BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD R. SHAWHAN : : Claimant, : : File No. 858691 VS. : : A R B I T R A T I 0 N SUBURBAN MOVING, : : D E C I S I 0 N Employer, : : and : : BITUMINOUS INSURANCE COMPANIES, : : Insurance Carrier, : Defendants : INTRODUCTION This is a proceeding in arbitration brought by claimant Donald R. Shawhan, against Suburban Moving, employer, and Bituminous Insurance Companies, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act for an alleged injury on or about November 3, 1987. This matter was scheduled to come on for hearing at 8:30 a.m. on July,17, 1989, at the industrial commissioner's office in Des Moines, Iowa. The undersigned was present. Neither claimant nor defendant appeared. SUMMARY OF THE EVIDENCE Claimant failed to present any evidence the allegations found in his original notice. At the time of hearing, neither an agreement nor a request for continuance was on file. Claimant has the burden of proving by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). FINDINGS OF FACT WHEREFORE, it is found: 1. Neither claimant nor defendant appeared at the scheduled time and place of hearing. SHAWHAN VS. SUBURBAN MOVING Page 2 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable work injury. ORDER THEREFORE, IT IS ORDERED: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. Claimant take nothing from this hearing. Costs are taxed to the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 17th day of July, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert Pratt Attorney at Law 1913 Ingersoll Des Moines, Iowa 50309 Mr. William D. Scherle Attorney at Law 803 Fleming Bldg. Des Moines, Iowa 50309 51400; 51402 Filed July 17, 1989 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD R. SHAWHAN : : Claimant, : : File No. 858691 VS. : : A R B I T R A T I O N SUBURBAN MOVING, : : D E C I S I O N Employer, : : and : : BITUMINOUS INSURANCE COMPANIES, Insurance Carrier, Defendants 51400, 51402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. 9998 Filed December 19, 1991 BYRON K. ORTON MDM before the iowa industrial commissioner ____________________________________________________________ : ROBERT SOUKUP, : : Claimant, : : vs. : : D and S SHEET METAL, INC., : File Nos. 927412/946025 : Employer, : : and : A P P E A L : SECURA INSURANCE CO., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ ROBERT SOUKUP, : : Claimant, : : vs. : : File No. 858701 MARESH SHEET METAL WORKS, : : Employer, : : and : D E C I S I O N : HAWKEYE SECURITY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ----------------------------------------------------------------- 9999 Summary affirmance of deputy's decision filed May 1, 1991. Page 1 51100 53200 54100 52203 51802 51804 52209 52500 52800 52402 Filed May 1, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : ROBERT SOUKUP, : : Claimant, : : vs. : : File Nos. 927412 & 946025 D and S SHEET METAL, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SECURA INSURANCE CO., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ _____ : ROBERT SOUKUP : : Claimant : : vs. : File No. 858701 : MARESH SHEET METAL WORKS, : : Employer, : A R B I T R A T I O N : and : : D E C I S I O N HAWKEYE SECURITY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Page 2 Defendants. : ___________________________________________________________ 51100 In file number 945025 claimant alleged a neck injury, but failed to prove his case in that symptoms didn't appear until months after leaving employer's employment. Dr. Walker's causal connection rejected. Treating doctor found no causal connection and was more credible. 53200 54100 52203 In file number 858701 claimant entitled to 15 percent industrial disability as against the fund with following calculations 15% x 500 = 75 weeks minus 16.5 weeks (1987 right lower extremity) minus 6.0 weeks (1983 left foot) minus 37.5 weeks (1980 left upper extremity) TOTAL 15 weeks 858701 liability Occupational disease theory asserted by fund was rejected. In file number 927412 multiple issues were raised. 51100 51802 51804 52209 52500 Claimant found to have sustained injury to right shoulder which was body as a whole and entitled to healing period and medical benefits. Claimant awarded 15 percent industrial as against employer. Claimant was age 55, GED, manual labor experience, with impairment of 9 percent body as a whole. Claimant wanted early retirement. 52800 54100 52402 52203 Allegations of lack of notice, statute of limitations, occupational disease and odd-lot were rejected as no factual basis existed. 53200 Second injury fund liability found in shoulder injury which went to body as a whole because a loss of use was found in upper extremity. Claimant's injuries total 40 percent industrial disability. 40% x 500 = 200 weeks minus 60 weeks 858701 scheduled member minus 15 weeks 858701 second injury fund minus 75 927412 employer TOTAL 50 weeks 927412 second injury fund liability Page 1 before the iowa industrial commissioner ____________________________________________________________ : MILO BEUTHIEN, : : Claimant, : : vs. : : File No. 858762 CROUSE CARTAGE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Milo Beuthien, claimant, against Crouse Cartage Company, employer, and Liberty Mutual Insurance Company, insurance carrier, defendants for benefits as the result of an alleged injury which occurred on January 7, 1987. A hearing was held at Des Moines, Iowa, on April 10, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Gregory T. Racette. Defendants were represented by William C. Hoffmann. The record consists of the testimony of Milo Beuthien, claimant; Jessie D. Beuthien, claimant's wife; Jeff Crouse, director of insurance and compliance; and joint exhibits 1 through 12. Both attorneys presented excellent trial briefs at the time of the hearing. The deputy ordered a transcript of the hearing. Defendants' attorney also submitted an excellent posthearing brief. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on January 7, 1987, which arose out of and in the course of employment with employer. Whether claimant is entitled to temporary disability benefits and, if so, the extent of benefits to which he is entitled. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits and, if so, the extent of benefits to which he is entitled, to include, whether claimant is an odd-lot employee. Page 2 preliminary matter The parties reached agreement on two issues shown on the hearing assignment order before the hearing began (1) whether claimant is entitled to medical benefits and (2) whether defendants are entitled to a credit for benefits paid under a nonoccupational group health plan. Their agreement is reflected on the prehearing report signed by both attorneys (transcript page 9). findings of fact injury It is determined that claimant sustained an injury on January 7, 1987, which arose out of and in the course of employment with employer. Defendants' attorney stated in his opening statement, "We have never disputed the alleged injury of January 7, 1987." (tr. p. 22). At the conclusion of his hearing brief and description of issues, defendants' attorney stated: The Employer and Insurance Carrier do not contend and have never contended that the Claimant was not entitled to some compensation benefits as a result of the incident of January 7, 1987, but it is their position and contention that the Claimant is not permanently and totally disabled, is not entitled to the benefits of the Odd Lot Doctrine and is in fact capable of gainful employment and made a deliberate choice not to accept such employment, primarily because of his desire to live in Wisconsin rather in Carroll, Iowa. (defendants' brief and description of issues, page 8) The hearing assignment order indicated that the parties would attempt to stipulate that claimant sustained an injury arising out of and in the course of employment with employer (see hearing assignment order paragraph two, stipulations). Nevertheless, the prehearing report shows that injury is disputed (see paragraph two, prehearing report). At the hearing, the deputy reviewed the issues shown on the prehearing report and defendants' counsel agreed that whether claimant sustained an injury on January 7, 1987, which arose out of and in the course of employment with employer was a hearing issue (tr. pp. 7 & 8). Therefore, a determination will be made on this issue. Claimant testified that he felt a pull in his lower back while lifting a 167-pound hood part on the dock with another employee, but he did not mention it to the other employee, Jerry Nepple, at that time (tr. pp. 51-61; joint exhibit 8). Claimant testified that he is five foot eleven inches tall and weight 177 pounds which is 10 to 12 pounds Page 3 lighter than at the date of the injury. Nepple testified by deposition that he helped claimant move a crate on or about this date, but he did not notice anything unusual at that time. Approximately 10 to 14 days later, claimant told Nepple that he might have hurt his back moving that crate. Before that, claimant had no back complaints and after that claimant complained about once a day about his back (ex. 3, pp. 8-18). Claimant testified that as time went on, he felt a dagger-like pain in his back while lying down and when he tried to get out of bed. Claimant related that when they noticed he was having problems at work, he reported the injury to Don Dreessen, safety director, about eight or ten days after the injury date (tr. p. 62). Dreessen testified by deposition on March 5, 1990, that claimant did report the injury to him, but he did not recall how soon after the injury it was reported. Dreessen related that he told the owner, Paul Crouse, and Crouse instructed Dreessen that it was to be handled as a medical claim (ex. 4, pp. 5-11, 17 & 18). Dreessen acknowledged that he completed the first report of injury which shows an injury date of January 7, 1987; that the disability began on February 12, 1987; and employer first knew of the condition on February 12, 1987 (ex. 4, p. 17; ex. 4, deposition ex. 1). Dreessen further testified that he obtained the information for the first report of injury from claimant and Nepple (ex. 4, p. 18). Dreessen explained that it was the policy of Mr. Crouse to try to help his employees on the management level and that is why he treated this as a medical claim and kept claimant on full pay until claimant's disability continued beyond July of 1987 (ex. 4, pp. 9, 10, 17, 18, 20, & 26-28; tr. pp. 121 & 122). Dreessen did not know exactly when claimant reported the injury to him (ex. 4, p. 28). Claimant did see J.P. Jensen, M.D., for pain over the right ilium and the right hip on February 3, 1987, and received an x-ray which showed no fractures, dislocations or acute bony changes. A number of moderate degenerative changed were noted throughout the lumbar spine (ex. 1, pp. 4 & 5). Claimant's last day of work was February 11, 1987 (tr. p. 41). Claimant first missed work and went to the Mayo Clinic with the consent of employer on February 12, 1987, at which time he reported lifting a very heavy crate with a coworker and felt a dull ache in his right buttock on the following morning (tr. pp. 65 & 66; ex. 1, pp. 17, 26, and 31). An x-ray of the lumbosacral spine on February 12, 1987, showed degenerative disc disease at the L-4 interspace; hypertrophic changes of the lumbar spine; degenerative change in the facet joints; and lumbo scoliosis (ex. 1, p. 15). Allen J. Aksamit, Jr., M.D., a neurologist, concluded that claimant's chronic disc and hypertrophic spurs were superimposed with an acute exacerbation (ex. 1, p. 32). After this, all the orthopedic surgeons who examined or treated claimant proceeded on the history of Page 4 this injury as the precipitating event for claimant's subsequent problems (ex. 1, pp. 69, 71, 73 and 83). Defendants presented no evidence of any other cause for claimant's injury. The health insurance carrier and the workers' compensation carrier were the same insurance company and no evidence was introduced of any other accidents, injuries, or back problems. Claimant denied in his testimony at the hearing and in interrogatories that he had ever suffered any prior back problems of any kind at any other time. Claimant's testimony was not controverted or rebutted. On the contrary, claimant had been active in softball, basketball and volleyball and worked out on the rowing machine at his home (tr. pp. 33 & 34). Wherefore, it is determined that claimant did sustain an injury on January 7, 1987, which arose out of and in the course of employment with employer when he injured his lumbosacral spine while handling a crate which weighed 167 pounds with a coworker. causal connection-entitlement-temporary disability The parties stipulated that the injury was the cause of temporary disability. It is now determined that claimant is entitled to healing period benefits for the period from February 12, 1987, when claimant first lost time from work to go to the Mayo Clinic, until November 2, 1987, when David S. Haskell, M.D., an orthopedic surgeon, evaluated claimant, awarded a five percent permanent impairment rating and stated that claimant would not benefit from any further treatment (ex. 1, p. 72). This is a period of 37.571 weeks. Burton M. Onofrio, M.D., an orthopedic surgeon who performed a laminectomy on April 1, 1987, stated on April 9, 1987, that he anticipated claimant would be temporarily totally disabled for approximately three months (ex. 1, p. 69). Later, Dr. Onofrio stated on August 17, 1987, he anticipated claimant could return to work in approximately one month (ex. 1, p. 22). Therefore, Dr. Haskell's determination of maximum medical improvement on November 2, 1987, is well within the anticipated guidelines of the operating surgeon. Furthermore, Dr. Aksamit, the treating neurologist at the Mayo Clinic stated on November 16, 1987, that he too, felt that claimant had likely reached maximum medical recovery. Wherefore, it is determined that claimant is entitled to 37.571 weeks of healing period benefits for the period from February 12, 1987 to November 2, 1987. causal connection-permanent disability A myelogram and CT scan at the Mayo Clinic on March 31, 1987, disclosed considerable degenerative arthritis in the low lumbar area with bony spurring and ligamentous hypertrophy which was causing stenosis at the third and fourth interspaces. In addition, an extruded intervertebral Page 5 disc was discovered at L3 and L4 (ex. 1, p. 15). A laminectomy was performed on April 1, 1987, by Dr. Onofrio (ex. 1, p. 24). Dr. Aksamit made no award of permanent impairment (ex. 1, pp. 65-68). Dr. Onofrio did not make an impairment award, but he did state that when claimant returned to work he should not be involved with activities requiring lifting, pushing or pulling more than 25 pounds (ex. 1, p. 69). On November 2, 1987, Dr. Haskell stated that claimant had a work-related aggravation of an underlying-preexisting degenerative process in the lumbar spine. He also stated that claimant had evidence of a herniated disc at the L3-L4 level which appears to be work related. He determined that claimant had sustained a five percent permanent impairment to the body as a whole as a result of his herniated nucleus pulposus and subsequent lumbar laminectomy. In addition, he said that his current disability reflected degenerative changes of the degenerative disc disease and degenerative facet disease at L4-5 and L5-S1 levels. He said that claimant's work activity should preclude repetitive lifting, bending, twisting and turning, and lifting more than 35 pounds on a regular basis (ex. 1, p. 72). Thus, it would appear that in addition to the five percent permanent impairment rating which was awarded for the herniated nucleus pulposus and subsequent lumbar laminotomy, Dr. Haskell felt that the degenerative disc disease and degenerative facet disease, which were aggravated by this injury, were entitled to an additional amount of current disability (ex. 1, p. 72). Claimant was examined by D. Scott Sellinger, M.D., an orthopedic surgeon, on August 17, 1988. Dr. Sellinger found, "I think Mr. Beuthien's primary work-related problem was extrusion at the L3-4 level...I do, however, feel that to a reasonable degree of medical probability, he aggravated the lower levels." (ex. 1, p. 74). After reviewing the radiological reports from Mayo Clinic which showed degenerative disc disease at L4-5 and some changes at 5-1 as well as facet disease and a list to the left, probably secondary to asymmetrical collapse of the 4-5 disc, Dr. Sellinger stated: At any rate, all of this would suggest that Mr. Beuthien had significant disease in his lower back prior to the injury, as I alluded to in my initial report. I also feel that to a reasonable degree of medical probability he probably aggravated these. It would seem that his current problems are the lower discs at this time which I think were aggravated with the original injury. Page 6 Because of this, I would assign him an additional five (5) per cent [sic] permanent partial as compared to the body as a whole, for a total of ten (10) per cent [sic]. I think this is a reasonable amount in that the normal five per cent [sic] that is assigned is normally for a good result and with his chronic com plaints and ongoing pain I don't feel that I can say that he has had a good result. In addition, he has exacerbated other levels. (exhibit 1, page 75) Claimant was examined by Thomas E. Ryan, M.D., an orthopedic surgeon, on August 16, 1989. Dr. Ryan also noted that claimant had degenerative changes distal to the L3-4 and L4-5 defect for which surgery was performed at the Mayo Clinic. Dr. Ryan opined, "However, with additional time, there was interspace settling and the problem of back pain increased and interfered with his return to work." (ex. 1, p. 83). Dr. Ryan diagnosed (1) degenerative arthritis of the lumbar spine and (2) history of acute sciatica with confirmed disc defect from a lifting effort at work on January 7, 1987. He said the surgery addressed the disc defect and did achieve its purpose in relieving the radiating leg pain. He added, "Unfortunately, there was subsequent settling at the lumbar spine with progression of the hypertrophic arthritis, so that the patient now has a disabling spinal canal stenosis." (ex. 1, p. 84). He stated that claimant's permanent impairment was much greater than the scheduled minimum for a successful lumbar laminectomy, because claimant had a late result which was admittedly poor, and he has changes at multiple levels. Dr. Ryan stated that claimant not only has the surgical residuals at the level of the disc decompression, but he also had permanent and progressive x-ray changes so that he estimated his permanent impairment at 20 percent to the body as a whole which could be significantly reduced with a successful spine fusion. He added that claimant could not perform dock work or duties in the shop area, but he could perform office area work which is compatible with his physical state at this time (ex. 1, pp. 84 & 85). On February 20, 1990, Dr. Ryan repeated that after the surgery claimant had disabling pain on the left side which he at tributed to interspace settling following the laminectomy (ex. 1, p. 89). He concluded by saying: The current impairment is attributed to the injury of 1-7-87 and to the subsequent surgery of 4-2-87 [sic] and the 20% estimate is based upon the residuals of surgery, the x-ray changes, the obvious list and flex ion deformity, the impaired flexibility in the lower back, and the lack of endurance for both standing and sitting activities." (exhibit 1, page 90) Page òòò 7 Thus, all four orthopedic surgeons, Dr. Onofrio, Dr. Haskell, Dr. Sellinger and Dr. Ryan all made statements which establish that claimant sustained a permanent impairment as a result of this back injury, the surgery, the sequelae of the surgery and the aggravation of the degenerative disc disease. Dr. Haskell, Dr. Sellinger and Dr. Ryan specifically stated that the injury, surgery and sequelae aggravated claimant's preexist ing degenerative arthritis and was the cause of additional permanent impairment. Wherefore, it is determined that the injury of January 7, 1987, was the cause of permanent disability. entitlement-permanent disability It is determined that claimant has sustained a 35 percent industrial disability to the body as a whole and is entitled to 175 weeks of permanent partial disability benefits. In summary, we have a 5 percent plus permanent impairment rating by Dr. Haskell, a 10 percent permanent impairment rating by Dr. Sellinger and a 20 percent permanent impairment rating by Dr. Ryan. Dr. Ryan has recommended a lumbar fusion. Employer has agreed to pay for it if it will help claimant (tr. p. 208). Claimant has declined to receive the surgery because of the fear of paralysis and has declined to have it unless his back pain progresses to the place that he cannot endure it (tr. p. 140). Claimant was paralyzed for approximately five hours after his third epidural steroid injection ordered by Dr. Sellinger (tr. pp. 92 & 93). With respect to restrictions, Dr. Onofrio said that claimant should not lift, push or pull more than 25 pounds. Dr. Haskell said that claimant's work activities should pre clude repetitive lifting, bending, twisting and turning and lift ing more than 35 pounds on a regular basis. Dr. Sellinger performed a medical assessment of ability to do work-related activities (physical) and reported on April 18, 1989, that claimant could occasionally lift 25 pounds and fre quently lift 10 pounds. He could stand one to three hours per day and that with respect to sitting he should alternate between sitting and standing. He concluded by saying that the patient has severe degenerative disc disease of the lumbar spine and that he had referred him for consideration of a laminectomy and fusion (ex. 1, pp. 81 & 82). Dr. Ryan determined that claimant should not perform dock work, shop work or drive, but he could perform office area work. Later, he stated that claimant could drive in the vicinity of his employment at Carroll, Iowa, but it would not be safe for claimant to make regular trips between there and his summer home in Wisconsin (ex. 1, p. 86). Claimant's home at Waldo, Wisconsin, is approximately 415 miles from Carroll and his summer cottage at Waupaca is approxi Page òòò 8 mately 340 miles from Carroll, Iowa. Claimant and employer had an agreement that claimant could live in Wisconsin and commute to Carroll, Iowa. Moreover, claimant testified, "Paul Crouse allowed me to work through Thursday and then fly back and fourth and just put in the extra hours that would be an equivalent to the full work week in four days." (tr. p. 44). During the course of his employment with employer, claimant rented a farm house, a house and several apartments for when his family came to Carroll to live with him and he rented a sleeping room when he stayed in Carroll alone (tr. pp. 43-45). Claimant was hired by employer to be their claim adjuster claim agent (tr. p. 40) on May 5, 1980 (tr. p. 112), and to supervise the overage, salvage and damage department. A detailed job description is given at exhibit 5, interrogatory six. Claimant actively worked investigating and processing damaged cargo claims and supervised other persons in this department (tr. pp. 45 & 46; ex. 5, interrogatory answers 5 and 6). The job also involved walking, sitting, standing, and lifting 75 to 100 pounds, typically 70 to 80 pounds. There was a lot of bending and stooping and some occasional pushing and pulling (tr. pp. 47-51). Claimant last worked for employer on February 11, 1987. Thus, he was employed by employer for approximately seven years. Claimant denied, and there was no evidence, of any prior back problems, but on the contrary, claimant engaged in several sports. Claimant testified that he paid rent on his sleeping room in Carroll as late as March of 1988 because he was hoping to get back to work with employer in Carroll (tr. p. 86). Jeff Crouse, director of insurance and compliance wrote to claimant on July 27, 1988, as follows: I have just had an opportunity to review your injury with Liberty. It is my understanding that the Dr. has cleared you to return to work with a 25 lb. lifting restriction. At this time we would ask you to return to your job with the understanding that if you need to go beyond the lifting restriction you simply get another person in the office to do it for you. Hope everything is going well for you. Hope to hear from you very soon. (exhibit 2, page 131) Claimant testified that he felt that he was unable to return to work because of low back pain and left leg pain which followed the surgery that did, in fact, clear up his right leg pain. It was after this letter that claimant treated with Dr. Sellinger who ordered another myelogram and CT scan, tried three epidural steroid injections and eventually recommended the lumbar fusion. Dr. Sellinger did not think that claimant should be working (ex. 1, p. 78). Claimant testified at hearing and also told Dr. Ryan that he could only stand for five minutes and sit for 15 minutes (tr. p. 89; ex. 1, pp. 73 & 89). On December 7, 1988, Dr. Sellinger did not feel that claimant should be working, but at the time of his physical capacity examination on April 18, 1989, there was no indication that claimant could not work within the Page òòò 9 limitations of lifting 25 pounds occasionally and 10 pounds fre quently and that he could stand one to three hours in and eight-hour day, but he should alternate sitting and standing (ex. 1, p. 81). Dr. Ryan said that office work was compatible with claimant's physical state on August 16, 1989 (ex. 1, p. 85). Claimant contended he did not return to work in July of 1988 because Dr. Ryan told him not to drive a motor vehicle and, therefore, he could not commute (tr. p. 97). However, claimant earlier testified that he commuted by airplane between Carroll, Iowa, and his home in Wisconsin (tr. p. 117). Claimant's wife testified that claimant has a great deal of pain, sleep disturbance, and inability to persist in any activity for any length of time. She is opposed to the lumbar fusion because there is a possibility of permanent paralysis (tr. pp. 163-176). At the time of the hearing, claimant was employed by Seymour Transfer on a part-time basis averaging four to five hours a day working three days a week. He is allowed to set his own hours and select the days which he works. He is adjusting cargo claims as he did for employer. There is no lifting. He can sit and stand or walk or change position at will. He drives to and from work 35 miles one way. He earns $1000 a month (tr. pp. 97-101, 144 & 145). In addition, claimant elected to take early social security at age 62 and one week prior to the hearing he learned that he was awarded social security disability benefits. Claimant was receiving $735 a month in regular social security benefits at the time of the hearing. He did not know what affect disability social security would have on the amount (tr. pp. 142-143). Claimant contends he is not able to work eight hours a day (tr. p. 100). However, no physician has stated that claimant is unable to work eight hours a day. Although claimant established that he was fearful about returning to work for employer, and that he was restricted to lifting no more than 25 pounds, there is no medical evidence that would preclude claimant from returning to work with employer and performing office work pursuant to the offer made in July of 1988. Thus, claimant is not foreclosed from performing his prior employment as a cargo claims adjuster, but his ability to stand, sit, walk and lift in performing that job has been significantly reduced which results in a significant loss of earning capacity. Furthermore, it is the opinion of this deputy, based upon all the evidence and after seeing and hearing the witnesses, that claimant lost the incentive to commute to Carroll, Iowa, some 340 to 415 miles from his home in Wisconsin, on account of the physi cal problems he encountered after this injury. Claimant's loss of incentive to commute is certainly understandable, if not rea sonable, nevertheless, employer has offered to reemploy claimant, but claimant, for reasons personal to himself, has chosen not to accept the offer. However, it was claimant's election and choice to choose to work in Carroll, Iowa, and commute back and forth from Wisconsin instead of establish a home in Carroll, Iowa, where his employment was (tr. p. 147). Page òòò 10 There is evidence that claimant requested to perform the job in Wisconsin by using an 800 telephone number or by working at one of employer's terminals near his home. Employer did not find these arrangements agreeable and there is no obligation on the part of the employer to an employee who agreed to commute, to find employment for claimant in the area of his home (tr. pp. 112-113). Claimant testified that he believed that he was terminated by employer because when he submitted health claims, the insur ance carrier, also Liberty, denied the claim because he was ter minated (tr. p. 126). However, claimant admitted that he never received any word from employer that his job no longer existed (tr. p. 137). Claimant testified that when he received the COBRA letter from Gordon Headlee, vice-president finance, dated February 21, 1989, he interpreted that to mean that he was termi nated (tr. p. 156). Defendants, however, contended that the COBRA letter was not a termination letter but only an opportunity to continue his health insurance by paying the premiums himself (tr. p. 161). Jeff Crouse denied that claimant was terminated. He also stated that claimant never approached the company to work there again (tr. pp. 196 & 197). Crouse also testified that the COBRA letter is sent out for reasons other than termination such as when an employee reduces his hours (tr. p. 198) and that is why the COBRA letter was mailed (tr. p. 199). Otherwise, Crouse did not know why the COBRA letter was sent because he did not send it. He had no knowledge that claimant was ever terminated (tr. pp. 220-202). Crouse denied that claimant had been permanently replaced because Ray Schonberger, who formerly held the position and had retired, was only called back to work to replace claimant until claimant could return to work. Schonberger is 72 years of age (tr. p. 203). On December 26, 1989, Leonard O. Weaver III, safety director for employer, wrote to claimant that Dr. Ryan had authorized him to perform office work and that he could drive to and from work in the Carroll area. Weaver's letter stated that claimant could return to work within Dr. Ryan's restrictions and that other people were available to perform any manual labor required in his job. Claimant was requested to respond within ten days (ex. 2, p. 144). Crouse did not know whether claimant responded to that letter or not, but could state that the offer he made on July 27, 1988, was still open (tr. pp. 205 & 206). In conclusion, it is determined that claimant did not estab lish that he was permanently replaced in his job or that he was in fact definitely terminated from his employment even though there is some evidence of it when his health claims were denied for the reason that he was terminated. It is determined that claimant was offered the opportunity to return to work in July of 1988 and again in November of 1989 within the restrictions im posed by Dr. Onofrio, Dr. Sellinger and Dr. Ryan and claimant did not elect to accept these offers. Defendants have urged that if claimant has sustained an aggravation of a preexisting condition then they are only liable for the extent of the aggravation. Rose v. John Deere Ottumwa Works, 247 Iowa 900 76 N.W.2d 756 (1956); Zeigler v. United Page òòò 11 States Gypsum Company, 252 Iowa 613 106 N.W.2d 591 (1960); Hanson v. Dickenson, 188 Iowa 728 176 N.W.2d 823 (1920); Oldham v. Scofield & Welch, 222 Iowa 764, 266 N.W. 480, 269 N.W. 925 (1936); Yount v. United Fire and Casualty, 129 N.W.2d 75 (Iowa 1964); Yeager v. Firestone Tire and Rubber Co., 253 Iowa 369, 373-74, 112 N.W.2d 299, 302 (1961); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965). Consideration has been given to this principle of law. It is also noted that claimant denies and there is no history of any prior back problems of any kind, but on the contrary, claimant led a very active and athletic life. There is absolutely no evidence that his degenerative arthritis was symptomatic prior to this injury. Dr. Haskell, Dr. Sellinger, and Dr. Ryan all found that the complaints to the lumbar spine for which they examined claimant were either caused by or aggravated by this injury. Claimant, born July 31, 1927, was 59 years old at the time of the injury; 62 years old at the time of the hearing; and 64 years old at the time of the decision. Age is a factor in the determination of industrial disability. McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision 1989); Walton v. B & H Tank Corp., II Iowa Industrial Commis sioner Report 426 (1981); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979). The proximity of a person's age to retirement or early retirement are factors in the determination of industrial disability. Swan v. Industrial Engineering Equipment Co., IV Iowa Industrial Report 353 (1984); McDonough v. Dubuque Packing Co., Vol. I no. 1, State of Iowa Industrial Commissioner Decisions 152 (1984). Claimant testified that he had planned to work until age 65 prior to this injury, but subsequent to this injury he elected to take early retirement at age 62 under the social security system. It is noted that claimant made this choice even though employer had made his former job available within his restrictions. Claimant contends that he is an odd-lot employee for the reason that he is incapable of obtaining employment in any well known branch of the labor market. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). However, claimant cannot be an odd-lot employee when employer offered him his old job back within the limitations imposed by the doctors on two different occasions and claimant declined to come back to work. Furthermore, claimant has demonstrated that he can perform cargo claims adjusting work because that is what he was doing at the time of the hearing on a limited basis. Moreover, the legis lature did not intend to provide lifetime benefits through workers' compensation awards as a supplement to normal retirement benefits. Keifer v. Iowa Public Service Co., file number 830461 (arb. dec. June 27, 1991); Miller v. Hallett Materials, file number 861983 (filed July 31, 1991). Furthermore, it is difficult to ascertain the true extent of claimant's disability because he had not attempted to return to work within his limitations until just shortly before the hear ing. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Claimant's inability to perform cargo claim adjusting within the restrictions imposed by Page òòò 12 the doctors is a self-imposed limitation which is not supported by the medical evidence. This is further evidenced by the fact that claimant has been able to perform cargo claim adjusting for Seymour just prior to the hearing. Employers are responsible for the reduction in earning capacity caused by the injury. They are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Claimant does not need retraining because he is capable of performing cargo claim adjusting on a limited basis and this is an occupation in which he is highly skilled and has a lifetime of experience to offer. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 78 (1984). The opinion of Roger Marquardt, vocational rehabilitation consultant, to the effect the claimant is not employable, is rejected for the reason that Marquardt proceeded on the basis that claimant is not able to perform cargo claim adjusting within the limitations imposed by the doctors. Marquardt said claimant could perform light and sedentary work. Both employer and Seymour have offered light and sedentary work within his limita tions. Marquardt based his decision that claimant was unemploy able on the fact that claimant is not able to stay with the job for a recognizable period of time because of his limitations of sitting, standing and walking. Both employer and Seymour have given claimant the privilege of regulating these positions of work for himself and, therefore, claimant's ability to return to work in some degree is based on his own motivation to do so. He may be understandably fearful, but he has demonstrated the courage to attempt to return to work by taking the employment at Seymour (ex. 1, pp. 91-97a). Claimant's industrial disability is probably increased by the fact that positions for a cargo claim adjuster, especially one with physical limitations, are not prevalent in the competi tive labor market. Whether claimant needs or eventually receives a lumbar spinal fusion remains to be seen. The amount of industrial disability determined here is based upon the facts of this case as they existed at the time of the hearing. Wherefore, based upon: (1) claimant's age of approximately 60 years; (2) the fact that he is a highly skilled cargo claim adjuster who performed this skill for the motor transport company for approximately 26 years, from 1953 to 1980, and then another approximate seven years for Crouse Cartage Company, from 1980 to 1987; (3) the fact claimant can continue to perform these duties within the limitations prescribed by the doctors, with either employer or Seymour; (4) that claimant has a high school educa tion, as well as, some technical training in electronics and specialized training in claim adjusting; (5) that claimant has a work record of a responsible and reliable employee for his entire working lifetime; (6) that although claimant has limitations he is not foreclosed from cargo claim adjusting; (7) that claimant has received permanent impairment ratings of 5 percent (plus), 10 percent and 20 percent; (8) that claimant is limited to lifting 25 pounds occasionally and 10 pounds frequently which is approxi mately the light and sedentary work category; (9) that claimant must alternate positions between standing, sitting and walking Page òòò 13 and suffers back pain and left leg pain which, although degenera tive, was aggravated by this injury; (10) that claimant elected not to return to work in Carroll, Iowa, where it would be neces sary to commute approximately 340 or 415 miles from his home in Wisconsin; (11) based upon all of the facts introduced into evidence; (12) based upon all the factors used to determine industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Deci sion March 26, 1985), Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); and (13) relying on agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 35 percent industrial disability to the body as a whole and is entitled to 175 weeks of workers' compensation permanent partial disability benefits. It is further determined that claimant did not sustain the burden of proof by a preponderance of the evidence that he is an odd-lot employee or that he is permanently and totally disabled based on normal workers' compensation principles. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury on January 7, 1987, which arose out of and in the course of employment with employer. Iowa Code section 85.3(1); 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). That the injury was the cause of temporary disability as stipulated to by the parties. That claimant is entitled to 37.571 weeks of healing period benefits for the period from February 12, 1987 to November 2, 1987. Iowa Code section 85.34(1). That the injury was the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant sustained a 35 percent industrial disability to the body as a whole. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). That claimant is entitled to 175 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). order THEREFORE, IT IS ORDERED: That defendants pay to claimant thirty-seven point five seven one (37.571) weeks of healing period benefits at the stipu lated rate of three hundred eighteen and 06/100 dollars (318.06) per week in the total amount of eleven thousand nine hundred forty-nine and 83/100 dollars ($11,949.83) commencing on February Page òòò 14 12, 1987. That defendants pay to claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the stip ulated rate of three hundred eighteen and 06/100 dollars (318.06) per week in the total amount of fifty-five thousand six hundred sixty and 50/100 dollars ($55,660.50) commencing on November 2, 1987. Page òòò 15 Defendants are entitled to a credit for fifty-eight point four two nine (58.429) weeks of workers' compensation benefits paid to claimant at the rate of three hundred eighteen and 06/100 dollars (318.06) per week in the total amount of eighteen thou sand five hundred eighty-three and 93/100 dollars ($18,583.93) as stipulated to by the parties. The deputy was not asked to make a determination concerning the full pay which claimant received from employer from the date of the injury, January 7, 1987 until July 26, 1987, when the workers' compensation carrier began to pay healing period benefits. A credit for wages was not desig nated as a hearing issue on the hearing assignment order, in the prehearing report or mentioned on the record at the time hearing. The parties withdrew the issue of a credit under Iowa Code section 85.38(2) at the time of the hearing (tr. p. 9). That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33; Iowa Code section 86.19(1). Claimant is specifically authorized sixty-five dollars ($65) for the filing fee, eighty-three and 12/100 dollars ($83.12) for the court reporter fee of December 20, 1990, and one hundred seventeen dollars ($117) for the court reporter fee of March 23, 1990, which costs total two hundred sixty-five and 12/100 dollars ($265.12). Claimant is also entitled to one hundred fifty dollars ($150) as an expert witness fee for the charges of Marquardt Consulting Services dated January 4, 1990, in the amount of five hundred eleven and 25/100 dollars ($511.25). That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Gregory T. Racette Mr. Dennis L. Hanssen Attorneys at Law 2700 Grand Ave. STE 111 Des Moines, Iowa 50312 Jones, Hoffman & Huber 500 Liberty Bldg. Des Moines, Iowa 50309 Page 1 51101 51106 51108.50 51401 51402.20 51402.30 2206 51402.40 51802 51803 Filed August 30, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : MILO BEUTHIEN, : : Claimant, : : vs. : : File No. 858762 CROUSE CARTAGE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51101 51106 51108.50 51401 51402.20 51402.30 2206 51402.40 It was determined that claimant sustained an injury which arose out and in the course of his employment with employer when he injured his back while lifting a crate that weighed 167 pounds with a coemployee. Claimant had significant degenerative disc disease prior to the injury, but there is no evidence that it was symptomatic or that claimant had received any treatment of any kind for it. On the contrary, claimant had led a very active and athletic life and was the proper weight for his height. Three of four orthopedic surgeons said that both the herniated disc and the aggravated degenerative disc disease at lower levels were either caused by or aggravated by this injury. 51802 Claimant awarded healing period benefits for the time he left work due to this injury until defendants' evaluator said he had attained maximum medical improvement. A treating physician also said claimant had reached maximum medical improvement at about the same time. 51803 Impairment ratings ran 5 percent plus, 10 percent and 20 percent, all by qualified orthopedic surgeons. Claimant approximately age 60, high school education, and 33 years Page 2 experience as a cargo claim adjuster was restricted to lifting 25 pounds occasionally and 10 pounds frequently. Employer, however, offered claimant his old job back within the medically prescribed restrictions. Claimant rejected two offers of reemployment by employer because he lived in Wisconsin and lost his incentive to commute 340 to 415 miles to work after this injury. Claimant was receiving regular social security and a week before the hearing learned he had been awarded disability social security benefits. In addition, claimant was working part-time with an employer only 32 miles from home in Wisconsin, four to five hours per day, three days per week, within his restrictions, for a salary of $1000 per month. Claimant awarded 35 percent permanent partial disability as industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ GUSTOV W WEBER, : : Claimant, : : vs. : : File No. 969945 ARMSTRONG TIRE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIANZ INSURANCE, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Gustov W. Weber against Armstrong Tire Company, employer and Allianz Insurance Company, insurance carrier. The hearing was held before the undersigned deputy industrial commissioner on September 21, 1994, at Des Moines, Iowa. The evidence consists of testimony from claimant, Joyce Kain and Jack Salsiberry; claimant's exhibits 1 through 31, 43 through 49 and defendants' exhibits A through M. The case was considered fully submitted at the close of the hearing. ISSUES The parties submitted the following issues for resolution: . Whether claimant sustained an injury arising out of and in the course of his employment on May 24, 1990; . Whether the alleged injury caused permanent disability; . Whether the alleged injury caused temporary disability; . The nature and extent, if any, for permanent partial disability benefits, if awarded; . Whether claimant is entitled to reimbursement for an independent medical examination; and . Whether the proper weekly workers' compensation benefit rate is $364.36 or $334.43. Page 2 FINDINGS OF FACT At the time of the hearing claimant was 37 years old, married and the father of three children, all of whom live with him and his wife. Claimant graduated from high school in 1975. After graduation from high school claimant worked for $1.75 at HyVee as a stocker until 1978. His duties included stocking shelves, cashiering and loading and unloading trucks. He left HyVee for a better paying job as a house sider. From 1978 until November 1980 claimant worked in the house siding business with his brother. During his tenure as a house sider, claimant was paid $4.75 per hour. His duties included general warehouse work and loading and unloading semi-trucks. In November 1980 claimant began his employment with Armstrong Tire Company. When he began his employment with Armstrong, claimant served as a "booker." As a booker he picked up tire tread and loaded it into steel crates called books. During his next ten years with Armstrong, claimant held a number of different positions including, tuber serviceman, booker cutter, serviceman, windup operator, and tread hauler. Claimant's complete job rotation history can be found at defendants' exhibit M, page 56. At the time of his injury on May 24, 1990, claimant was working as the L-calendar windup operator. He was required to load empty liners onto a machine. When the liners were full, he would cut the material to free up the full liner, tie off the full liner and with some assistance from a hoist, load the full liner onto a rack. The liners were then sent to the tire floor. As a windup operator claimant was required to lift over 50 pounds. He also was required to do strenuous bending, walking, pushing, pulling, and climbing. Claimant credibly testified that he was injured when the guiding arm on a piece of machinery swung around toward him as he was turning around, struck him in the middle of the forehead and knocked him to the ground. A coworker, D. Harvey, helped him up from the floor. Claimant credibly testified that immediately after the accident he went to see the plant nurse. No record of claimant's May 24, 1990 visit to the company nurse exists. On June 22, 1990, claimant again reported to the plant nurse and was seen by the company physician, Santiago Garcia, M.D., complaining of continued pain in the posterior region of his left thigh that had been present for approximately three weeks. (Defendants' exhibit K, page 47a) Claimant testified that his back and leg had been hurting since he was struck in the head and knocked to the floor on May 24, 1990. Claimant continued to treat with Dr. Garcia. Dr. Garcia prescribed pain killers (Voltaren) and limited Page 3 claimant's work activities to light duty with the further restrictions that claimant not lift over ten pounds or engage in repetitive bending, or working until July 7, 1990. (Claimant was on vacation from June 27, 1990 until July 9, 1990) (Def. Ex. K, p. 47b) Claimant returned to regular duty after his vacation on July 9, 1990, and continued to receive treatment from Dr. Garcia. On Dr. Garcia's recommendation claimant was seen by Joshua Kimelman, D.O., on October 30, 1990. Dr. Kimelman's office notes reflect that claimant was complaining of pain in his back working into the level of his knee since he was hit in the head and fell backwards on May 24, 1990. (Cl. Ex. 1, p. 1) Dr. Kimelman ordered an MRI to rule out disc herniation. On November 12, 1990, claimant underwent an MRI of the lumbar spine that ultimately revealed a large left-sided herniated disc. (Cl. Ex. 2, p. 2). Dr. Kimelman believed the MRI results to be consistent with claimant's symptoms. (Cl. Ex. 2, p. 2) On November 20, 1990 claimant discussed his treatment options with Dr. Kimelman. Dr. Kimelman recommended epidural steroid injections. (Cl. Ex. 2, p. 2) On November 28, 1990, Dr. Kimelman took claimant off work for at least ten days or until he had undergone an epidural steroid injection. Claimant ended up remaining off work from November 28, 1990 through September 3, 1991. On December 6, 1990, James Ryan, M.D., administered the first of claimant's epidural steroid injections. (Cl. Ex. 27, pp. 30-31) Dr. Kimelman's office note of December 12, 1990, indicates that the epidural steroid injection did not offer claimant much relief. (Cl. Ex. 3, p. 3) After conservative care alternatives failed to improve claimant's condition, he underwent a diskectomy, laminectomy and neural foraminotomy for an extruded disc at L5, S1 on the left side on February 4, 1991. (Cl. Ex. 4, p. 4) From early February 1991 to late June 1991 claimant received post-operative care from Dr. Kimelman in the form of periodic office visits. On June 21, 1991, claimant underwent another MRI to rule out residual disc herniations at L5, S1. (Cl. Ex. 7, p. 7) Claimant's June 21, 1991 MRI indicated epidural fibrosis and scarring of the S1 nerve root. (Cl. Ex. 10, p. 11) Dr. Kimelman recommended another attempt at epidural steroid injections to alleviate claimant's pain. On July 11, 1991 and July 30, 1991, claimant underwent two additional epidural steroid injections. (Cl. Exs. 8, 32, 34) On August 29, 1991, Dr. Kimelman released claimant back to work with the restrictions of no bending, twisting or lifting over 15 pounds. (Cl. Ex. 9, p. 9) Claimant Page 4 returned to work from September 3, 1991 to December 15, 1991 as a janitor, sweeping floors. (Def. Ex. M) Dr. Kimelman again then removed claimant from work and sent him for another set of epidural steroid injections. (Cl. Ex. 10, p. 11; Ex. 33; Ex. 34) A third MRI on March 6, 1992 caused Dr. Kimelman to opine on March 19, 1992, that claimant had failed lumbar disc syndrome. (Cl. Exs, 13, 35) Dr. Kimelman ordered a TENS unit and a continued exercise program for claimant. (Cl. Ex. 12, p. 4) On May 14, 1992, Dr. Kimelman wrote to Dr. Garcia to update him on claimant's current condition and prognosis. At this time, Gus is unable to work. I believe that it is extremely unlikely that he will be able to return to his previous type of work. He has essentially failed with every modality of treatment that we have attempted with him including recently a TENS unit. I understand from your correspondence that you would like me to see him more often than every six weeks and I would certainly be happy to see him as often as you request. Unfortunately, I do not have a solution for this very difficult problem... (Claimant's Exhibit 14, page 15) On May 20, 1992, Dr. Kimelman referred claimant for an EMG because claimant's left leg had been giving out and because he had weakness in the left quadriceps as compared to the right. (Cl. Ex. 15, p. 16) On June 25, 1992, claimant was evaluated by the Spine Diagnostic and Treatment Center in Iowa City to determine whether he would be a suitable candidate for either the two-week outpatient vocational rehabilitation program or the two-week low back pain rehabilitation program. (Def. Exs. D, E) While Tom Lanes, M.A., C.R.C., vocational rehabilitation consultant, did not feel that Mr. Weber would be a good candidate for the vocational rehabilitation program (Def. Ex. D, p. 16), Mr. Ted Werimount, M.S.W., Rehabilitation Coordinator, concluded that the majority of the spine team felt that claimant would be an excellent candidate for the two-week low back pain rehabilitation program. (Def. Ex. F, p. 22) Unfortunately, claimant would not have been able to secure a spot at the clinic until September. To avoid a delay in treatment, Dr. Kimelman referred claimant for rehabilitation and work hardening to Donna Bahls, M.D., at Mercy Hospital. (Cl. Ex. 16, p. 17) Claimant began attending rehabilitation in mid-July 1992. On July 31, 1992, Dr. Kimelman noted that claimant was complaining of shoulder pain that was caused by his injury of May 24, 1990. Claimant had been referred by Dr. Garcia to Dr. Kimelman in part for the shoulder pain, but he had Page 5 not received any treatment. After an x-ray, Dr. Kimelman diagnosed AC arthralgia and gave claimant a cortisone injection into the AC joint. (Cl. Ex. 17, p. 18) An August 25-26, 1991 functional capacities evaluation revealed that claimant would: ...not be able to lift objects off the floor, crouch or bend excessively secondary to the weak trunk stabilizers and weak left lower extremity. Client needs to alternate sitting, standing and walking so no one activity is done for a prolonged period. It will be necessary that self-pacing and frequent change of positions and or activities are allowed. If lifting is required, he will be limited to the pounds of lifting indicated in the FCE form. (Defendants' Exhibit H, p. 27) Thereafter on August 31, 1992, claimant was able to return to light duty work for four hours per day doing janitorial duties. He was eventually assigned to a "tugger" or "tread hauler" position but his wages were reduced because the "tugger" position paid less than an L-Calendar windup operator. On October 20, 1992, claimant's hours increased from four to eight hours per day. On October 22, 1992, claimant was seen at the Mercy Hospital emergency room after his knee gave out while at work and he fell to the floor and was unable to walk. (Cl. Ex. 41, p., 48) Subsequently, Dr. Kimelman referred claimant for an EMG and another MRI. (Cl. Ex. 38, p. 38) A nerve conduction study was done instead of the EMG because claimant was taking Coumadin at the time the test was scheduled. (Cl. Ex. 20) The nerve conduction study showed S1 radiculopathy and the MRI showed no change since the previous MRI except that claimant had more degeneration of his discs. (Cl. Ex. 20, p. 21) Dr. Kimelman then ordered another functional capacities evaluation and physical therapy to strengthen claimant's quadriceps and to stretch his hamstring. (Cl. Ex. 20) Claimant's November 11-12, 1992 FCE indicates that he has extensive permanent work restrictions. He is able to lift nothing from the floor to his waist. He must move slowly when pushing, pulling or carrying in his right or left hand. He may only carry objects short distances. He must avoid excessive walking and limit crouching, squatting, stair climbing, and stepladder climbing. An exhaustive list of claimant's permanent work restrictions is found at defendants' exhibit I, pages 34 and 35. (Cl. Ex. 23) In February 1993, Dr. Kimelman adopted all of the permanent physical restrictions outlined in defendants' exhibit I at pages 34 and 35 and further determined that claimant had a 22 percent functional impairment rating. (Cl. Exs. 23 and 24) Page 6 Defendants' exhibits B, K and L exhibit that prior to his injury of May 24, 1990, claimant had complained of back aches. Claimant testified credibly that while he had had back aches prior to his May 24, 1990 injury at the time immediately before his injury he had no back problems, nor was he being treated for any back problems or complaints. On July 18, 1994, claimant underwent an independent medical examination by Keith Riggins, M.D. (Cl. Ex. 42) Dr. Riggins was unable to assign a functional impairment rating to claimant because he did not feel that claimant had reached maximum medical improvement. (Cl. Ex. 42, p. 54) Dr. Riggins did note that claimant's right thigh measured 20 1/4 inches in circumference and his left thigh measured 19 1/2 inches in circumference. Claimant's right calf measured 15 inches in circumference and his left calf measured 14 inches in circumference. Unfortunately, claimant suffers from a nonwork-related blood clot disorder that requires he take the blood thinner Coumadin on a consistent regular basis. On June 3, 1994, claimant suffered a seizure with convulsion that has kept him from working since that date. The plant was sold in mid-July 1994 and to date not all of the employees have been recalled to work. Up until July 15, 1994, claimant received accident and sickness benefits from the time of his June 3, 1994 seizure. Joyce Kain testified on behalf of the employer that if claimant provided the employer with a doctor's note explaining that claimant would need to remain off work, his accident and sickness benefits would resume. On August 24, 1994, claimant received a COBRA notice informing him that as of October 15, 1994, he would no longer be eligible to be covered under the Pirelli Armstrong Tire Corporation's group health insurance policy. Notwithstanding claimant's assertions, the August 24, 1994 COBRA notice does not amount to a termination of claimant's employment; it merely represents a termination of the previous plant owner's group insurance coverage. Joyce Kain testified that in all likelihood claimant would be recalled to work, even though claimant could not now report to work because of his nonwork-related medical condition. Jack Salsiberry's undisputed testimony that claimant's reassignment from an L-Calander windup operator to tugger or tread hauler represents an actual loss of earnings of 7 to 7 1/2 percent illustrates claimant has actually lost earning capacity. Claimant and employer also differ as to what claimant's proper weekly workers' compensation rate should be. Claimant contends that his benefits should be calculated at $364.36 based on average weekly earnings of $598.24; while defendants contend that claimant's proper workers' compensation rate is $334.43 based on average weekly wages of $520.60. Central to the dispute is whether the average weekly earnings should include supplemental unemployment Page 7 benefits, or SUB pay. SUB pay is a trust fund set up by the employer in which the employer deposits a particular amount of money, to be paid to employees when the are laid off or sent home because no work is available. The SUB pay can make up the difference between unemployment payments received by the employee less 80 percent of the employees actual wages. If the fund is broke or under funded, employees can receive anywhere from 0 to 80 percent. The parties stipulated that the weeks used in the calculation of the rate in claimant's exhibit 47, page 59, are the correct weeks. Federal and state taxes are withheld from the employee's SUB pay, however, FICA is not withheld from SUB pay. SUB pay is declared by the employees as ordinary income on their yearly tax forms. Jack Salsiberry testified that SUB pay is not an irregular bonus, retroactive pay, overtime, penalty pay, reimbursement of expenses, expense allowances, or an employer's contribution for welfare benefits, thus should be included in the calculation of the claimant's weekly earnings. Page 8 ANALYSIS AND CONCLUSIONS OF LAW The first issue to be addressed is whether claimant sustained an injury arising out of and in the course of his employment. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). On May 24, 1990, claimant was operating the L-Calander windup machine as was required of him, when an arm on the machine struck claimant in the forehead and knocked him to the ground. Another coemployee witnessed the fall and helped claimant up from the ground. The mere absence of a nurse's report of the same date does not mean that claimant did not see the plant nurse or that he did not suffer the injury as described. There is nothing in the record to dispute that claimant did not injure his back on May 24, 1990. As a result it is found that claimant sustained an injury on May 24, 1990, which arose out of and in the course of his employment. The next issue to be determined is whether claimant's injury resulted in permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Page 9 Notwithstanding Dr. Riggins' independent medical examination, it is determined that based upon Dr. Kimelman's report of a 22 percent functional impairment rating, claimant has reached maximum medical improvement. As claimant's primary treating physician, Dr. Kimelman ordered claimant off work on a number of occasions. Dr. Kimelman also determined that claimant's MRI was consistent with his symptoms and that claimant had susatined a 22 percent impairment to the body as a whole. Since claimant's primary physician determined that claimant had suffered some permanency because of his injury and had a permanent impairment rating of 22 percent, it is found that claimant did sustain a permanent disability, not a temporary disability. As claimant sustained a permanent impairment to the body as a whole, an analysis of his industrial disability is warranted. 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, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. 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. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 dis ability 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of Page 10 the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. At the time of his injury claimant was 33 years old. His job with defendant employer, which he held for approximately ten years, was the best paying job he had ever held. The vast majority of claimant's work experience is in heavy manual labor. It is determined that claimant has not been terminated from his employment, only that he has not been recalled and even if he were recalled he would not be able to work at this time because of his nonwork-related medical condition. Claimant's back injury caused an extended healing period. Based upon claimant's education and experience, claimant is suited for manual labor employment, much of which is not available to him now because of his extensive permanent medical restrictions. At the time of his injury, claimant was an L-Calander windup operator. He was required to perform repetitive bending, walking, standing, and lifting of up to 50 pounds. Claimant's permanent physical restrictions against the activities listed above, prevent him from ever returning to work as an L-Calander windup operator. Claimant has a 22 percent functional impairment rating from Dr. Kimelman. Claimant has loss of earning potential because he is no longer able to engage, by virtue of his work restrictions, in the best paying jobs defendant employer has to offer. If claimant is subsequently terminated his actual loss of earnings would of course be 100 percent. Claimant may seek review-reopening if that situation occurs. Claimant is motivated to return to work as is evidenced by his return to work for defendant employer at a lesser paying job. Claimant's poor health makes him a less Page 11 attractive employee to other potential employers. Claimant was an active, motivated participant in rehabilitation and work hardening. After considering all of the factors enumerated above, it is found that claimant has sustained a 65 percent industrial disability. Section 85.39 permits an employee to be reimbursed for subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subsequent examination. Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defendants are obligated to reimburse claimant for independent medical examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) Claimant underwent an independent medical examination by Dr. Riggins after defendant employer's doctor issued a 22 percent functional impairment rating which claimant believed to be too low. Regardless of Dr. Riggins' conclusions, claimant is entitled to be reimbursed $375, which is found to be the reasonable cost of claimant's independent medical examination. The final issue to address is whether claimant's correct workers' compensation weekly benefits rate is $334.43 which does not include SUB pay or $364.36 which does include SUB pay. Iowa Code section 85.61(3) provides: "Gross earnings" means recurring payments by employer to the employee for employment, before any authorized or lawfully required deduction or withholding of funds by the employer, excluding irregular bonuses, retroactive pay, overtime, penalty pay, reimbursement of expenses, expense allowances, and the employer's contribution for welfare benefits. It is determined that the greater weight of evidence supports the conclusions that SUB pay should be included in claimant's calculation of his workers' compensation benefit rate because the SUB pay is not an irregular bonus, retroactive pay, overtime, penalty pay, reimbursement expenses, expense allowance for welfare benefits, but is in fact, earnings as defined by 85.61(3). Claimant's correct Page 12 weekly workers' compensation benefit is $364.36 ORDER THEREFORE IT IS ORDERED: That defendants shall pay unto claimant three hundred twenty-five (325) weeks of permanent partial disability benefits at the rate of three hundred sixty-four and 36/100 dollars ($364.36) commencing November 23, 1992. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants reimburse claimant three hundred seventy-five dollars ($375) for his independent medical examination. That defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33. That defendants shall file claim activity reports as requested by this agency pursuant to rule 343 IAC rule 3.1. Signed and filed this __________ day of October, 1994. ______________________________ TERESA K. HILLARY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Pratt Attorney at Law 6959 University Ave. Des Moines, Iowa 50311-1540 Mr. Terry Monson Attorney at Law 100 Court Ave STE 600 Des Moines, Iowa 50309-2231 51803 3001 Filed October 18, 1994 Teresa K. Hillary BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ GUSTOV W WEBER, : : Claimant, : : vs. : : File No. 969945 ARMSTRONG TIRE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIANZ INSURANCE, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ 51803 Claimant underwent back surgery for a diskectomy, laminectomy and neural foraminotomy at L5, S1 after being knocked to the ground by a piece of machinery. Defendants' dispute not only the nature and extent of claimant's permanent partial disability, but wither claimant has suffered any permanency at all. Claimant had extensive permanent restrictions placed upon him by his authorized treating physician. Claimant also suffers from a nonwork-related blood disorder that makes him a less attractive employee to potential employers. Claimant awarded 65 percent industrial disability. 3001 Employer had a trust fund set up by which employer contributed funds to pay employees up to 80 percent of their wages less unemployment compensation benefits in the event of lay off or lack of work. Employer and claimant dispute whether SUB (supplemental unemployment benefits) should be included as gross earnings per 85.61(3) and thus included in claimant's calculation of his weekly workers' compensation benefit rate. Another deputy had determined in a case currently pending on appeal that SUB pay should be included. In this case, SUB pay was included in claimant's calculations of his weekly benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KENNY LEE WILLIAMS, : : Claimant, : : vs. : File Nos. 858826 : 894182 MATNEY MORNINGSIDE MANOR, : : A T T O R N E Y Employer, : : F E E and : : D E C I S I O N ALLIED GROUP INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ On February 12, 1990 John E. Behnke (Behnke) filed a petition for an attorney fee lien as a result of work performed for Kenny Lee Williams for worker's compensation benefits during 1989 and 1990. On August 12, 1991 the matter came on for hearing in Des Moines, Iowa. The parties appeared as follows: John Benke pro se. The claimant did not appear. The record in this proceeding consisted of taking official notice of the pleadings in this matter and the agreement for special case compromise entered into between claimant, Matney Morningside Manor, employer and Allied Mutual Insurance Company, insurance carrier (collectively defendants). preliminary matters The posture of this case is somewhat unusual in that claimant had failed to comply with agency rules with regard to filing a timely answer in this matter. Since claimant had failed to file an answer, the record was closed to further evidence or activity on July 8, 1991. This order gave claimant the right to monitor the hearing, but take no part in the hearing conducted on August 12, 1991. The procedural history of the dispute regarding Attorney Behnke's fees is set out in the post hearing order that was issued on August 15, 1991. Claimant was given 14 days to respond to the contents of that order. On August 29, 1991 cliamant through his parents filed an affidavit regarding the fee dispute with Attorney Behnke. In the submission of August 29, 1991, claimant's parents provide their version of the circumstances of the contract of representation that claimant had with Attorney Behnke. The submission included copies of material contained in the file. Since the submission is styled as an Page 2 affidavit, it is presumably being offered as evidence regarding the reasonableness of Attorney Behenke's fees. There is no evidence that this affidavit was served on Attorney Behnke. The affidavit does not go to the question of whether claimant is satisfied that his due process rights were preserved by the hearing that was conducted by the undersigned on August 12, 1991. The affidavit will not be received as evidence or considered in this decision since claimant was foreclosed from offering any evidence at the time of the hearing. Since there was no objection to the procedure adopted by the agency for the conduct of this hearing, this ruling shall address the issue of the attorney fee lien request by Attorney Behnke. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. On February 16, 1989, claimant retained John E. Behnke (Behnke) as his attorney to assist him in prosecuting a contested case proceeding for workers' compensation benefits. Claimant allegedly suffered an injury while he was employed at Matney Morningside Manor in Sioux City, Iowa. Attorney Behnke pursued the law suit by contacting the insurance carrier and reviewing the circumstances of the injury suffered by claimant. Attorney Behnke went on to make contact with Attorney Higgs, defendants' counsel, in order to discuss matters relating to the case. Attorney Behnke's contacts began February 21, 1989 and continued through December 6, 1990. During the course of Attorney Behnke's representation, he made requests of the insurance carrier for an independent medical examination, prepared filings, contacted claimant regarding medical reports, filed a motion to consolidate and entertained settlement proposals from the defendants. Attorney Behnke's representation lasted well into the fall. 2. On September 20, 1990, Attorney Behnke received a letter from Attorney Higgs inquiring whether Attorney Behnke knew that claimant's father had taken an active role in his son's case and wanted to settle the matter with the insurance carrier and the employer. 3. On October 23, 1990, Attorney Behnke received a letter from claimant discharging him as claimant's attorney for his workers compensation case. 4. On November 1, 1990, claimant made contact with the Industrial Commissioner's office requesting information and the necessary forms to discharge his workers' compensation attorney. 5. On December 13, 1990, Attorney Behnke filed a motion to withdraw as claimant's counsel. The motion was granted on December 21, 1990. 6. Prior to the date that Attorney Behnke was discharged, he had received a offer of settlement in the Page 3 amount of $2500 from the carrier. 7. On February 21, 1991, claimant and defendants filed an application for compromise special case settlement of claimant's claim. The settlement documents indicate that claimant was paid $2500 in full and complete settlement and satisfaction of all of his claims arising under the Iowa workers' compensation law resulting or flowing from his injuries that he claims were sustained at his place of employment. 8. On February 12, 1991, Attorney Behnke filed an original notice and petition for determination of attorney fees. Attached to that petition, Attorney Behnke provided an itemization of services that he had rendered in support of his lien. The itemization shows that Attorney Behnke spent 16.5 hours on this file. With an hourly fee of $75 per hour, the total fee is $1,237.50. 9. The fee contract executed between Attorney Behnke and claimant is silent as to the paymanet of a fee in the event that Attorney Behnke is discharged prior to the time that the matter is concluded. CONCLUSIONS OF LAW The only issue to resolve in this matter is whether Attorney Behnke is entitled to an attorney fee in the amount of $1,237.50 for work performed on behalf of claimant. The question of awarding a lien for attorney fees is governed by Iowa Code Section 86.39 (1991). This provision indicates that all fees for legal services shall be subject to the approval of the industrial commissioner. A lien for attorney fees is only enforceable if it has been approved by the industrial commissioner. In any action to establish a claim for attorney's fees, or enforce a lien for an established fee, the burden rests on the attorney to prove by a preponderance of the evidence that the fee claimed is reasonable. This burden is placed upon the attorney as a result of the special standards governing attorney conduct as set forth in the Iowa Code of Professional Responsibility for Lawyers and the ethical canons and disciplinary rules thereunder. See, Ethical Consideration 2-19; Disciplinary Rule 2-106; Toalson v. Purolator Courier Corporation, File No. 808332, Slip op (Iowa Ind. Comm'r Arb. March 16, 1989); Rickett v. Hawkeye Building Supply Co., File Number 739306, slip op. (Iowa Ind. Comm'r Rehearing February 5, 1987); Thompson v. Midwest Paving Co., I Iowa Industrial Commissioner Decisions, No. 4, 1122, 1124 (Arb. 1985) In determining the amount of the fee award, the agency is guided by the Supreme court decision in Kirkpatrick v. Patterson, 172 N.W.2d 259, (Iowa 1969). The Court indicated that the fee allowed to the claimant's attorney is not necessarily measured by the contingent fee contract between the claimant and the claimant's attorney. Justice Stuart indicated that the agency should consider all the elements Page 4 which have a bearing on the amount of attorney fees allowed in any given case including the time spent, the nature and extent of the services, the amount involved, the difficulty of handling the case, the importance of the issues, the responsibility assumed and the results obtained as well as the professional standing and experience of the attorney.(1) After these elements are considered a one third contingent fee might be reasonable. Kirkpatrick, 172 N.W.2d at 261; McCormack v. Sunsprout, I Iowa Industrial Commissioner Decisions, No. 4, 978, 981 (Arb. 1985) Lee v. John Deere Waterloo Tractor Works, 34 Biennial Report, 185, 186 (App. 1978); Francis v. Ryder Truck Rental, 4 Iowa Industrial Commissioner Report, 129, 130 (App. 1983); Thompson, I Iowa Industrial Commissioner Decisions, No. 4, at 1124. A fee of one fourth the amount recovered is generally considered more appropriate where a workers' compensation claim of average complexity is involved. Curler v. Dubuque Lumber Co., IV Iowa Industrial Commissioner Report 85, 86 (App. 1983); Toalson v. Purolator Courier Corporation, File No. 808332, Slip op (Iowa Ind. Comm'r Arb. March 16, 1989). The agency has long held that the industrial commissioner has the power to oversee all attorney fee arrangements in workers' compensation matters. Whatever private right of contract exists between a claimant and an attorney regarding attorney's fees is modified by the state's legitimate interest in assuring that the greater sum of the proceeds awarded a claimant in a workers' compensation proceeding go to the injured worker and the worker's dependents and not be used for the benefit of the attorney. Toalson, File No. 808332, at 7; The courts have also long recognized the enforceability of contingent fee contracts generally. Wallace v. Chicago, Milwaukee and St. Paul Railway, 84 N.W. 662, 663 (Iowa 1900). Pursuant to Iowa Code Section 86.39 (1991), the agency may and should scrutinize contingent fee contracts to determine the reasonableness of such contracts. The essential characteristic of a contingent fee contract is that the attorney's right to be paid any amount for services rendered is dependent upon the result obtained. Wunschel Law Firm P.C. v. Clabaugh, 291 N.W.2d 331, 333 (Iowa 1980). Where the fee agreement in ambiguous, the contract is construed with a view toward arriving at a fair, rational and probable contract. Wunschel, 291 N.W.2d at 334. In determining whether to permit recovery on a contingent fee agreement after its unilateral termination the following factors are considered: a. Did the party act in bad faith in terminating the (1). These elements have also been identified in DR2-106. This disciplinary rule provides that the factors to be considered as guides in determining the reasonableness of a fee include: a. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. b. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. c. The fee customarily charged in the locality for similar legal services. d. The amount involved and the results obtained. e. The time limitations imposed by the client or by the circumstances. f. The nature and length of the professional relationship with the client. g. The experience, reputation, and ability of the lawyer or lawyers performing the services. h. Whether the fee is fixed or contingent. Page 5 agreement; b. The extent of performance left incomplete; c. The cost to the client, if any of legal services necessary to complete the work; d. The conduct of the attorney in performing the agreement; e. The wording of the agreement. (McCormack, I Iowa Industrial Commissioner Decisions, No. 4, at 980). If substantial services have been performed, the dismissed attorney should not be precluded from recovering for the reasonable value of the services rendered. McCormack, I Iowa Industrial Commissioner Decisions, No. 4, at 980. The value of the fee is still limited to a reasonableness test however. Heninger & Heninger v. Davenport Bank & Trust Co., 341 N.W.2d 43, 48 (Iowa 1983). In this instance, the matter was not of great complexity or involve novel legal issues. The matter was an average workers' compensation dispute focusing on the source of claimant's injury. A bona fide dispute existed as to whether claimant injuries were substantially related to a work injury or whether the injuries arose as a result of a car accident. Attorney Behnke was successful in eliciting a settlement in the amount of $2,500.00 from the carrier prior to the time claimant entered into the settlement with the defendants. There is no evidence in the record that suggests that Attorney Behnke received a higher offer for claimant. Claimant had initially sought a more substantial settlement but those hopes were unrealistic based on the medical evidence attached to the special case settlement. Attorney Behnke has long been practicing the area of workers' compensation and has substantial experience in this area of the law. The result obtained by the claimant was a direct result of Attorney Behnke's efforts and should be compensated. Claimant's fee contract is silent as to the contingency that occurred in this case; a discharge before all the work was completed on the file. There is no provision which permits Attorney Behnke to charge claimant $75.00 per hour for the services rendered in this instance. Since the Supreme Court recommends that a disputed attorney fee contract be construed with a view toward arriving at a fair, rational and probable contract, it would appear that Attorney Behnke is entitled to a fee based upon a percentage of the award received by claimant as opposed to an hourly rate at $75.00 per hour. Based upon the foregoing factors, all of the factors used to determine an attorney fee award, and employing agency expertise, it is determined that Attorney Behnke is entitled to 25 percent of the award granted to claimant as a result of the settlement entered into on February 21, 1991. The total amount of the fee award therefore equals $625.00. order THEREFORE, it is ordered: Page 6 1. John Behnke shall have an attorney lien in the amount of six hundred twenty-five dollars ($625.00) for the payment of attorney fees for services rendered from February 1, 1989 through and including December 22, 1990. Page 7 Signed and filed this ____ day of September, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Kenny Lee Williams 506 Miners Street Parkersburg Iowa 50665 (REGULAR AND CERTIFIED MAIL) Mr John E Behnke Attorney at Law PO Box F Parkersburg Iowa 50665 5-1001 - 5-1001.10 Filed September 5, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : KENNY LEE WILLIAMS, : : Claimant, : File Nos. 858826 : 894182 vs. : : A T T O R N E Y MATNEY MORNINGSIDE MANOR, : : F E E Employer, : : D E C I S I O N and : : ALLIED GROUP INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1001 In a dispute over a lien for attorney fees where the record was closed to further evidence and activity by claimant, lien for attorney fee was granted based on the contingency fee agreement rather than the hourly rate requested by the attorney. The fee agreement was silent as to how the attorney would be paid in the event his services were terminated prior to the date the case was concluded. Since the contract was ambiguous on that point, it was construed with a view toward arriving at a fair, rational and probable contract. Attorney was awarded 25 percent of the settlement amount that was obtained after his discharge. 5-1001.10 The elements of a reasonable award of fees was discussed in accordance with Kirkpatrick v. Patterson, 172 N.W.2d 259 (Iowa 1969). Additionally, the fee award was considered in light of the unilateral termination of the attorney client relationship. McCormack v. Sunsprout, I Iowa Industrial Commissioner Decisions, No. 4, 978, 980 (Arb. 1985). Based on all of these considerations, the attorney was awarded 25 percent of the amount of the award since the matter was not of great complexity or involved a novel legal issue. Toalson v. Purolator Courier Corporation, File No. 808332, Slip op (Iowa Ind. Comm'r Arb. March 16, 1989); Curler v. Dubuque Lumber Co., IV Iowa Industrial Commissioner Report 85, 86 (App. 1983).