years, even though the physician has no intent of attempting to enforce payment of the excess if the patient refuses to pay it. Since approximately $10,000 of claimant's medical expenses was not paid by Blue Cross/Blue Shield, it would appear that, even under an 80-20 type of insurance plan, an amount more than 20% of the total medical charges is still being billed to claimant. It would not be in claimant's best interest to commute his workers' compensation benefits in order to pay medical bills which are in excess of the usual and customary charges and which, in any event, would not otherwise be enforced BEEH V. MILLER ICE CREAM COMPANY Page 7 against him. Of additional concern is the relationship of the workers' compensation benefits to the social security disability benefits. The record is again essentially silent with regard to what the outcome will be if a full or partial commutation was entered. Under some circumstances, it is possible to arrange matters in such a way as to lawfully and properly avoid a major portion of the social security offset, however, no showing of any such arrangement or plan was made in this case. In the absence of such, it cannot be determined that it would be in claimant's best interest to commute his workers' compensation benefits since the impact upon the social security benefits is not shown in the record. Finally, it is true that there is some risk of termination of benefits should claimant die prematurely. The evidence, however, does not show that risk to be so severe as to offset the other factors which indicate against granting a full commutation, even if the loss of section 85.27 benefits could somehow be avoided. Claimant is still under medical care. It would not be in his best interest to grant a full commutation and extinguish his right to employer-paid medical care in the future. In summary, it is found that a full commutation would not be in claimant's best interest. While he cannot be prevented from making a series of periodic waivers of the exempt nature of his compensation benefits as they are paid to him, he can be effectively prevented from irrevocably waiving that exemption as he could do if a full commutation was awarded. Should that happen, he would be without future medical care and without any future recourse against the employer and insurance carrier. The undersigned would favorably consider, in this case, a partial commutation in order to purchase a home for the Beeh family, but only under such terms and conditions as would make it impossible for claimant to either directly or indirectly avoid the transaction and pay the commuted funds to one of his creditors. Such an arrangement would have to make it impossible for claimant to purchase the home and then sell it in order to obtain funds to pay creditors. Extraordinary safeguarding of the assets would be required. FINDINGS OF FACT 1. It is not in claimant's best interest, nor is it in the best interest of his family, to grant a full commutation. 2. It would be in claimant's best interest, and in the best interest of his family, to grant a partial commutation to enable them to purchase a home if sufficient safeguards could be employed to make it impossible for claimant to misappropriate the commuted funds to payment of those debts which could not otherwise be enforced against him and also to prevent him from converting the home, if purchased, to cash and using the funds to satisfy those debts which could not otherwise be enforced against him. 3. Claimant has demonstrated a lack of sound judgment in BEEH V. MILLER ICE CREAM COMPANY Page 8 dealing with matters of serious financial consequence. CONCLUSIONS OF LAW 1. If a full commutation is granted, all right to future benefits under the provisions of Code section 85.27 is extinguished. 2. The burden is on the claimant to show that a full commutation is in his best interest. 3. Even if a full commutation did not cause the loss of future section 85.27 benefits, a full commutation should not be granted since it would not be in the best interest of claimant or his family. 4. While payment of just debts is an admirable goal, such a goal should not be given a higher priority than the goal of providing support and sustenance for a totally disabled worker and his family. ORDER IT IS THEREFORE ORDERED that the petition for full commutation be and hereby is denied. IT IS FURTHER ORDERED that each party pay its own costs incurred in litigating this matter. Signed and filed this 29th day of December, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. E. Michael Carr Attorney at Law 117 South Franklin Street P.O. Box 333 Manchester, Iowa 52057 Mr. Bruce L. Gettman, Jr. Mr. James E. Walsh, Jr. Attorneys at Law River Plaza Building 10 West Fourth Street Waterloo, Iowa 50704 2501, 2503, 3303.10 Filed December 29, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JACOB 0. BEEH, Claimant, File No. 741202 VS. MILLER ICE CREAM COMPANY, C 0 M M U T A T I 0 N Employer, and D E C I S I 0 N BITUMINOUS INSURANCE COMPANIES, Insurance Carrier, Defendants. 2501, 2503, 3303.10 Claimant, who is permanently and totally disabled, sought a full commutation in order to pay medical expenses which were unauthorized and also to pay other debts which he had incurred. In his petition, claimant sought a full commutation which, however, would retain his right to section 85.27 benefits. HELD: A full commutation extinguishes section 85.27 benefits and it would not be in the claimant's best interest to extinguish those benefits since he is continuing under active medical care. It was further held that claimant had failed to show it was in his best interest to commute the benefits, even if section 85.27 benefits could somehow be preserved. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM MORAN, Claimant, File Nos. 741350 vs. 817067 855485 SUPER VALU STORES, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and F I L E D LIBERTY MUTUAL INSURANCE CO., TRAVELERS INSURANCE COMPANY, DEC 29 1989 Insurance Carriers, INDUSTRIAL SERVICES Defendants. STATEMENT OF THE CASE These are proceedings in arbitration brought by claimant William Moran against defendant employer Super Valu Stores and defendant insurance carriers Travelers Insurance Company (741350) and Liberty Mutual Insurance Company (855485 and 817067) as the result of injuries allegedly sustained on August 8, 1983 (741350), May 8, 1985 (855485, as amended) and February 18, 1986 (817067). This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa, on August 8, 1988. The matter was considered fully submitted at the close of hearing. All parties subsequently filed briefs. The record in this proceeding consists of joint exhibits 1 through 25, defendants' exhibit A, and the testimony of the following witnesses: Claimant, Charles Schwab and Kelly O'Neill. ISSUES Pursuant to the prehearing report submitted by the parties and approved by the deputy, the following matters have been stipulated in file number 741350: That an employment relationship existed at the time of the alleged injury; that claimant sustained an injury on August 8, 1983, arising out of and in the course of that employment; that the injury caused both temporary and permanent disability; that the rate of weekly compensation is $296.26; that affirmative defenses are waived; that medical benefits are no longer in dispute; that Travelers Insurance Company provided coverage to defendant employer until March 1, 1984, and defendant Liberty Mutual Insurance Company provided coverage thereafter. Issues presented for resolution in file number 741350 include: The extent of claimant's entitlement to healing period/temporary total disability and permanent partial disability benefits; the type of permanent disability if the injury is found to have caused the same; the commencement date for permanent partial disability; the extent to which defendant Travelers Insurance Company is entitled to credit for compensation paid voluntarily prior to hearing. In cases 817067 and 855485, the following issues have been stipulated: That an employment relationship existed between claimant and employer at the time of the alleged injuries; that for both injuries, the appropriate rate of weekly compensation is $310.01; that affirmative defenses are waived; that medical benefits are no longer in dispute; that Liberty Mutual Insurance Company had coverage subsequent to March 1, 1984. Issues presented for resolution in cases 817067 and 855485 include: Whether claimant sustained injuries on May 8, 1985 and/or February 18, 1986, arising out of and in the course of employment; whether those injuries caused temporary or permanent disability; the extent of claimant's entitlement to healing period/temporary total disability or permanent partial disability and the commencement dates thereof; whether claimant's injuries are scheduled member disabilities or industrial disability to the body as a whole; credit for benefits paid. In addition, the parties have stipulated that no party desires taxation of costs. REVIEW OF THE EVIDENCE Claimant testified that he was born on May 13, 1930, and was 58 years old at the time of hearing. He graduated from high school in 1948 as a "C" student. Claimant testified that his work history included manual labor and construction work and trucking in 1948 through 1950, a stint in the United States Air Force from 1950 to 1954 (working on jet engines and as a records clerk), working with his father as a farmer and in an implement business from 1954 until 1960 or so, working as a laborer and machine operator for John Deere from 1960 until approximately 1966, farming from 1966 for two to three years, and beginning employment with defendant Super Valu Stores in 1969. Claimant testified that he pulled back muscles while employed with John Deere, but did not consider that a problem. He suffered from polio centered in his neck in 1947, but indicated that he notices no permanent effects resulting from the disease. In general, claimant testified that he enjoyed good health at the time he began employment with defendant Super Valu Stores. Claimant performed several duties for defendant during his lengthy tenure. He worked as a grocery order filler in the warehouse, which involved lifting and bending (putting cases of grocery items on pallets), as a loading dock employee (and loading trucks), as a boxcar unloader, as an order filler, and as a forklift operator until 1986. Claimant further testified that he suffered a number of injuries while employed with Super Valu Stores. He smashed a finger in March, 1971. He suffered a back injury resulting in surgery in September, 1974. He suffered a cut to his left elbow in April, 1979. Further, claimant suffered additional back injuries in September, 1977, January 1980, and April 1981. The 1974 and 1981 back injuries led to workers' compensation claims. Claimant is left-hand dominant. He testified that he suffered an injury on August 8, 1983 while steering a forklift truck. He indicated that he used his left hand to steer the truck with a circular motion at about waist level. The steering mechanism would "catch" at the end of its allotted travel. Claimant indicated that he reported his injury to his foreman immediately and was taken to Mercy Medical Center on the same day. Claimant eventually underwent rotator cuff surgery to his left shoulder in January and August, 1984. Claimant also testified to two further injuries, although he was somewhat vague and inconsistent as to what occurred on which date. Prior to May 8, 1985, claimant testified that his shoulder was still somewhat achy, but he reinjured it on that date while pulling on a pallet. Claimant further indicated that although his shoulder continued to cause him discomfort, he was capable of doing work up until February 18, 1986, when he reinjured the shoulder while picking up a box of cabbage or lettuce. However, claimant also indicated that the "cabbage" incident may have actually occurred on May 8, 1985. After being given a limited return to work by Kent M. Patrick, M.D., (not to lift over 15 pounds or over his shoulder), claimant worked on a temporary light duty program beginning March 1, 1986. However, claimant testified that he was discharged by defendant in anticipation of a strike, last working on approximately June 13, 1986. Claimant admitted that he has not sought further substantial employment since his last day working for defendant. However, he did have a temporary job dropping off newspapers at the time of hearing, earning only $13.45 per day. Claimant agreed that defendant employer had called him twice suggesting that he bid for jobs defendant considered within his limitations. Claimant's seniority number was approximately 103 as of June, 1986, which would have permitted him to successfully bid for at least some jobs. Defendant suggested in April, 1987, that he accept a position in the sanitation department. Claimant indicated that he refused the job because he would be required to lift his arms over his shoulder and reach, and because it would entail a 25 percent pay cut. Claimant was also alerted to a position as a third shift billing clerk in May, 1987, but he felt this would involve lifting papers to pigeonholes over his shoulder at a 25 percent pay cut; claimant conceded on cross-examination that he could perform the reaching over his shoulder portion of the job with his right hand, which is not impaired. Claimant also noted that he has approximately a one and one-fourth hour commute to Super Valu and that driving bothers his shoulder. Claimant testified that his shoulder did not bother him prior to 1983, but that it still hurts him now. For example, he is unable to cast for fish or hunt. On cross-examination, claimant conceded that he had turned down one position with Super Valu in the past because it involved working nights and weekends and he was concerned that this would interfere with his family relationships. However, he denied that this was currently a problem. Claimant also admitted that Dr. Patrick has advised him that he suffered arthritis in the past. He agreed that he has had continuing shoulder problems since his first injury, and stated that these appeared to be the "same" problems: inability to lift over his shoulder and loss of strength. Claimant also agreed that his back is currently a problem today and that he has,a permanent 30-pound lifting restriction by reason of a back surgery in 1977 or 1978. Claimant agreed that he now does some farm work, including tractor and garden tiller driving. He is experienced at such farm work. Claimant also agreed that he has a history of drug and alcohol abuse and that his arthritis has affected his hands and shoulder. However, he first learned of his arthritis subsequent to the August, 1983 injury. Charles Schwab testified that he is Super Valu warehouse manager, and has been for ten years. He agreed that claimant's seniority number in June, 1986 was 103. He testified that the warehouse maintains only two rates of pay, full pay and 75 percent of full pay for light duty jobs. Both types of positions provide fringe benefits at the full rate. Schwab testified that over the years there were a number of jobs that claimant could perform, and that although these were posted, claimant did not come in to bid. On cross-examination, Mr. Schwab agreed that all of the jobs required some use of the upper extremities and that jobs are bid on the basis of seniority; a successful bidder would still need the lowest seniority number to obtain a particular job. However, Schwab stated that workers maintain an informal procedure whereby workers may agree as to who should get a particular job, so that some might withdraw bids to help manipulate the process. Kelly O'Neill testified to job responsibilities that included labor relations and workers' compensation matters. O'Neill described the TAD or temporary alternative duty program as available to employees released for TAD following a work-related accident. This is for light duty work. Workers on the TAD program are paid $5.00 per hour, which is deducted from workers' compensation benefits until maximum medical improvement is reached. Once claimant had received such a rating, he was released from the program. Claimant was on that program from March 1, 1986 through July 5, 1986. Medical records in evidence indicate that claimant sustained a twisting injury to the lower back while unloading a boxcar in September, 1974, and underwent a laminectomy and discectomy by a Dr. Jack Auxter in January, 1975. Jerome G. Bashara, M.D., an orthopaedic surgeon, wrote on October 13, 1975 that claimant suffered from post-laminectomy syndrome but could return to a sedentary type of job which did not involve a significant amount of heavy bending, lifting, twisting or stooping. In a letter of December 29, 1975, Dr. Bashara stated that it was impossible to make a statement at that time as to the permanency of claimant's condition or his prognosis, recommended that claimant return to a sedentary type of activity and that a five percent total disability rating would be reasonable in view of his present symptoms. Richard H. Still, D.O., wrote on July 20, 1978 that claimant could return to work on a limited activity basis with the major restriction being a lifting limitation of 30 pounds. He concurred with Dr. Auxter's previous rating of claimant as having 25 percent permanent partial disability and believed that an incident of September 29, 1977 was a complicating factor of the original back injury. The records of John C. Tapp, D.O., at Mercy Medical Clinic show that claimant was seen on August 8, 1983 having "hurt back at work this afternoon--moving a pallet." Dr. Tapp prepared a surgeon's report indicating that claimant stated he was bent down on the right knee trying to pull a pallet from under a truck when a fellow worker called and he turned to the left while still pulling the pallet, suffering pain in the right lower back. Dr. Tapp described right low back strain and strain of left shoulder. He felt claimant should be able to resume work on August 23. Dr. Tapp's notes of August 11, 1983, showed that claimant still suffered a quite painful left shoulder at all times with stiffness in the left arm. Pain was increased with movement of the lumbosacral spine. Notes of August 18, 1983 show claimant's shoulder slightly better with good range of motion. Claimant also had quite improved range of motion of the lumbosacral spine. Notes of August 22, 1983 show the shoulder and lower back "some better" with improved range of motion, both in the spine and shoulder. Notes of August 24, 1983 indicate that claimant's back was better, except that it had begun hurting again while driving a forklift at work the night before. Claimant's shoulder felt "pretty good." The records of Marshall Flapan, M.D., reflect that claimant was seen on August 26, 1983. Claimant gave a history of attempting to pick up a pallet which was hooked under a rack on August 8, 1983, and that he sustained an injury to his low back and intrascapular area at that time. Dr. Flapan noted that the range of motion in the back was good, cervical spine motion was normal, but that claimant had some intrascapular pain and discomfort. Dr. Flapan further noted that claimant complained of occasional discomfort in the left index finger and thumb. Dr. Flapan's assessment was of acute lumbosacral strain with an intrascapular and cervical sprain secondary to the August 8 work injury and eight years post-lumbar laminectomy. Claimant was released to return to unrestricted duty on August 29, 1983 and Dr. Flapan believed that claimant had not sustained any permanent impairment. Dr. Flapan noted on September 12, 1983 that claimant had returned to work as suggested, but only lasted three and one-half hours before recurrence of discomfort in the upper back at the base of the neck with radiation to the left lower extremity. Although claimant had a full range of motion of the cervical spine, he complained of decreased sensation in the left index finger and thumb, which was confirmed with pinprick testing. Dr. Flapan had an assessment of cervical radicular compression syndrome and work-related cervical strain, finding claimant temporarily unable to work. Dr. Flapan reported on September 22, 1983 that claimant was continuing to suffer discomfort i:n the left intrascapular area with radiation to the left upper extremity and paresthesias in the left thumb and index finger. He objectively found range of motion of the shoulder good and decreased sensation in the index and long fingers to pinprick. Dr. Flapan continued to assess claimant as suffering a cervical radicular compression syndrome and noted that he had made a referral to neurosurgeon. Dr. Flapan saw claimant again on October 31, 1983 because of discomfort in the left shoulder. He noted that claimant had been receiving physical therapy and was then under the care of Stuart Winston, M.D., for cervical radicular compression syndrome. Dr. Flapan found full range of motion in the left shoulder with tenderness in the anterior aspect. His assessment, in addition to cervical radicular compression syndrome, was of left shoulder bursitis. Claimant's left shoulder was injected with Depo-Medrol and Lidocaine. Dr. Flapan saw claimant again on December 2, 1983. Claimant had responded well to the injection, but still continued to suffer some discomfort about the left shoulder. Dr. Flapan's assessment at that time was of revolving bursitis of the left shoulder, but ruling out rotator cuff tear. Claimant was to be sent to a hospital for an arthrogram of the left shoulder and to be seen again in one week. Dr. Flapan reported on December 9, 1983 that claimant did undergo the arthrogram and showed a leakage of dye into the subacromial bursa. His assessment at this time was of a left rotator cuff tear and the doctor arranged for surgical repair, eventually performed on January 4, 1984. The procedure was left rotator cuff repair with excision of the left coracoacromial ligament. Dr. Flapan thereafter reported seeing claimant for follow-up on January 16, February 17, and March 26, 1984. On the last visit, claimant's wounds were well healed, but he still had limitation of motion of the left shoulder. On April 23, 1984, Dr. Flapan reported that claimant had some limitation of internal rotation of the shoulder with discomfort, but claimant was released to return to work on April 29, 1984. Thereafter, Dr. Flapan reported on May 7, 1984 that claimant did return to work as directed, but was only able to continue until May 2 because of left shoulder irritation. He suggested that claimant return to work half-days and then progress to full activity. On May 31, Dr. Flapan reported that claimant still complained of shoulder soreness and that he advised claimant to stay off work until he was seen on June 4, 1984. On that date, claimant was released to return to work on a half-day basis. Claimant then had good range of motion of the shoulder, but with some slight limitation and tenderness present anteriorly. A chart note of June 25, 1984 appeared to ask Dr. Flapan whether claimant should stay off work until his July 2 appointment because his shoulder was bothering him, although he had returned to work. Dr. Flapan answered: "Not necessary." Dr. Flapan again reported seeing claimant on July 2, 1984. Claimant continued to have soreness in the left shoulder with good passive range of motion, but some limitation above abduction beyond 90 degrees. Claimant was released to continue working full-time without restrictions, but Dr. Flapan opined that claimant had sustained a permanent partial impairment to the left upper extremity of ten percent. Claimant was to be seen again in four months. Claimant was seen by Scott B. Neff, D.O., for his left shoulder on referral by defendant Travelers Insurance Company. He reported on July 3, 1984 that claimant had tenderness in the bicipital groove anteriorly on the shoulder and was able to actively abduct to 90 degrees, forward flex to 90 degrees, internally rotate to his back pocket and externally rotate to almost behind his neck. Claimant had crepitus in the shoulder. Dr. Neff reported that x-rays showed degenerative disease in the AC joint. He found claimant to suffer tenderness in the biceps tendon, the long head of that tendon passing through the shoulder joint beneath the rotator cuff. Dr. Neff recommended a repeat arthrogram of the left shoulder and consideration for further surgical exploration with resection of a significant part of the acromion and probably repositioning or transposition of the biceps tendon into the humeral notch. He noted that this would allow claimant to return to work with the arm at his side, but would give him persistent difficulty with reaching above his head repetitively. Dr. Neff reported further that claimant was seen on July 25, 1984, following another arthrogram. He found no leakage of dye, but believed the shoulder to be abnormal with soft tissue scarring in the area of the subacromial bursa and narrowing of the subacromial space. Dr. Neff believed claimant had an impingement syndrome, which he opined can certainly be worsened by the common result of scarring and thickening of the rotator cuff following surgical repair. He recommended further surgical exploration. Dr. Neff,performed further surgery on August 14, 1984. His surgical notes show that the bursa was inflamed and hypertrophied and it was resected. The cuff was thinned at the insertion of the greater tuberosity of the humerus, but there were no tears. The inferior and anterior aspects of the acromion were resected and the CA ligament was completely removed. Postoperative diagnosis was of impingement syndrome, left shoulder, with subacromial bursitis and thinning of the rotator cuff without a frank tear. Dr. Neff reported on October 10, 1984, in a letter to the Travelers that claimant was then able to abduct only to 70 degrees and rotation was limited externally and internally. He recommended a manipulation under anesthetic. Dr. Neff wrote the Travelers on November 19, 1984 to report that claimant was improving nicely, abducting to 120 degrees, forward flexing to 140 degrees, and having almost normal internal and external rotation, although some of that was scapulothoracic. He stated that claimant could return to work half time and should be restricted from full-time work for an additional two weeks. However, in a letter of the same date signed by Dr. Neff and Thomas W. Bower, L.P.T., the opinion was expressed that claimant had reached his maximum potential as far as recovery and full benefit of rehabilitation. In this letter, Dr. Neff reported that claimant had active range of motion of shoulder flexion 125 degrees, abduction 110 degrees, extension was full, external rotation was 50 degrees and internal rotation was 60 degrees. Dr. Neff expressed the opinion that claimant had suffered a 13 percent impairment of the left upper extremity, which he converted (because the impairment was in the shoulder) to an 8 percent permanent partial "disability" of the body as a whole. Dr. Neff did not feel that claimant's range of motion would change substantially in the future. However, Dr. Neff further reported on December 3, 1984, that claimant's range of motion in the left shoulder was improved. He was released to normal activity and his healing period "has essentially ended." He concurred with the rating of L.P.T. Bower of an 8 percent permanent partial "disability." Dr. Neff reported on January 28, 1985, that claimant had been seen again. Claimant was not complaining of pain in his left shoulder, but was complaining of his mid upper back. He had muscle spasms and tightness. Claimant was to be treated with a TENS unit. Dr. Neff reported further on February 13, 1985, that claimant was still not complaining "of any pain in his shoulder," but was complaining of pain in the midline of his upper back and the muscles of the right side of his upper back. Dr. Neff was unsure why claimant was having this difficulty and recommended x-rays of the thoracic spine and recommended that claimant be seen by a neurosurgeon. He "would feel that it is the commonly seen cervicothoracic tension type syndrome." Claimant was seen by Stuart R. Winston, M.D., on September 29, 1983. His chart notes of that date reflect that claimant gave a history of having twisted pulling a pallet with pain between the shoulders and down the left arm. Claimant had a numb index finger and some low backache. He noted that the backache was residual to surgery in 1975. Dr. Winston wrote to Dr. Tapp on that date to advise that claimant's examination suggested cervical radicular compression on the left side, probably at the triceps, although claimant had some mild deltoid weakness as well. He further advised that a myelogram was planned. Dr. Winston wrote again to Dr. Tapp on October 28, 1983. He reported that the myelogram had been essentially normal and that claimant was undergoing daily physical therapy. Claimant complained of discomfort in the area of the scapula, but had no weakness or reflex change. Dr. Winston reported further on November 18, 1983 that he was returning claimant to Dr. Tapp's care as he really had no therapy to offer him. After referral by Dr. Neff, Dr. Winston performed another myelogram in March, 1985, to exclude an occult thoracic lesion such as a disc. No evidence of abnormality was found, leading to an impression of myofascial strain, chronic recurrent. The notes of L.P.T. Bower reflect that the manipulation requested by Dr. Neff was performed on October 19, 1984. Mr. Bower continued seeing claimant through November 19, 1984 and again on January 29, 1985. He reported on the latter date that a TENS unit had been tried with good relief and that claimant had been set up to visit L.P.T. Jane Brown in the city of Creston, Iowa. Included in the record as exhibit 14 is a form completed by claimant on May 8, 1985 relative his claimed injury of that date. He stated that the injury occurred while working in the produce area "lifted box of cabbage onto another pile." He complained of injury to the left shoulder and stated that his arm felt numb. Claimant was seen at Mercy Medical Clinic on May 8, 1985. He was seen by Dr. Tapp's associate, Don Green, M.D. Claimant gave a history of injuring his left shoulder while lifting a box of cabbage to a forklift. Dr. Green noted the long history of trouble with that shoulder and two previous surgeries, assessed claimant as suffering a probable rotator cuff tear, and noted a referral to Dr. Neff. Claimant presented again on June 5, 1985. He stated that something had popped while reaching at work. This was felt to be a recurrence of the similar complaint on May 8. Dr. Neff wrote to Dr. Green, on May 13, 1985. Claimant gave Dr. Neff a history of picking up and throwing a case of cabbage and feeling a pull in the upper left part of the shoulder and the shoulder itself. Claimant reported the pain between the shoulder blades was immediately worse. Physical examination showed claimant's shoulder motion to be unchanged. Dr. Neff saw no reason to change his initial opinion. Dr. Neff wrote Dr. Green again on June 10, 1985 to report that claimant was still suffering pain in the neck, upper back between the shoulders and in the muscles that support his left shoulder. Claimant also reported numbness and swelling in the left hand, worse following activity. Dr. Neff found that claimant's range of motion of the shoulder was undiminished and saw no reason to restrict claimant from work; however he felt the necessity to ask for another opinion regarding the possibility of claimant suffering thoracic outlet syndrome and suggested that claimant be evaluated by Albert L. Clemens, M.D. Dr. Clemens saw claimant on June 24, 1985 and wrote to Dr. Neff two days later to report that he had found absolutely nothing that would indicate that claimant suffered a thoracic outlet syndrome. He noted that claimant obviously had had a severe injury to the left shoulder and had marked limitation. While regretting that he had nothing to offer claimant by way of therapy, he opined that "(t)here is not doubt in my mind that returning to manual labor would be difficult for this individual and I will not project my thinking relative to his future treatment from that standpoint." Dr. Neff reported again to Dr. Green on September 18, 1985 that claimant would not be able to do repetitive overhead activity, but released claimant to return to his normal job of driving a forklift, where he used his left arm to rotate a steering control in a circular motion at approximately waist height. Dr. Neff reported that claimant had back muscle soreness in the mid and upper back, but that the soreness was not in any way related to the shoulder. Chart notes of Mercy Medical Clinic reflect that claimant was seen on February 19, 1986 complaining of pain and numbness of the left shoulder, arm and fingers. Claimant gave a history of doing some heavy lifting approximately three weeks before when something popped in his shoulder. Dr. Belcourt reviewed claimant's history of surgery and having adhesions broken under general anesthesia in September, 1985. He noted that claimant reported recurrent problems since then with pain to the left shoulder. Claimant reported further that over the last one to two weeks he had been working on a machine that required increasing use of his left hand, and that on Monday claimant noted a sharp twinge to the shoulder region and since had suffered continual pain to that shoulder with associated radiation and some numbness. Dr. Belcourt found limited abduction in the range of motion of the shoulder, some tenderness over the lateral shoulder in the region of the deltoid, no tenderness over the superspinus region or biceps tendon, some diffuse dullness of pinprick across the lateral aspect of the hand and arm (but not localizable or reproducible) and no other point tenderness across the shoulder or left arm. His assessment was of left shoulder pain, probably secondary to old adhesions or possible bony spur formation. Claimant was given a work release for light duty for one week. Claimant was next seen on March 3, 1986, by Kent M. Patrick, M.D. Claimant was on light duty at that time and continuing to have trouble with the left shoulder. Dr. Patrick noted a history of the most recent problem as having begun in February when claimant was using a machine that involved reaching out with the left arm and moving the arm in a circular manner, apparently a forklift device. Claimant reportedly felt a snap and burning in the left shoulder and stiffness in the third and fourth digits of the left hand. Two radiological views of the shoulder taken that date showed some narrowing of the acromioclavicular joint with some postoperative changes in the region of the greater tuberosity of the humerus. Dr. Patrick felt there might be some mild degenerative changes of the glenohumeral joint itself. Dr. Patrick's chart notes show that claimant returned on March 10, 1986 following an unremarkable electromyograph, but remaining quite tender over the AC joint. The shoulder was injected with steroid and Marcaine in the AC joint, giving good initial relief. Dr. Patrick released claimant to his regular job effective March 17, 1986. Dr. Patrick's chart notes of March 24, 1986 reflect that claimant achieved only several hours of relief from the earlier injection. Returning to his regular job had caused an increase in discomfort. Claimant was then put back on light duty. Dr. Patrick reported on March 31, 1986 that claimant's bone scan revealed increased uptake in the region of the coracoid. This was felt to represent degenerative changes of the glenohumeral joint. Claimant did not have increased uptake in the region of the AC joint. Dr. Patrick felt that claimant was having rotator cuff arthropathy or arthritis "as a result of his previous injuries with or without rotator cuff tear. It does appear that it is related to his work." He noted that claimant might ultimately require a shoulder replacement, but this should be years down the road. Claimant was seen again on April 21 and May 9, 1986. On the latter date, Dr. Patrick reported that claimant had noticed some improvement in his symptoms, although he continued to have trouble and inability to perform his previous job involving rotation of the left shoulder. Claimant had stiffness in the joint with x-ray changes showing degenerative arthritis and a bone scan showing increased uptake consistent with arthritis. The chart notes further reflect: In view of his work history, including a rotator cuff tear which necessitated repair, I feel that his degenerative changes in the left shoulder are related to his work. I think his light duty status, as far as the left upper extremity is concerned, is permanent. I do not think he should be doing any job which involves a lot of rotation of this shoulder. He should not be lifting more than 25-30 pounds with that arm and certainly he should avoid work that involves use of the arm at shoulder level or higher. If something can be found that is similar to his previous job, but allows him to use the right upper extremity instead of the left, then I think he could perform that task. Dr. Patrick wrote to the claims department of defendant Liberty Mutual on April 18, 1986 to report that claimant had degenerative changes in the left shoulder which he felt was related to claimant's past injuries and surgical procedures. He did not anticipate the shoulder changing significantly in the future, other than to potentially worsen in symptoms as time goes on. Claimant might require a total shoulder replacement in the future, but he did not anticipate.this procedure in the near future. On May 30, 1986, Dr. Patrick reported to Liberty Mutual that claimant suffers from osteoarthritis of the left shoulder associated with his previous rotator cuff tear and the type of work claimant did. "The incident in February of this year merely acted as an exacerbating or aggravating event." He reported that claimant did have permanent impairment associated with the shoulder with restriction of motion "as well as the probable likelihood of progression of his disease with shoulder replacement being a last resort in the years to come when pain becomes a significant problem." Dr. Patrick assessed claimant as warranting a rating of 15 percent of the shoulder, which he extrapolated to 9 percent of the body as a whole. That assessment was of claimant's present condition, but Dr. Patrick was unable to break the rating down into the parts attributable to the February, 1986 injury and the "February 1984 injury." It is unclear which injury Dr. Patrick refers to as "February 1984," a date otherwise unmentioned in any medical records, and presumably a dictation or typographical error. Records of Mercy Hospital Medical Center reflect that a Dr. Tigrani performed radiological examination on October 2, 1983 of the cervical spine. Examination revealed spondylosis of the midportion of the cervical spine as manifested by posterior bony spur formation causing narrowing of the neuroforamina bilaterally. Otherwise, the vertebrae were normal in size and height and properly aligned with relatively good range of mobility. There was no evidence of acute changes. Dr. Licht, another radiologist, reported on the same date that a myelogram reflected the cervical subarachnoid space showing multiple extrinsic defects consistent with mild generalized spondylosis. Some anterior impressions were noted in addition to the lateral impressions on nerve roots. A view of the lumbosacral spine showed some impression on the lumbar subarachnoid space at L5-S1 on the left, with noted surgery at L5 on the right. There appeared to be impingement of the L5 nerve root. Only minimal impression was noted. There was noted [illegible] disc space at L4,L5; no other abnormality was identified. Rehabilitation consultant Kathryn Bennett wrote claimant's counsel on May 12, 1987. Ms. Bennett was associated with Eischen Rehabilitation services, Inc. After reviewing claimant's medical history and employment history, Ms. Bennett noted that all of claimant's employment had been as a laborer and with his basic education and advanced age, he would not be a good candidate for retraining. She opined that it was possible that he could obtain employment such as a crossing guard or watch guard, but those employment opportunities would be minimal and involve a much lower hourly wage. As claimant is left-handed and limited in many ways due to his lack of range of motion and grip strength, Ms. Bennett felt claimant would have difficulty performing light-duty assembly work. She also felt it was questionable whether he could tolerate driving to and from Des Moines for employment (claimant lives in the city of Arispe, Iowa) due to the vibrations associated with routine driving. She also felt that such occupations as watch guard might also be impossible due to claimant's inability to tolerate cold weather on his shoulder. Ms. Bennett opined that claimant could possibly obtain some minimum wage, full- or part-time employment, but his chances of being hired for such positions were unlikely due to his multiple disabilities, minimal education and approaching advanced age. She noted claimant's bitterness due to the fact that defendant Super Valu had allegedly failed to give him consideration for return to work. Exhibit 25 in the record reflects that claimant worked in Super Valu's temporary alternative duty program from March 1, 1986 through July 3, 1986. During the week ending March 1, 1986 claimant earned $160.00; during the week ending March 8 he earned $80.00; during the week ending March 15 he earned $120.00; during the week ending March 29 he earned $80.00; during the week ending April 5 he earned $160.00; during the week ending April 12 he earned $160.00; during the week ending April 19 he earned $200.00; during the week ending April 26 he earned $192.50; during the week ending May 3 he earned $152.50; during the week ending May 10 he earned $190.00; during the week ending May 17 he earned $187.50; during the week ending May 24 he earned $180.00; during the week ending May 31 (the last day worked was May 30) he earned $157.50. APPLICABLE LAW AND ANALYSIS Defendants Super Valu Stores and Travelers Insurance Company have stipulated that claimant's August 8, 1983 injury arose out of and in the course of employment and is causally connected to temporary and permanent disability. Claimant's testimony as to what exactly he was doing at the time of each injury is inconsistent and unreliable. Much more reliable are the contemporaneous medical reports. Drs. Tapp, Flapan and Winston all show that claimant gave a history of moving a pallet when he injured his shoulder and/or back on August 8, 1983. It is held that this injury occurred while claimant was moving a pallet as described.in the physicians' histories. Pursuant to Iowa Code section 85.34(1), healing period begins on the date of injury and continues until claimant has returned to work, it is medically indicated that significant improvement from the injury is anticipated or until claimant is medically capable of returning to substantially similar employment, whichever first occurs. Following essentially conservative treatment, claimant underwent surgery at the hands of Dr. Flapan on January 4, 1984. Dr. Flapan released claimant to return to work on April 29, 1984, but claimant was unable to perform the work. Dr. Flapan gave claimant another release to return to work effective July 2, 1984. However, claimant saw Dr. Neff on the following day, and it is clear that he was not truly able to return to work because he required further surgery to the left shoulder. Dr. Neff performed this surgery on August 14, 1984 and eventually released claimant to return to work on December 3, 1984. It is held that this date ended the healing period caused by the August 8, 1983 injury. This is a timespan of 69 weeks exactly. As is discussed below, this decision holds that all of claimant's permanent disability to the shoulder is attributable to the August 8, 1983 injury. However, the record is clear that claimant sustained aggravations of his condition on or about May 8, 1985 and February 18, 1986. Claimant has the burden of proving by a preponderance of the evidence that he received injuries on May 8, 1985 and February 18, 1986 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 injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employed. (Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injuries of May 8, 1985 and February 18, 1986 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251.Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works,.247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). A contemporaneous workers' compensation form filled out by claimant and the records of Dr. Green show that claimant was injured while lifting a box of cabbage on May 8, 1985, while Liberty Mutual Insurance Company stood coverage. It is held that claimant's injury was caused while lifting a box of cabbage. Although the record does not contain evidence that any physician specifically relates claimant's disability resulting from this injury to his work, the record is also clear that claimant sustained a substantial period of temporary disability arising from a traumatic incident while on the job. It is held that claimant has met his burden of proof in establishing a causal relationship between the work incident and his temporary disability. Claimant was off work from May 8, 1985 until released to return to work by Dr. Neff effective September 18, 1985, a period of 19 weeks, 1 day. Dr. Neff's release ended claimant's period of temporary disability. Although claimant had sustained a permanent disability by reason of his August 8, 1983 injury, he had continued to work until the work incident of May 8, 1985. This incident aggravated his condition, although it has not been shown that the aggravation extended beyond a temporary exacerbation of claimant's condition. Therefore, it is held that claimant is entitled to temporary total disability benefits from May 8 through September 18, 1985 by reason of the May 8, 1985 work injury while Liberty Mutual was the insurance carrier. Accordingly, Liberty Mutual shall be liable for this period of temporary disability under Iowa Code sections 85.33 and 85.32. Because the period of incapacity extended beyond 14 days, compensation during the third week is increased by adding three days, restoring the three days during which compensation was not payable (pursuant to 85.32, compensation begins on the fourth day of disability after the injury). The evidence is conflicting as to the nature of claimant's work incident or injury on February 18, 1986. Chart notes of Mercy Medical Clinic reflect that claimant gave a history of doing some heavy lifting approximately three weeks before. Dr. Belcourt was given a history of one to two weeks working on a machine that required increasing use of his left hand and on Monday (apparently, February 16, 1986) noting a sharp twinge to the shoulder region and thereafter continual pain with associated radiation and numbness. Dr. Patrick was given a history of the problem beginning when claimant was using a machine, apparently a forklift, that involved reaching out and moving the arm in a circular manner. Claimant testified to three separate injuries: While pulling a pallet, while lifting a box of cabbages, and while turning the wheel of his forklift. Although it is clear that claimant confused the dates, the undersigned finds him to be credible with respect to the nature of the work incidents that caused his disability. Based on claimant's testimony that one of his injuries occurred while he was turning the wheel of his forklift, and based further on Dr. Patrick's records (also, Dr. Belcourt's notes are not at all inconsistent with this sort of injury), it is held that claimant suffered a work incident requiring him to leave work February 18, 1986 because of an injury to his left shoulder while turning the wheel of his forklift truck. Although the record does not specifically contain medical testimony or evidence causally relating claimant's 1986 period of disability to that work incident, it is evident that claimant did sustain a temporary exacerbation of symptoms such as to require him to be off his regular work: It was from March 1, 1986 through July 5, 1986 (according to the testimony of Kelly O'Neill) that claimant was on the temporary alternative duty program. It is held that claimant suffered a work-related temporary exacerbation or aggravation of his preexisting condition preventing him from returning to his regular work effective February 18, 1986 and continuing until such time as Dr. Patrick assessed claimant's permanent disability on May 30, 1986. The fact that a disability rating was assessed implies that claimant had reached maximum recuperation as of that date, even though he continued on the temporary alternative duty program for more than a month thereafter. It is held that claimant was temporarily totally disabled from February 18, 1986 through February 28, 1986 and temporarily partially disabled from March 1, 1986 through May 30, 1986 while on the TAD program. Pursuant to Iowa Code sections 85.33(2) and (3), temporary partial benefits are payable in lieu of temporary total disability because of the employee's temporary partial reduction in earning ability as the result of his temporary partial disability. Pursuant to section 85.33(4), temporary partial disability benefits are 66 2/3 percent of the difference between claimant's weekly earnings at the time of injury and his actual gross weekly income from employment during his period of temporary partial disability. At the time of hearing, the parties stipulated that claimant's rate of weekly compensation for the February 18, 1986 injury is $310.01. They did not enter into a stipulation as to the amount of his gross weekly earnings. Claimant testified to being married with no dependent children. The workers' compensation benefit schedule published by the industrial commissioner effective July 1, 1985 was in effect on February 18, 1986. A compensation rate of $310.01 is a listed rate of compensation for a married individual with two dependents. Although the parties did not stipulate as to the number of exemptions to which claimant was entitled, it is likely that the number is two. Therefore it is held that the probable gross weekly wage earned by claimant at the time of the 1986 injury was in the sum of $516.00, since the benefit schedule for a married individual with two exemptions shows a weekly benefit rate of $310.01 for an individual earning $516.00 per week. Pursuant to exhibit 25, claimant earned a total of $2,020.00 on the TAD program from March 1 through May 30, 1986. This is exactly 13 weeks. Multiplying 13 times $516.00 yields a product of $6,708.00. Therefore, the difference between his weekly earnings at the time of injury and his actual income during his temporary partial disability is $4,688.00. Multiplied by 66.67 percent, claimant's entitlement to temporary partial disability from March 1 through May 30, 1986 is $3,125.49. Claimant's entitlement to temporary total disability from February 18 through February 28, 1986 (1.571 weeks pursuant to Division of Industrial Service Rule 343-8.6) is $487.03. As this temporary disability relates to the incident of February 18, 1986, while Liberty Mutual stood coverage, Liberty Mutual and Super Valu shall bear the liability. As has been seen, Super Valu Stores and Travelers Insurance Company have stipulated that claimant sustained permanent disability by reason of his August 8, 1983 injury. Defendants Super Valu and Liberty Mutual Insurance Company dispute whether claimant sustained permanent disability by reason of the May 8, 1985 and February 18, 1986 injuries. It has already been held that claimant sustained injuries or at least work incidents on the latter two dates. Of course, it remains claimant's burden of proof to establish a causal connection between not only temporary disability, but permanent disability. Dr. Patrick reported on March 31, 1986 that claimant was having rotator cuff arthropathy or arthritis "as a result of his previous injuries with or without rotator cuff tear. It does appear that it is related to his work." On May 30, 1986, Dr. Patrick reported that the February 1986 injury acted merely as an exacerbating or aggravating event. There is no evidence in this record causally connecting the February 18, 1986 injury to claimant's present permanent disability. Dr. Patrick's comment as quoted above is the only evidence even remotely causally connecting claimant's disability with the May 8, 1985 injury. It might also be noted that Dr. Neff assessed claimant's impairment as eight.percent of the body as a whole subsequent to the August 8, 1983 injury, while Dr. Patrick, the only physician to have assessed claimant's condition following the 1986 injury, assigned claimant an essentially identical nine percent body as a whole impairment. Dr. Patrick, as has been seen, related claimant's condition to his earlier injuries, not the 1986 injury. There is no indication in this record that claimant's condition of permanent disability is causally related to the 1985 as opposed to the 1983 injury, and the evidence is without dispute (and even stipulated) that claimant did sustain permanent disability following the 1983 injury. It is accordingly held that claimant's industrial disability relating to his left shoulder is entirely related to his injury of August 8, 1983. Claimant complained of back problems and shoulder problems resulting from the August 8, 1983 injury. The evidence is undisputed that he has sustained permanent disability.to the left shoulder, although the parties dispute whether this injury is to the upper extremity or the body as a whole. However, there is no evidence in this record supporting an award of permanent disability based on claimant's back condition. Dr. Winston diagnosed claimant as suffering from chronic myofascial strain, but causally related claimant's back problems to the 1975 injury as residual to that event. Claimant has failed to meet his burden of proof in establishing permanent disability to his back resulting from the 1983 work injury. Claimant has undergone surgery to the left shoulder region on two occasions. On January 4, 1984, Dr. Flapan performed a left rotator cuff repair with excision of the left coracoacromial ligament. On August 14, 1984, Dr. Neff thinned the rotator cuff at the insertion of the greater tuberosity of the humerus, resected inferior and anterior aspects of the acromion, and completely removed the coracoacromial ligament. Surgery extended into the body as a whole, and claimant's disability and pain are largely to the body side of the shoulder joint. Claimant's shoulder injury of August 8, 1983 caused permanent disability to the body as a whole and not merely the upper extremity. Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Roach v. Firestone Tire & Rubber Co., file number 806034 (App. Decn., August 24, 1989); Thompson v. Marshall & Swift, Inc., file number 784394 (App. Decn., August 28, 1989). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant is of the view that he is permanently and totally disabled under the odd-lot theory enunciated in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). The Supreme Court allocated the burden of production of evidence in that case: Claimant must make a prima facie showing of coming within the odd-lot category; if claimant does so, the burden of proof rests with defendants to produce evidence that suitable employment in a reasonably stable job market exists for the services claimant is capable of providing. Although claimant continued working for Super Valu Stores following his 1983 injury, he conceded that he has not sought further employment of any substantial nature since his last day working for defendant. Such an individual has not met his prima facie burden of proof in establishing applicability of the odd-lot doctrine. Collins v. Friendship Village, Inc., file number 679258 (App. Decn., October 31, 1988); Hingtgen v. Goodmann, file number 737771 (App. Decn., September 30, 1988). It is clear that claimant has sustained substantial industrial disability. However, it appears probable that claimant could have obtained further employment with defendant Super Valu had he elected to pursue posted job offerings, or even the three separate open positions to which he was alerted by Charles Schwab. For example, claimant conceded on cross-examination that he would have been able to perform the third shift billing clerk position, even though it involved lifting papers to pigeonholes over his shoulder, because that portion of the job could have been performed with his right hand. While that position would have entailed a 25 percent pay cut, it is indicative both that claimant is not totally disabled and that there is some legitimate question as to his motivation to return to work. Claimant has had restrictions imposed because of his shoulder injury. Dr. Clemens suggested that he not return to manual labor. Dr. Neff restricted claimant from repetitive overhead work. Dr. Patrick restricted him from lifting the arm over his shoulder, from rotating the shoulder and from lifting in excess of 25-30 pounds. The last restriction is not particularly significant, since claimant already had a 30-pound lifting restriction resulting from his 1975 back injury. He was also restricted at that time to sedentary work without significant bending, lifting, twisting or stooping. That is to say, in assessing claimant's current industrial disability, it must be remembered that claimant had preexisting substantial industrial disability which should be apportioned out in awarding permanent disability benefits in this case. Claimant was 58 years old at the time of hearing and in the latter part of his working career. Retraining does not appear particularly feasible. However, claimant is a high school graduate and was an average student. While much of claimant's working career has been devoted to manual labor, he has no doubt developed clerical skills during his employment with defendant such as an inventory clerk might use. The disability to his left side is exacerbated because he is left-hand dominant. Rehabilitation consultant Bennett properly pointed out that claimant is limited due to his lack of range of motion and grip strength, but also suggested that negative factors include whether claimant could tolerate driving to and from Des Moines and whether he was able to tolerate cold weather on his shoulder. There is no indication in this record that an inability to stand driving is associated with the shoulder injury (it has been found that permanent disability to the back was not established) and there are no medical restrictions in this record as to cold weather. In addition, claimant's high school diploma cannot truly be spoken of as "minimal education" as did Ms. Bennett. Considering these factors in particular and the record in general, it is concluded that claimant now suffers an industrial disability to the body as a whole of 80 percent. It is further concluded that claimant had a 25 percent industrial disability preexisting the August 8, 1983 injury. (Although the record discloses that claimant has had prior workers' compensation claims, the result of that litigation is not in evidence.) Thus, claimant has sustained a 55 percent permanent partial disability of the body as a whole by reason of the August 8, 1983 work injury. He is accordingly entitled to 275 weeks of benefits. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant was employed by defendant Super Valu Stores, Inc., on August 8, 1983 (741350), May 8, 1985 (855485), and February 18, 1986 (817067). 2. Claimant was injured on the job on August 8, 1983 while pulling on a pallet. His left shoulder was injured. 3. Claimant was injured while lifting or throwing a box of cabbage on the job on May 8, 1985. The injury was to his left shoulder. 4. Claimant also injured his left shoulder on or about February 18, 1986 while moving the steering mechanism of his forklift truck in a circular manner. 5. Claimant was off work by reason of his August 8, 1983 injury from August 8, 1983 until released to return to work by Dr. Neff on December 3, 1984. This is a span of 69 weeks, 0 days. 6. Claimant was off work by reason of his May 8, 1985 injury from that date until released to return to work by Dr. Neff effective September 18, 1985. This is a span of 19 weeks, 1 day. 7. Claimant was off work by reason of his February 18, 1986 injury from February 18 through February 28, 1986. He then worked on a less than full-time basis in a temporary alternate duty program from March 1, 1986 until he was issued an impairment rating by Dr. Patrick on May 30, 1986. Claimant also remained on the temporary alternate duty program thereafter until July 5, 1986. 8. As stipulated, claimant's rate of compensation for the August 8, 1983 injury is $296.26. 9. As stipulated, claimant's rate of compensation for his May 8, 1985 and February 18, 1986 injuries is $310.01. Based on that stipulation, claimant's marital status of married, and probable number of dependents as two, and further considering the workers' compensation benefit schedule published by the industrial commissioner and effective on February 18, 1986, claimant's gross weekly wage at that time was $516.00. 10. Claimant's injury of August 8, 1983 resulted in permanent impairment to claimant's body as a whole; claimant has not shown that his injuries of May 8, 1985 and February 18, 1986 caused permanent disability or impairment.beyond a temporary aggravation of claimant's preexisting condition. 11. Claimant has been industrially disabled to the extent of 80 percent of the body as a whole. However, he had a preexisting industrial disability of 25 percent of the body as a whole. 12. Claimant has failed to establish that he has conducted a bona fide search for work since his employment with defendant Super Valu Stores ended. In fact, it appears that there are some positions within his limitations which his seniority would have enabled him to secure had he chosen to do so. 13. Claimant was a credible witness, but he is confused as to the dates on which the three subject industrial incidents occurred. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Claimant sustained injuries arising out of and in the course of his employment with Super Value Stores, Inc., on August 8, 1983, May 8, 1985, and February 18, 1986. 2. Claimant's injury of August 8, 1983 directly caused a healing period from August 8, 1983 through December 3, 1984. 3. Claimant has established permanent disability to the body as a whole resulting from his August 8, 1983 injury of 55 percent, after apportioning out 25 percent of his current 80.percent permanent partial disability to the body as a whole as resulting from a preexisting injury. 4. Claimant has failed to establish entitlement to permanent disability resulting from his work injuries of May 8, 1985 and February 18, 1986. 5. Claimant has established that his injury of May 8, 1985 caused temporary total disability from May 8, 1985 until September 18, 1985. 6. Claimant has established that his injury of February 18, 1986 caused temporary total disability from February 18 through February 28, 1986 and temporary partial disability from March 1 through May 30, 1986. ORDER THEREFORE, IT IS ORDERED: Defendants Super Valu Stores, Inc., and Travelers Insurance Company shall pay unto claimant sixty-nine (69) weeks, zero (0) days of healing period benefits in file number 741350 at the stipulated weekly rate of two hundred ninety-six and 26/100 dollars ($296.26), totalling twenty thousand four hundred forty-one and 94/100 dollars ($20,441.94). Defendants Super Valu Stores, Inc., and Liberty Mutual Insurance Company shall pay unto claimant nineteen point one four three (19.143) weeks of temporary total disability in file number 855485 at the stipulated rate of three hundred ten and 01/100 dollars ($310.01) per week totalling five thousand nine hundred thirty-four and 51/100 dollars ($5,934.51). Defendants Super Valu Stores, Inc., and Liberty Mutual Insurance Company shall pay unto claimant one point five seven one (1.571) weeks of temporary total disability in file number 817067 at the stipulated rate of three hundred ten and 01/100 dollars ($310.01) per week totalling four hundred eighty-seven and 03/100 dollars ($487.03). Defendants Super Valu Stores, Inc;, and Liberty.Mutual Insurance Company shall pay unto claimant temporary partial disability in file number 817067 in the sum of three thousand one hundred twenty-five and 49/100 dollars ($3,125.49). Defendants Super Valu Stores, Inc., and Travelers Insurance Company shall pay unto claimant two hundred seventy-five (275) weeks of permanent partial disability at the stipulated rate of two hundred ninety-six and 26/100 dollars ($296.26) per week totalling eighty-one thousand four hundred seventy-one and 50/100 dollars ($81,471.50). The commencement date for accrual of permanent partial disability is December 4, 1984. However, payment of permanent partial disability shall be suspended during claimant's subsequent periods of temporary total and temporary partial disability as set forth above. Defendants shall be entitled to credit for all benefits paid voluntarily prior to hearing. All accrued benefits as of the date of this decision shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Each party shall be responsible for payment of its own costs. Defendants shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of December, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 6th Street P.O. Box 209 Waukee, Iowa 50263 Ms. Patricia J. Martin Attorney at Law 100 Court Avenue, Suite 600 Des Moines, Iowa 50309 Mr. W. C. Hoffmann Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 51801, 51803 Filed December 29, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM MORAN, Claimant, File Nos. 741350 vs. 817067 855485 SUPER VALU STORES, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., TRAVELERS INSURANCE COMPANY, Insurance Carriers, Defendants. 51801, 51803 Claimant suffered three work incidents with same employer, but different insurance carriers. The first incident was found to have caused healing period and 55 percent permanent disability (after apportioning out preexisting industrial disability). Second and third incidents found to have caused only temporary exacerbations. Temporary total and temporary partial disability awarded.