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.