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).