Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD L. BERDING,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 832396 & 904266
 
            PACKERLAND PACKING CO., INC., :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            L. Berding, claimant, against Packerland Packing Company, 
 
            Inc., employer (hereinafter referred to as Packerland), and 
 
            Cigna Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of alleged 
 
            injuries on August 29, 1986 and August 10, 1988.  On August 
 
            9, 1990, a hearing was held on claimant's petitions and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The testimony and written exhibits received during 
 
            the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  Claimant sustained injuries on the dates alleged in 
 
            the petitions which arose out of and in the course of 
 
            employment with Packerland.
 
            
 
                 2.  Claimant is entitled to temporary total disability 
 
            or healing period benefits for the periods of time set forth 
 
            in the prehearing report and these benefits have been paid 
 
            at the proper rate according to the prehearing report.
 
            
 
                 3.  If the injuries are found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $199.42 for the August 1986 injury and $210.43 for the 
 

 
            
 
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            August 1988 injury.  It was also stipulated that in the 
 
            event it is found that claimant suffered a cumulative 
 
            trauma, the rate of compensation shall be $210.43 per week.
 
            
 
                 5.  With reference to the requested medical expenses, 
 
            it was agreed that the charges for the services are fair and 
 
            reasonable but whether or not they were necessary, autho
 
            rized or causally connected to the injury is in dispute.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  The extent of claimant's entitlement to permanent 
 
            disability benefits;
 
            
 
                  II.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to voca
 
            tional rehabilitation benefits under Iowa Code section 
 
            85.70.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue as to the 
 
            nature and extent of the injury and disability.  From his 
 
            demeanor while testifying, claimant is found credible.
 
            
 
                 Claimant worked for Packerland and his predecessor, 
 
            Banner Beef, from August 1975 until April 1989, at which 
 
            time claimant was terminated for failure to return to work 
 
            as instructed by one of claimant's treating physicians.  
 
            Claimant contends that he did not return to work as he was 
 
            not able to do so and that this disability was verified by 
 
            another physician.  Claimant's work at Packerland involved 
 
            heavy manual labor as a meat packer performing various jobs 
 
            in the slaughtering of beef cattle.  Claimant has not been 
 
            employed in any capacity since his termination at Packerland 
 
            and is currently attending a community college seeking an 
 
            associate of applied science degree in computer programming.
 
            
 
                 The injury of August 1986, involved claimant's low 
 
            back.  While performing the job of "trimming hearts" and 
 
            "cleaning tails" claimant experienced severe low back pain 
 
            while attempting to lift an 80 pound tub of "tails."  
 
            Claimant continued to work but the pain grew worse and "seem 
 
            to work up to the upper back."  After work claimant sought 
 
            chiropractic care from Bruce Crabtree, D.C.  Claimant con
 
            tinued under the care of Dr. Crabtree and returned to light 
 
            duty work on September 14, 1986.  After a week of "trimming 
 
            tongues" claimant's pain reoccurred and claimant was again 
 
            taken off work by Dr. Crabtree.  Claimant was then referred 
 
            to a medical doctor who prescribed medication for pain.  
 
            Claimant's condition continued to worsen and he was eventu
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            ally referred to an orthopedic surgeon, John J. Dougherty, 
 
            M.D.  Dr. Dougherty eventually diagnosed that claimant was 
 
            suffering from radiculopathy at the L5 level of claimant's 
 
            spine due to degenerative discs.  Dr. Dougherty prescribed 
 
            exercises and medication.  Claimant improved and returned to 
 
            light duty work in October of 1986.  Upon his return, 
 
            claimant was assigned to "trimming tripe", a lighter duty 
 
            job, but was eventually returned to full duty as an assis
 
            tant foreman in the allful department.  This job still 
 
            required claimant to perform heavy lifting and claimant said 
 
            that he continued to have pain when he exceeded 60 pounds in 
 
            lifting.  However, no formal restrictions were imposed upon 
 
            claimant and he was able to continue working.  Claimant's 
 
            chiropractic care ended in January of 1987 upon the advice 
 
            of Dr. Dougherty.  Claimant stated that he never fully 
 
            recovered from the August 1986 injury.  Dr. Dougherty stated 
 
            in his final report prior to the August 1988 injury, that 
 
            claimant should not do a lot of heavy lifting or excessive 
 
            bending or lifting.
 
            
 
                 The injury of August 1988 was again to the low back 
 
            after lifting a tub of meat products but this time the pain 
 
            extended into the mid and upper back.  Claimant was 
 
            "trimming hearts" at the time.  Claimant was treated at this 
 
            time by his family physician R. L. Magruder, M.D., who 
 
            allowed claimant to continue working but with physical 
 
            therapy after each work day.  After claimant failed to 
 
            improve, claimant was referred to an orthopedic surgeon, 
 
            Duane K. Nelson, M.D., on August 31, 1988.  Dr. Nelson diag
 
            nosed discogenic low back pain likely due to disc disease at 
 
            L2-3 and L5-S1.  Dr. Duane Nelson stated that claimant's 
 
            condition was a work related injury of the low back.  Dr. 
 
            Duane Nelson stated that claimant was not suitable for heavy 
 
            work and recommended rehabilitation with no lifting over 50 
 
            pounds or 20 pounds on a repetitive basis.  Dr. Duane Nelson 
 
            stated that claimant's condition was permanent.
 
            
 
                 In January 1989, claimant's care was transferred to a 
 
            Brian Nelson, M.D., another orthopedic surgeon, by the voca
 
            tional rehabilitation consultant hired by defendants.  This 
 
            rehabilitation consultant testified at hearing that Dr. 
 
            Brian Nelson was a back specialist with a lot of success 
 
            with low back problems.  Dr. Brian Nelson diagnosed degener
 
            ative disc disease and stated in his first report that 
 
            claimant was not a good candidate for heavy manual labor and 
 
            stated that a return to work at the packing plant should not 
 
            be a goal.  He treated claimant with a vigorous physical 
 
            therapy program.  Claimant attended this program but soon 
 
            complained to Dr. Magruder on February 13, 1989, that the 
 
            program was actually increasing not decreasing his back 
 
            pain, claimant was advised by Dr. Magruder to tell this to 
 
            Dr. Brian Nelson.  On February 20, 1989, claimant reported 
 
            his problems with the program to Dr. Brian Nelson.  Dr. 
 
            Brian Nelson then issued a report stating that claimant was 
 
            not appearing for physical therapy and was greatly magnify
 
            ing his symptoms.  Dr. Brian Nelson then released claimant 
 
            to return to work at the packing plant with a gradual ease 
 
            into full duty over a 30 day period.  Dr. Brian Nelson never 
 
            explained what changed his mind from his initial report con
 
            cerning a return to work at the packing plant but it was 
 

 
            
 
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            apparent that he felt that claimant was exaggerating his 
 
            back problems.  However, this conflicts with the reports of 
 
            his own physical therapist who clearly stated that claimant 
 
            was experiencing increased pain from the therapy.  
 
            Claimant's severe muscle spasms were objectively noted by 
 
            Dr. Magruder on February 13.  Therefore, the undersigned 
 
            gives little weight to the views of Dr. Brian Nelson.  
 
            Claimant was terminated in April 1989 for failure to follow 
 
            Dr. Brian Nelson's return to work recommendations.
 
            
 
                 Claimant then sought treatment on his own from Dr. 
 
            Duane Nelson on February 21, 1989.  Although Dr. Nelson 
 
            stated that "secondary gain cannot be totally excluded" he 
 
            felt that claimant should discontinue the physical therapy 
 
            ordered by Dr. Brian Nelson and that he should continue with 
 
            a lighter physical therapy program.  Claimant did so after 
 
            that time.  Dr. Duane Nelson felt that it was best to back 
 
            off on further testing and refer claimant to another ortho
 
            pedic surgeon, Gail Benson, M.D., for another opinion.  Dr. 
 
            Benson saw claimant in March of 1989.  After a negative CT 
 
            scan, Dr. Benson diagnosed that claimant suffers from degen
 
            erative disc disease and that there should be a functional 
 
            capabilities assessment before she could allow a return to 
 
            work.  This assessment was performed in April of 1989.  
 
            According to the assessment, claimant can only stand for 30 
 
            minutes, carry up to 12 pounds with either hand, push only 
 
            35.5 pounds, pull only 22 pounds and lift approximately 
 
            10-12 pounds.  The evaluator stated, however, that this was 
 
            not a good measure of claimant's capabilities as claimant 
 
            ended his efforts whenever he experienced any degree of 
 
            pain.  If claimant is willing to tolerate some degree of 
 
            pain, his capabilities would be greater.  However, to be 
 
            sure that no further injury takes place, it was recommended 
 
            that the work stay within the capabilities assessment as 
 
            described above.  The evaluator recommended that a 
 
            structured work hardening program be implemented to increase 
 
            claimant's capabilities.
 
            
 
                 As a result of both work injuries in this case, 
 
            claimant has suffered a significant degree of permanent 
 
            partial impairment to the body as a whole.  As this is an 
 
            industrial disability case, the exact percentage of impair
 
            ment is not as important as the physical restrictions 
 
            imposed as a result of the injuries which impede his ability 
 
            to earn income.  All physicians in this case, except for 
 
            possibly Dr. Brian Nelson, believe that claimant suffers 
 
            from chronic and permanent low back problems.  Based upon 
 
            the views of Dr. Benson, claimant's most recent functional 
 
            capabilities assessment appears to be the best indicator of 
 
            his current limitations should he return to factory work.  
 
            In addition, claimant's credible testimony established that 
 
            he does have some limitations with prolonged sitting such as 
 
            driving long distances.  He experienced these problems while 
 
            pursuing his current educational program.
 
            
 
                 It is also found that claimant suffered permanent 
 
            impairment after each of the two injuries.  This finding is 
 
            based upon the views of Drs. Duane Nelson and Mark Kruse, 
 
            D.C., who examined claimant in May of 1990.  Also, another 
 

 
            
 
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            physician, Paul Vander Kooi, M.D., examined claimant in June 
 
            of 1990.  Dr. Vander Kooi, specialty unknown, opined that 
 
            claimant's degenerative disc disease is due to claimant's 
 
            history of heavy lifting at Packerland over the years.  No 
 
            other causal connection opinions were offered in this case.
 
            
 
                 Claimant had a prior back injury in 1981 at Packerland 
 
            but claimant was able to return to full duty without 
 
            restrictions after this injury and only received occasional 
 
            maintenance care from a chiropractor since that time.  
 
            Therefore, it is found that claimant suffered no permanent 
 
            partial impairment as a result of the 1981 injury.
 
            
 
                 As a result of the work injury of August 10, 1988, 
 
            claimant has suffered a 35 percent lost of earning capacity.  
 
            Although claimant suffered permanent partial impairment from 
 
            the August 1986 injury, claimant suffered no loss of earning 
 
            capacity as he was able to return to full duty and he became 
 
            an assistant foreman.  It matters little whether you con
 
            sider the last injury as "the straw that broke the camel's 
 
            back" or the last incident in a cumulative trauma situation, 
 
            the result is the same.  As a result of this last injury, 
 
            claimant is unable to return to any work requiring heavy 
 
            lifting, repetitive lifting, bending or prolonged standing 
 
            or sitting.  Claimant's only employment history has been in 
 
            heavy manual labor.  Due to his physical limitations, 
 
            claimant's ability to perform work in his locality is 
 
            severely restricted.  Claimant has suffered a very signifi
 
            cant loss of actual earnings due to the loss of his job at 
 
            Farmland and his inability to return to work without 
 
            retraining.  Although the termination in April of 1989, by 
 
            Packerland appeared to be rather hasty, it matters little as 
 
            it is clear that Packerland would have terminated claimant 
 
            anyway due to the imposition of permanent restrictions by 
 
            his physicians.  Claimant remains unemployed at the present 
 
            time.
 
            
 
                 On the other hand, claimant is relatively young at 36 
 
            years of age.  Claimant has a high school education.  
 
            Claimant has considerable motivation to return to the work 
 
            force.  After his termination at Packerland, he enrolled in 
 
            and is about to complete his current educational program 
 
            with the assistance of the Iowa Division of Vocational 
 
            Rehabilitation Services.  This appears to be the best voca
 
            tional rehabilitation alternative as defendants' own voca
 
            tional consultant could only identify five jobs in 
 
            claimant's locality under the Dictionary of Occupational 
 
            Titles and it was not shown that any of these jobs are open 
 
            or available to claimant at this time.  Defendants have not 
 
            assisted claimant in any manner in claimant's current voca
 
            tional rehabilitation endeavors.  Due to the testimony of 
 
            the head of the computer science department at claimant's 
 
            school, it is likely that claimant will be placed in a job 
 
            which will pay approximately the same as claimant's job at 
 
            Packerland.  Although there is potential for a higher 
 
            salary, this is only speculation at this time.  However, 
 
            claimant will probably have to move his long time residence 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            at great emotional and monetary expense.
 
            
 
                 Except for the bill from Dr. Kruse, the medical bills 
 
            and expenses submitted for reimbursement at hearing as 
 
            listed in the prehearing report are found causally connected 
 
            to the work injuries herein and are also found to be reason
 
            able and necessary treatment of those injuries.  The 
 
            expenses of Dr. Kruse appear to be only for use in litiga
 
            tion rather than medical treatment.  Again, the views of Dr. 
 
            Brian Nelson that claimant had little or no disability and 
 
            was able to return to full duty at Packerland after 30 days 
 
            was not credible.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In this decision, it was found that claimant may not 
 
            eventually suffer a permanent loss of actual earnings as he 
 
            is likely to find employment as a computer programmer at or 
 
            close to his earnings at Packerland.  A showing that 
 
            claimant had no loss of actual earnings does not preclude a 
 
            finding of industrial disability.  See Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report, Iowa Industrial 
 
            Commissioner 218, 220 (Appeal Decision 1979).  On the other 
 
            hand, this award was lowered by virtue of the finding.  The 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            undersigned agrees with the analysis of Steward v. Crouse 
 
            Cartage Company, (Appeal Decision filed February 20, 1987) 
 
            contained in defendants' post hearing brief.  Although the 
 
            mere enrollment or participation in a retraining program is 
 
            no measure of its success, its probable success or failure 
 
            can be shown by other evidence.  In this case, the credible 
 
            testimony of the head of the computer science department was 
 
            sufficient to show that success is likely in this case.
 
            
 
                 In the case sub judice, it is found that claimant has 
 
            suffered a 35 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 175 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 35 percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole in that subsection.  It was 
 
            stipulated that such benefits would begin as of April 15, 
 
            1989.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement only if claimant has paid those 
 
            expenses.  Otherwise, claimant is entitled to only an order 
 
            directing the responsible defendants to make such payments.  
 
            See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, all but one of the expenses, that 
 
            of Dr. Kruse, was found causally connected to the injury and 
 
            reasonable and necessary treatment.  Although Dr. Kruse's 
 
            bill may qualify as an independent medical examination, an 
 
            issue involving Iowa Code section 85.39 was not raised at 
 
            the prehearing conference and nor was it assigned as an 
 
            issue in the hearing assignment order.  Therefore, such an 
 
            issue cannot be heard.
 
            
 
                 Defendants claim that the expenses requested by 
 
            claimant at hearing were for unauthorized treatment and 
 
            claimant is not entitled to reimbursement for these expenses 
 
            as Iowa Code section 85.27 provides employees with the right 
 
            to chose the care.  However, section 85.27 applies only to 
 
            injuries and conditions compensable under Chapters 85 and 
 
            85A of the Code and obligates the employer to furnish rea
 
            sonable medical care.  This agency has held that it is 
 
            inconsistent to deny liability and the obligation to furnish 
 
            care on one hand and at the same time claim a right to chose 
 
            the care.  Kindhart v. Fort Des Moines Hotel, I Iowa 
 
            Industrial Commissioner Decisions 3, 611 (Appeal Decision 
 
            1985); Barnhart v. MAQ Incorporated, I Iowa Industrial 
 
            Commissioner Report 16 (Appeal Decision 1981).  In this 
 
            case, defendants have consistently denied liability for 
 
            claimant's permanent and chronic problems and asserted that 
 
            claimant only exaggerated his disability.  They have chosen 
 
            to adopt the views of Dr. Brian Nelson who felt that 
 
            claimant was able to return to work after only 30 days of 
 
            light duty at a packing plant.  Therefore, defendants had no 
 
            right to chose the care for any of claimant's permanent con
 
            tinuing back problems.  For the most part defendants' 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            refused to provide care by their adoption of the views of 
 
            Dr. Brian Nelson which are not found credible in this case.
 
            
 
                 III.  Claimant is entitled to rehabilitation benefits 
 
            under Iowa Code section 85.70 as he has sustained injuries 
 
            resulting in permanent partial disability and he cannot 
 
            return to gainful employment because of such disability.  
 
            Claimant is successfully participating in a rehabilitation 
 
            program sponsored by the Iowa Division of Vocational 
 
            Rehabilitation.  Claimant will be awarded the maximum bene
 
            fits under this code section, the sum of $20.00 per week for 
 
            26 consecutive weeks.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred ten and 43/l00 dollars 
 
            ($210.43) per week from April 15, 1989.
 
            
 
                 2.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report except for the examination and report 
 
            of Dr. Kruse.  Claimant shall be reimbursed for any of these 
 
            expenses paid by him.  Otherwise, defendants shall pay the 
 
            provider directly along with any lawful late payment penal
 
            ties imposed upon the account by the provider.
 
            
 
                 3.  In addition to the above award for permanent par
 
            tial disability, claimant shall be paid vocational rehabili
 
            tation benefits in the amount of twenty and no/l00 dollars 
 
            ($20.00) per week for twenty-six (26) consecutive weeks 
 
            beginning on the date he was first enrolled in his current 
 
            education program.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 6.  Defendants shall pay the cost of this action pur
 
            suant to Division of Industrial Services Rule 343 IAC 4.33, 
 
            including reimbursement to claimant for any filing fee paid 
 
            in this matter.
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Charles T. Patterson
 
            Mr. Thomas M. Plaza
 
            Attorneys at Law
 
            701 Pierce St  STE 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Ins Exchange Bldg
 
            Des Moines  IA  50309
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHUBB GROUP OF INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,                  File No. 832446
 
         
 
         vs.                                          A P P E A L
 
         
 
         CNA,                                       D E C I S I O N
 
         
 
              Insurance Carrier,
 
                                                       F I L E D
 
         In The Matter of Clara
 
         Schexnayder, not a party,                    AUG 23 1989
 
         
 
         vs.                                      INDUSTRIAL SERVICES
 
         
 
         Sioux Honey Association,
 
         not a party,
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              CNA Insurance Company (hereinafter CNA) appeals and Chubb 
 
         Group of Insurance Companies (hereinafter Chubb Group) 
 
         cross-appeals from a decision on 85.21 benefits which ordered CNA 
 
         to reimburse Chubb Group for medical benefits and permanent 
 
         partial disability benefits but denied interest payments and 
 
         attorneys' fees.
 
         
 
              The record on appeal consists of stipulated facts and 16 
 
         stipulated exhibits with number 15 omitted.  Both parties filed 
 
         briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are whether Chubb Group is entitled to 
 
         reimbursement of medical benefits and permanent partial 
 
         disability benefits and whether Chubb Group is entitled to 
 
         interest payments and attorneys' fees.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The decision on 85.21 benefits dated July 20, 1988, 
 
         adequately and accurately reflects the pertinent evidence and it 
 
         will not be reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the decision on 85.21 benefits are 
 
         appropriate to the issues and evidence.  The following additional 
 
         citations are applicable.  Iowa Code section 85.30 provides:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
               
 
                Compensation payments shall be made each week beginning 
 
              on the eleventh day after the injury, and each week 
 
              thereafter during the period for which compensation is 
 
              payable, and if not paid when due, there shall be added to 
 
              the weekly compensation payments, interest at the rate 
 
              provided in section 535.3 for court judgments and decrees.
 
                
 
              Iowa Code section 86.39 provides:
 
                
 
                All fees or claims for legal, medical, hospital, and 
 
              burial services rendered under this chapter and chapters 85, 
 
              85A, 85B, and 87 are subject to the approval of the 
 
              industrial commissioner, and no lien for such service is 
 
              enforceable without the approval of the amount of the lien 
 
              by the industrial commissioner.  For services rendered in 
 
              the district court and appellate courts, the attorney's fee 
 
              is subject to the approval of a judge of the district court.
 
                    
 
              Iowa Code section 86.40 provides:  "All costs incurred in 
 
         the hearing before the commissioner shall be taxed in the 
 
         discretion of the commissioner."
 
              
 
              Workers' compensation statutes are to be liberally 
 
         interpreted to benefit the injured worker.
 
               
 
              [T]he primary purpose of the workers' compensation statute 
 
              is to benefit the worker and the workers' dependents insofar 
 
              as the statute permits.  McSpadden v. Big Ben Coal Co., 288 
 
              N.W.2d 181, 188 (Iowa 1980).  Thus the statute is to be 
 
              interpreted liberally with a view toward that objective. 
 
              Irish v. McCreary Saw Mill, 175 N.W.2d 364, 368 (Iowa 1970).
 
         
 
         Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981)
 
               
 
              "It is also true, as argued by appellant, that the workmen's 
 
         compensation statute is to be liberally construed, and where 
 
         possible evils would result under either of two constructions, 
 
         that which is to the advantage of the employee must control." 
 
         Haverly v. Union Const. Co., 18 N.W.2d 629, 632 (Iowa 1945).
 
               
 
                                     ANALYSIS
 
               
 
              On appeal CNA argues that the deputy erred in finding that 
 
         the employee in this proceeding, Clara Schexnayder, (hereinafter 
 
         referred to as the injured worker) had a cumulative injury.  CNA 
 
         argues that this case is not factually appropriate for the 
 
         application of the cumulative injury rule.  CNA's argument is not 
 
         convincing.  The injured worker in this case experienced pain and 
 
         numbness in her hand approximately one month after commencing a 
 
         job assignment where she unscrewed lids from jars.  The injured 
 
         worker sought medical treatment but missed work for only one-half 
 
         day from the time she commenced the new job until May 17, 1986. 
 
         (CNA was the insurance carrier for all relevant times after May 
 
         17, 1986.)  Nothing in the record indicates a traumatic event 
 
         that caused the injury.  The injured worker suffered a 
 
         compensable cumulative injury when she missed work for a 
 
         compensable period of time.  She missed work for a compensable 
 
         period of time after May 17, 1986, and CNA was the insurance 
 
         carrier at that time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On cross-appeal Chubb Group argues that it should be awarded 
 
         interest payments and attorneys' fees.  Clearly, no interest can 
 
         be allowed on payment of medical expenses.  See Klein v. Furnas 
 
         Electric Co., 384 N.W.2d 370 (Iowa 1986).
 
         
 
              Workers' compensation laws are for the benefit of the 
 
         injured worker.  When an injured worker is entitled to weekly 
 
         benefits, the benefits should be paid promptly.  Employers and 
 
         insurance carriers should be encouraged to promptly pay weekly 
 
         benefits.  In this case, Chubb Group paid weekly benefits to the 
 
         injured worker. These benefits were paid even though Chubb Group, 
 
         as found herein, was not ultimately liable and is to be 
 
         reimbursed by CNA.  Chubb Group paid weekly benefits that were 
 
         the liability of CNA.  In effect, CNA had use of money that was 
 
         properly Chubb Group's.  CNA should reimburse Chubb Group and pay 
 
         interest at the rate provided in Iowa Code section 85.30 from the 
 
         date Chubb Group paid benefits to the injured worker.  If CNA 
 
         were not required to pay interest, insurance carriers in similar 
 
         circumstances would not be encouraged to promptly pay weekly 
 
         benefits to injured workers.  If an insurance carrier is not 
 
         required to pay interest on the amount of weekly benefits, that 
 
         insurance carrier will gain a windfall at the expense of another 
 
         insurance carrier who promptly pays weekly benefits.  If Chubb 
 
         Group had not paid the weekly benefits to the injured worker, CNA 
 
         would have been responsible for paying the weekly benefits plus 
 
         interest to the injured worker.  CNA is only being required to 
 
         pay interest that it would have had to pay.  It is appropriate 
 
         that CNA pay Chubb Group interest from the time the weekly 
 
         benefits were paid.
 
         
 
              Chubb Group's argument that it is entitled to attorneys' 
 
         fees is not convincing.  There is simply inadequate 
 
         justification, statutory or otherwise, for awarding Chubb Group 
 
         attorneys' fees in this matter.  Assuming for the sake of 
 
         argument that either Iowa Code section 86.39 or 86.40 allowed for 
 
         attorneys' fees in this situation, those code sections provide 
 
         for the industrial commissioner to exercise discretion in 
 
         approving the fees.  There is no good reason why attorneys' fees 
 
         should be awarded.
 
         
 
                                 FINDINGS OF FACT
 
                   
 
              1.  The injured worker suffered a gradual and progressive 
 
         injury while working which resulted in a carpal tunnel release on 
 
         August 6, 1986.
 
                   
 
              2.  Chubb Group was the insurance carrier for the injured 
 
         worker's employer through May 17, 1986.
 
              
 
              3.  CNA was the insurance carrier for the injured worker's 
 
         employer for all times relevant after May 17, 1986.
 
              
 
              4.  The injured worker did not miss work for a compensable 
 
         period of time until after May 17, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              5.  The injured worker's medical expenses, healing period 
 
         and permanent partial disability benefits have been paid by Chubb 
 
         Group as follows:
 
                   
 
                      medical expenses      $3,089.03
 
                      weekly benefits        5,568.49
 
                                             $8,657.52
 
         
 
                                CONCLUSIONS OF LAW
 
                   
 
              Chubb Group is entitled to reimbursement of $8657.52 from 
 
         CNA.
 
              
 
              Chubb Group is entitled to interest on the reimbursement of 
 
         the weekly benefits from CNA and interest shall accrue from the 
 
         date paid by Chubb Group as provided in Iowa Code section 85.30.
 
              
 
              Chubb Group is not entitled to interest on the reimbursement 
 
         of medical expenses from CNA.
 
              
 
              Chubb Group is not entitled to attorneys' fees from CNA.
 
              
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
              
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That CNA reimburse Chubb Group eight thousand six hundred 
 
         fifty-seven and 52/100 dollars ($8,657.52) for a compensable 
 
         injury to Clara Schexnayder, the injured worker, pursuant to 
 
         section 85.21, Iowa Code (1987).
 
              
 
              That CNA pay Chubb Group interest on reimbursement of weekly 
 
         benefits from the date paid by Chubb Group.
 
         
 
              That CNA pay all costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 23rd day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Michael P. Jacobs
 
         Attorney at Law
 
         300 Toy National Bank Bldg.
 
         Sioux City, Iowa  51101
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            1000, 3800, 4200
 
                                            Filed August 23, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHUBB GROUP OF INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,                   File No. 832446
 
         
 
         vs.
 
                                                      A P P E A L
 
         CNA,
 
         
 
              Insurance Carrier,                   D E C I S I O N
 
         
 
         In The Matter of Clara
 
         Schexnayder, not a party,
 
         
 
         vs.
 
         
 
         Sioux Honey Association,
 
         not a party,
 
         
 
         
 
         1000
 
         
 
              Attorney fees were not awarded to one insurance carrier 
 
         which was reimbursed by a successor carrier for medical expenses 
 
         and weekly benefits under a section 85.21 proceedings.
 
         
 
         
 
         3800
 
         
 
              No reimbursement for interest on medical expenses under a 
 
         section 85.21 proceeding citing Klein v. Furnas Electric Co., 384 
 
         N.W.2d 370 (Iowa 1986).  Interest was allowed on reimbursement of 
 
         weekly benefits from the time weekly benefits were paid.
 
         
 
         
 
         4200
 
         
 
              Successor insurance carrier was ordered to reimburse for 
 
         medical expenses and weekly benefits for a cumulative injury. 
 
         Insurance carrier at time injured worker missed work for a 
 
         compensable period of time was ultimately responsible for 
 
         benefits.  Successor insurance carrier was also ordered to pay 
 
         interest on weekly benefits but was not liable for interest on 
 
         medical benefits nor liable for attorneys' fees.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         CHUBB GROUP OF INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
                                                   File No. 832446
 
         vs.
 
                                                   D E C I S I O N
 
         CNA,
 
                                                        O N
 
              Insurance Carrier,
 
                                                       85.21
 
         In The Matter of Clara
 
         Schexnayder, not a party,                 B E N E F I T S
 
         
 
         Sioux Honey Association,
 
         not a party,
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding under Iowa Code section 85.21 brought 
 
         by Chubb Group of Insurance Companies, insurance carrier, against 
 
         CNA Insurance Company, insurance Carrier, for reimbursement of 
 
         benefits paid to Clara Schexnayder for an injury arising out of 
 
         and in the course of her employment at Sioux Honey Association.  
 
         The claimant is not a party to the proceeding.  On March 31, 
 
         1988, the parties submitted a stipulated record and a stipulated 
 
         exhibit list.  Briefs have been filed by the respective parties.
 
         
 
              The record consists of 16 exhibits stipulated to by the 
 
         parties in their stipulated exhibit list.
 
         
 
              In addition to the stipulated exhibit list, the parties 
 
         stipulate to the following facts:
 
         
 
              1.  That claimant had an injury arising out of and in the 
 
         course of her employment which necessitated her having a carpal 
 
         tunnel release on August 6, 1986.
 
         
 
              2.  That Chubb Group of Insurance Companies was the 
 
         insurance carrier for Sioux Honey Association through May 17, 
 
         1986.
 
         
 
              3.  That CNA Insurance Company was the carrier for all 
 
         relevant times thereafter.
 
         
 
              4.  That all claimant's medical expenses, healing period and 
 
         permanent partial disability have been paid by Chubb Group of 
 
         Insurance Companies.
 
         
 
              5.  That in the event CNA is found liable for claimant's 
 
         injuries, Chubb Group should be reimbursed by CNA for all weekly 
 
         and medical expenses it has incurred.
 
         
 
              6.  That Chubb Group has incurred legal expenses which CNA 
 
         agrees are fair and reasonable.
 

 
         
 
         
 
         
 
         CHUBB GROUP OF INSURANCE COMPANIES V. CNA
 
         PAGE   2
 
         
 
         
 
         
 
              7.  That simultaneous briefs will be submitted in this 
 
         matter on April 15, 1988.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties are:  1) Which insurance 
 
         carrier is liable for benefits when a cumulative injury occurs 
 
         over a period of time and there is a successor insurance carrier; 
 
         2) Whether the payment of interest is due to an insurance carrier 
 
         from a successor insurance carrier for amounts expended in weekly 
 
         benefits and in medical expenses; and, 3) Whether the payment of 
 
         attorneys' fees and other legal expenses is due to an insurance 
 
         carrier from another insurance carrier for an action brought 
 
         under Iowa Code section 85.21.
 
         
 
                                 FACTS PRESENTED
 
         
 
              The claimant, Clara Schexnayder, commenced her employment 
 
         with Sioux Honey Association in July of 1979.  Initially, the 
 
         claimant had been hired to perform clean-up tasks on the night 
 
         shift.  In February or March of 1986, Ms. Schexnayder was 
 
         transferred to the day shift where she unscrewed the lids from 
 
         jars of honey.  Approximately one month after commencing this job 
 
         assignment, the claimant experienced pain and numbness in her 
 
         hand.  Nowhere does the record indicate there was a traumatic 
 
         event or events which triggered the claimants injury.
 
         
 
              On April 15, 1986, the claimant sought medical attention 
 
         from Dr. Bramlett Murphy, M.D., an internal medicine specialist. 
 
          At that time, the claimant was diagnosed as "osteoarthritis with 
 
         painful wrists and hands secondary to activity."  Medication was 
 
         prescribed for the claimant.
 
         
 
              The claimant continued to perform her tasks with the jar 
 
         lids.  Then on July 22, 1986, she again sought the medical 
 
         attention of Dr. Murphy who changed the claimant's medication and 
 
         ordered a nerve conduction test.
 
         
 
              The nerve conduction test was subsequently interpreted by 
 
         Dr. B. Krysztofiak, M.D., who diagnosed the claimant's condition 
 
         as:
 
         
 
              The motor and sensory distal latencies of the right 
 
              median nerve are increased, the amplitude of sensory 
 
              action potentials is reduced and there is marked 
 
              slowing of conduction across the wrist consistent with 
 
              moderately severe carpal tunnel syndrome.  The ulnar 
 
              and radial nerve conduction tests on the right side are 
 
              normal.
 
         (Joint Exhibit 5)
 
         
 
              The claimant was then referred to Dr. N. R. Lentini, M.D., 
 
         who performed surgery on her right wrist for carpal tunnel 
 
         syndrome.  Dr. Lentini subsequently gave the claimant a five 
 
         percent permanent impairment to her right hand.
 
         
 
              Chubb Group with no admission of any liability paid the 
 
         following to Ms. Schexnayder:  medical expenses totalling 
 
         $3,089.03 and weekly benefits of $5,568.49.
 
         
 
                                 
 
         
 

 
         
 
         
 
         
 
         CHUBB GROUP OF INSURANCE COMPANIES V. CNA
 
         PAGE   3
 
         
 
                                 
 
                                 APPLICABLE LAW
 
 
 
              This action was brought pursuant to Iowa Code section 85.21. 
 
         Section 85.21 provides in relevant portion;
 
         
 
              1.  The industrial commissioner may order any number or 
 
              combination of alleged workers' compensation insurance 
 
              carriers and alleged employers, which are parties to a 
 
              contested case or to a dispute which could culminate in 
 
              a contested case, to pay all or part of the benefits 
 
              due to an employee or an employee's dependent or legal 
 
              representative if any of the carriers or employers 
 
              agree, or the commissioner determines after an 
 
              evidentiary hearing, that one or more of the carriers 
 
              or employers is liable to the employee or to the 
 
              employee's dependent or legal representative for 
 
              benefits under this chapter or under chapter 85A or 
 
              85B, but the carriers or employers cannot agree, or the 
 
              commissioner has not determined which carriers or 
 
              employers are liable.
 
         
 
                 ...
 
         
 
              3.  When liability is finally determined by the 
 
              industrial commissioner, the commissioner shall order 
 
              the carriers or employers liable to the employee or to 
 
              the employee's dependent or legal representative to 
 
              reimburse the carriers or employers which are not 
 
              liable but were required to pay benefits.  Benefits 
 
              paid or reimbursed pursuant to an order authorized by 
 
              this section do not require the filing of a memorandum 
 
              of agreement.  However, a contested case for benefits 
 
              under this chapter or under chapter 85A or 85B shall 
 
              not be maintained against a party to a case or dispute 
 
              resulting in an order authorized by this section unless 
 
              the contested case is commenced within three years from 
 
              the date of the last benefit payment under the order.  
 
              The commissioner may determine liability for the 
 
              payment of workers' compensation benefits under this 
 
              section.
 
         
 
              Under section 85.21, the commissioner may determine which 
 
         insurance carrier is liable for the payment of weekly 
 
         compensation benefits and medical expenses.
 
         
 
              In order to receive workers' compensation, it is not 
 
         necessary for a claimant to prove a sudden unexpected traumatic 
 
         event; it is sufficient to establish that a particular disability 
 
         is caused by a work activity which can be gradual and progressive 
 
         in nature.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1965).
 
         
 
              The Iowa Supreme Court, in McKeever, upheld this agency's 
 
         adoption of the cumulative injury rule for application in 
 
         tactually appropriate cases.  The McKeever Court cited Larson's 
 
         Workmen's Compensation Law, section 39.50 at 11-350.28 for two 
 
         general rules as to when the injury occurs for time limitation 
 
         purposes in cumulative trauma cases.  Under the Larson test, the 
 
         injury may occur when pain prevents the employee from continuing 
 
         to work or when pain occasions the need for medical treatment.  
 
         The Court adopted the Larson test that the injury occurs when 
 
         pain prevents the employee from continuing work reasoning that 
 
         "clearly the employee is disabled and injured when, because of 
 
         pain or physical disability he can no longer work."  McKeever at 
 
         374.
 

 
         
 
         
 
         
 
         CHUBB GROUP OF INSURANCE COMPANIES V. CNA
 
         PAGE   4
 
         
 
         
 
         
 
              When a particular disability is gradual or progressive in 
 
         nature, the liable insurance carrier is the carrier which covers 
 
         the risk at the time of the most recent injury or exposure which 
 
         bears a causal relation to the disability.  McKeever at 376.
 
         
 
                                     ANALYSIS
 
         
 
              Chubb Group of Insurance Companies, insurance carrier, has 
 
         met its burden in proving that CNA, insurance carrier, is liable 
 
         for the payment of weekly compensation benefits and medical 
 
         expenses for the claimant, Clara Schexnayder.
 
         
 
              Chubb Group was the insurance carrier through May 17, 1986. 
 
          After that date, CNA was the carrier.
 
         
 
              The record establishes that approximately one month after 
 
         the claimant began the task of unscrewing lids from jars of 
 
         honey, the claimant experienced pain and numbness in her right 
 
         hand.  While the claimant sought medical treatment on April 15, 
 
         1986 for her hand, she was not prevented from returning to work.  
 
         She continued working until July 22, 1986, when she again sought 
 
         medical attention.  At this point the claimant ceased work 
 
         because of the pain she was experiencing.  Under the McKeever 
 
         test, it was the claimant's inability to work which placed full 
 
         liability upon the carrier to cover the risk.  The carrier 
 
         covering the risk at the time was CNA.
 
         
 
              Under McKeever, Chubb Group was not liable for any 
 
         compensable injury to the claimant. however, since Chubb Group, 
 
         with no admission of any liability paid medical expenses totaling 
 
         $3,089.03 and weekly benefits of $5,568.49 under section 85.21, 
 
         Chubb is now entitled to a reimbursement for the same sum from 
 
         CNA.  Chubb Group has also asked for interest on the payments 
 
         made to the claimant.  Iowa Code section 85.30 allows a claimant 
 
         interest payments if compensation which is payable is not paid 
 
         when due.  Similar provisions are not made for the payment of 
 
         interest from one carrier to another.
 
         
 
              In addition to the interest payments requested by Chubb 
 
         Group, Chubb has also requested the payment of attorneys' fees.  
 
         Under Iowa law, attorney fees are not ordinarily recoverable from 
 
         the opposing party in litigation.  However, the fees may be 
 
         recoverable under special statutes.  Turner v. Zip Motors, 245 
 
         Iowa 1091, 1098, 65 N.W.2d 427 (1954).
 
         
 
              Section 86.39 does provide the industrial commissioner with 
 
         the power to approve claims for legal fees and liens.  This 
 
         section, however, is limited to approving fees for claimant's 
 
         attorneys.  Attorneys' fees do not appear to be appropriate in 
 
         this instance.  Chubb Group is not entitled to attorneys' fees.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the stipulation, the evidence 
 
         presented, and the principles of law previously stated, the 
 
         following findings of fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant suffered a gradual and progressive 
 
         injury while working for defendant which resulted in a carpal 
 
         tunnel release on August 6, 1986.
 
         
 
              FINDING 2.  The parties stipulated that the injury arose out 
 

 
         
 
         
 
         
 
         CHUBB GROUP OF INSURANCE COMPANIES V. CNA
 
         PAGE   5
 
         
 
         
 
         of and in the course of claimant's employment.
 
         
 
              FINDING 3.  The claimant suffered pain and as a result was 
 
         unable to work for defendant from July 22, 1986 to January 26, 
 
         1987.
 
         
 
              CONCLUSION A.  The injury occurred when the claimant was 
 
         unable to work for defendant because of the pain.
 
         
 
              FINDING 4.  On July 22, 1986, the date of the injury, 
 
         insurance carrier for the employer was CNA.
 
         
 
              CONCLUSION B.  The carrier responsible for the injury on 
 
         July 22, 1986 is CNA.
 
         
 
              FINDING 5.  The claimant's medical expenses, healing period 
 
         and permanent partial disability have been paid by Chubb Group of 
 
         Insurance Companies as follows:
 
         
 
              medical expenses           $3,089.03
 
              weekly benefits             5,568.49
 
                    Total                $8,657.52
 
         
 
              CONCLUSION C.  Chubb Group is entitled to a reimbursement of 
 
         $8,697.52.
 
         
 
              CONCLUSION D.  Chubb Group is not entitled to interest 
 
         payments from, CNA.
 
         
 
              CONCLUSION E.  Chubb Group is not entitled to attorneys' 
 
         fees from CNA.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, CNA is to reimburse unto Chubb Group eight 
 
         thousand six hundred fifty-seven and 52/100 dollars ($8,657.52) 
 
         for a compensable injury to Clara Schexnayder pursuant to section 
 
         85.21, Iowa Code (1987).
 
         
 
              Costs are taxed to CNA pursuant to Industrial Commissioner 
 
         Rule 343-4.33.
 
         
 
              CNA shall file a final report upon payment of this award.
 
         
 
         
 
              Signed and filed this 20th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        MICHELLE A. McGOVERN
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael P. Jacobs
 
         Attorney at Law
 
         300 Toy National Bank Bldg.
 
         Sioux City, Iowa 51101
 
         
 
         Ms. Judith Ann Higgs
 

 
         
 
         
 
         
 
         CHUBB GROUP OF INSURANCE COMPANIES V. CNA
 
         PAGE   6
 
         
 
         
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P. O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1000; 4200
 
                                                 Filed July 20, 1988
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHUBB GROUP OF INSURANCE
 
         COMPANlES,
 
         
 
              Insurance Carrier,
 
                                                  File No. 832446
 
         vs.
 
                                                  D E C I S I O N
 
         CNA,
 
                                                       O N
 
              Insurance Carrier,
 
                                                      85.21
 
         In The Matter of Clara
 
         Schexnayder, not a party,                B E N E F I T S
 
         
 
         vs.
 
         
 
         Sioux Honey Association,
 
         not a party,
 
         
 
         
 
         4200
 
         
 
              A successor insurance carrier was liable for benefits when a 
 
         cumulative injury occurred over a period of time.
 
         
 
         1000
 
         
 
              Attorneys' fee were not awarded to one insurance carrier 
 
         from a successor carrier when a cumulative injury occurred over a 
 
         period of time.