BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARIN MURPHY,
 
         
 
              Claimant,
 
                                                    File No. 869384
 
         vs.
 
         
 
         LORENZ & JONES MARINE                   A R B I T R A T I 0 N
 
         DISTRIBUTING, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       JUN 26 1989
 
         EMPLOYERS MUTUAL COMPANIES,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Darin Murphy, 
 
         claimant, against Lorenz & Jones Marine Distributing, Inc., 
 
         employer, and Employers Mutual Companies, insurance carrier, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an alleged injury of November 4, 1987.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner May 1, 1989.  The record was considered fully 
 
         submitted at the close of the hearing.  The record in this case 
 
         consists of the testimony of claimant and joint exhibits 1 
 
         through 19.
 
         
 
                                     ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved May 1, 1989, the following issues are presented for 
 
         resolution:
 
         
 
              1.  Whether claimant sustained an injury which arose out of 
 
         and in the course of his employment;
 
         
 
              2.  Whether the alleged injury is the cause of the 
 
         disability on which claimant now bases his claim;
 
         
 
              3.  The extent of claimant's entitlement to weekly 
 
         disability benefits, including temporary total disability/healing 
 
         period benefits and permanent partial disability benefits;.and
 
         
 
              4.  The nature of claimant's permanent partial disability, 
 
         if any.
 
         
 
                                                
 
                                                         
 
                               FACTS PRESENTED
 
         
 
              Claimant testified he began working for defendant employer on 
 
         a part-time basis while still in high school and continued his 
 
         employment on a full-time basis thereafter having last worked for 
 
         defendant on or about November 21, 1987 at a rate of pay of $9.90 
 
         per hour.  Claimant described his job duties as repairing boat 
 
         propellers, including welding, grinding, sandblasting, and 
 
         hammering them which was all "very heavy physical labor."  
 
         Claimant estimated he Could work on 70 to 80 propellers per day 
 
         and that he found the grinding element of his job to be the most 
 
         strenuous aspect.
 
         
 
              Claimant testified that around the summer of 1987, he began 
 
         to notice pain and soreness in his arms, that his left shoulder 
 
         was stiff, and that the pain in his left arm around the elbow 
 
         resulted in pain shooting up and down his arm into the wrist. 
 
         Claimant stated that his right elbow began hurting also, that 
 
         both arms would go numb, and that when he coughs he gets a 
 
         "shooting numbness" down both arms.  Claimant explained he first 
 
         saw his family physician, Rodney Carlson, M.D., who prescribed 
 
         some medication which did not help the pain and that he was later 
 
         referred to Robert F. Breedlove, M.D., who prescribed medication, 
 
         physical therapy, and a Cortisone injection.  Claimant stated 
 
         none of these treatments helped and that he was thereafter 
 
         referred to Scott B. Neff, D.O.  Claimant testified Dr. Neff 
 
         ordered a CT scan and explained to claimant his situation was 
 
         "complex" in that he had "thoracic outlet, impingement syndrome 
 
         and tennis elbow." Claimant testified Dr. Neff wanted to operate 
 
         but that he wanted "more answers" before he would consent to any 
 
         surgery.  Claimant described a conference between himself, his 
 
         wife, his attorney and Dr. Neff wherein he told Dr. Neff his 
 
         "ratings were not right" and that Dr. Neff never checked his 
 
         range of motion which conversation ended wiTh Dr. Neff getting 
 
         "ticked off" and kicking the parties out of his office.
 
         
 
              Claimant stated that he "feels" like he has lost range of 
 
         motion in his elbow and shoulders and that his left arm clicks 
 
         and grinds.  Claimant testified he received workers' compensation 
 
         benefits from November 1987 until approximately the first week of 
 
         April 1988 and that he did not return to work for defendant 
 
         employer as the division where he worked had been sold and no 
 
         management position with the company elsewhere was open.  
 
         Claimant acknowledged that he opened his own business, Murphy's 
 
         Propeller Repair, in March of 1988, and that he is doing the same 
 
         kind of work (propeller repair) he did with defendant but at 
 
         nowhere near the previous volume.  Claimant estimated he may work 
 
         on ten propellers a day.  Claimant stated he is not able to do as 
 
         much physical labor as he once did, that he hired someone to work 
 
         full-time but that this employee does not have a lot of 
 
         experience and claimant must show him how things are done, and 
 
         that although he still does do some propeller repair, he is the 
 
         "owner" and as such works on counter and other sales.  Claimant 
 
         stated he still suffers from pain in his arms and shoulders and 
 
         still has trouble sleeping as a result of that pain.
 
                                                
 
                                                         
 
         
 
              On cross-examination, claimant was emphatic that not 
 
         withstanding any medical notes, he complained of pain in both 
 
         arms, both elbows, left arm numbness, and left pain throughout 
 
         all of his medical treatment beginning in November of 1987.  
 
         Claimant acknowledged he was aware at least by the fall of 1987 
 
         that defendant employer was looking to sell the propeller repair 
 
         division, that he had participated in negotiations in an attempt 
 
         to purchase which eventually fell through, and that he was aware 
 
         sometime in January of 1988 that no further work would be 
 
         available as the business had been sold.
 
         
 
              Medical records reveal claimant was first seen by Dr. 
 
         Breedlove November 8, 1987 for "left elbow pain" at which time an 
 
         injection into the area of maximum tenderness was administered. 
 
         When next seen on November 18, 1987, Dr. Breedlove noted claimant 
 
         had "some minimal response" to the injection and opined, "I feel 
 
         that this is probably related to his work where is [sic] is 
 
         involved in sharpening propellers constantly throughout the day 
 
         using his left arm."  (Joint Exhibit 15, page 1) No change was 
 
         noted at claimant's December appointment, but on January 22, 
 
         1988, Dr. Breedlove wrote:
 
         
 
                   Darin returns early for an appointment with regard to 
 
              his left elbow.  He states that it is just not getting any 
 
              better and he also states that his right elbow is bothering 
 
              him since he went bowling last week and has requested a 
 
              disability rating.  I have told him that at the request of 
 
              his attorney or workman's comp I could give him a disability 
 
              for the left elbow but that there would be no workman's 
 
              compensation disability with regard to his right elbow as 
 
              this is the first I have heard of it and it sounds as though 
 
              it originally began while bowling and not working.  He has 
 
              also stated that his shoulder is bothering him again and I 
 
              have explained to the patient that he has not mentioned any 
 
              problems with his left shoulder with regard to any workman's 
 
              injury either.
 
         
 
         (Jt. Ex. 15, p. 2)
 
         
 
              On February 26, 1988, Dr. Breedlove opined:
 
         
 
              I feel that Mr. Murphy's permanent partial impairment for 
 
              his left shoulder and both left and right elbows is 15% of 
 
              the body as a whole.  I have rated each elbow as 5% to the 
 
              body as a whole as well as 5% for his left shoulder.  These 
 
              ratings are based primarily on the physical examination to 
 
              where he has points of tenderness as well as for his pain 
 
              rather than on the customary range of motion.
 
         
 
         (Jt. Ex. 11)
 
         
 
              On May 24, 1988, Dr. Breedlove advised defendant insurance 
 
         carrier:
 
         
 
                                                
 
                                                         
 
                   I feel that Mr. Murphy's injuries were related to his 
 
              employment at Lorenz and Jones.  I base his [sic] opinion on 
 
              the history that Mr. Murphy gave me concerning his job 
 
              working with re-conditioning boat motors and propellers.
 
         
 
                   On physical examination Mr. Murphy had tenderness over 
 
              the right lateral epicondyle of the elbow and had pain with 
 
              dorsiflexion of the wrist against resistance.  He also had 
 
              on his last physical examination tenderness in the 
 
              subacromial bursa region of the left shoulder.  There was 
 
              full range of motion present on that examination with some 
 
              mild crepitus and grinding in the acromioclavicular joint.  
 
              Normal muscle tone was noted.  Mr. Murphy has had a positive 
 
              impingement sign.
 
         
 
                   It is my opinion that Mr. Murphy has 5% permanent 
 
              partial impairment of the left shoulder and 5% impairment of 
 
              the right elbow based solely upon his pain factor.  He does 
 
              not demonstrate any limited range of motion present with 
 
              either joint.  A 5% impairment of the shoulder equals 3% 
 
              impairment of the whole person. 5% impairment of the elbow 
 
              also equals 3% impairment of the whole person.  I feel Mr. 
 
              Murphy's whole person percent impairment is 6%.
 
         
 
         (Jt. Ex. 10)
 
                               
 
                                                         
 
         
 
              Claimant began seeing Dr. Neff in approximately August 1988 
 
         at which time a number of diagnostic tests were ordered.  On 
 
         August 12, 1988, Dr. Neff reported:  "[T]he cervical CT scan is 
 
         normal.  He has a positive Phalen's sign of the left wrist, and a 
 
         positive impingement maneuver of the left shoulder with 
 
         subacromial crepitus.  We can feel the greater tuberosity move 
 
         back and forth."  (Jt. Ex. 8)  On September 9, 1988, Dr. Neff 
 
         opined that "I believe the carpal tunnel syndrome is related to 
 
         the grinding and vibration exposure that he has had durring [sic] 
 
         propeller repair and the other types of.work that he does.  The 
 
         same is true of his shoulder with repetitive activity."  (Jt. Ex. 
 
         8)  The doctor-patient relationship between claimant and Dr. Neff 
 
         appeared to have completely deteriorated by January 13, 1989, the 
 
         date Dr. Neff wrote the following to claimant's counsel:
 
         
 
              I asked this gentleman to reproduce his motions with you in 
 
              the room so you could see the problem with which we were 
 
              faced.  This patient has been magnifying his symptoms, and, 
 
              admittedly, simply wants money.
 
         
 
                   He has confused and perplexed Dr. Breedlove, and he has 
 
              certainly frustrated me.  He has told me that his rating is 
 
              inadequate, and I agree that Mr. Bower should have given him 
 
              a 3 percent rating to the left hand and wrist because of the 
 
              documented carpal tunnel syndrome on EMG.
 
         
 
                   This patient, after I have examined him on more than 
 
              one occasion, has told me that I have never checked his 
 
              range of motion.  That is an absolute and complete lie and I 
 
              will not tolerate that type of a situation.
 
         
 
                   I have a nurse or an office assistant in the room on 
 
              most occasions with me, and it is my practice when I say 
 
              that I do, to examine patients.
 
         
 
                   I will not see this gentleman any further, and I would 
 
              suggest that you send him anywhere you like for an 
 
              additional rating.
 
         
 
                   In my opinion, the rating that was given to him by Dr. 
 
              Breedlove was absolutely incorrect, inappropriate, and not 
 
              reflected in current statue.  An elbow rating, for whatever 
 
              reason, is not reflected as a body as a whole rating, but 
 
              confined to the upper extremity.  To give this patient a 5 
 
              percent rating based on subjective pain is absolutely 
 
              inappropriate and incorrect.  To give this patient a 5 
 
              percent rating to his left shoulder, again, mis-rated as to 
 
              the body as a whole, is absolutely incorrect and 
 
              inappropriate.
 
         
 
                   Unless there is a proven or documented rotator cuff 
 
              tear, a rating to the shoulder is to the upper extremity. 
 
              Obviously, a rating to the elbow should be based on motion 
 
              loss or x-ray abnormality, and not on subjective symptoms. 
 
                                                
 
                                                         
 
                   The rating should be, in any event, confined to the upper 
 
              extremity.
 
         
 
                   This patient is a symptom magnifier, and I do not wish 
 
              to see him any further.  Our office will no longer be 
 
              willing to see this patient.
 
         
 
         (Jt. Ex. 2)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The first concern is whether or not claimant has established 
 
         he sustained an injury which arose out of and in the course of 
 
         his employment.
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury....The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
                                                
 
                                                         
 
                   Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  (Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              As cited above in Crowe, there must be a causal relationship 
 
         between the employment and the alleged disability.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 4, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given 
 
         to.such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              As the question of causal connection is essentially within 
 
         the domain of expert testimony, review is first given to the 
 
         medical evidence submitted.  Dr. Breedlove, who began treating 
 
         claimant in November of 1987, finds such a causal connection as 
 
         early as November of 1987, at least with regard to the left 
 
         extremity and rated claimant as having a permanent partial 
 
         impairment.  Dr. Breedlove noted on January 22, 1988, that 
 
         claimant had not complained of left shoulder pain or right elbow 
 
         pain prior to that date and specifically declined to give any 
 
         rating with regard to the right elbow stating "it sounds as 
 
         though it originally began while bowling and not working."  Dr. 
 
         Breedlove does, however, approximately one month later, provide 
 
         an impairment rating for both the left and right sides as a body 
 
         as a whole rating without providing any explanation as to why he 
 
         changed his mind to find the right elbow pain causally connected 
 
                                                
 
                                                         
 
         to claimant's employment.  Although Dr. Breedlove stated on May 
 
         24, 1988 that claimant's injuries were related to his employment 
 
         based on the work history given, clearly, Dr. Breedlove had that 
 
         work history when he rendered his earlier opinion in January of 
 
         1988.  Notwithstanding personality problems between them, in 
 
         September of 1988, Dr. Neff related claimant's carpal tunnel to 
 
         the "grinding and vibration exposure" of propeller repair but did 
 
         not specify between claimant's self-employment and his employment 
 
         with defendant.  Claimant candidly admitted that he was 
 
         performing the same type of work in his self-employment as he 
 
         performed for defendant employer although perhaps not to the same 
 
         extent.  The undersigned cannot conclude claimant's symptoms with 
 
         regard to his right upper extremity arose out of and in the 
 
         course of his employment with defendant employer.  Claimant does 
 
         have documented carpal tunnel syndrome on the left the treatment 
 
         for which began during his employment with defendant employer.  
 
         Considering all the evidence presented, the undersigned concludes 
 
         that the greater weight of evidence would establish claimant did 
 
         sustain an injury in the form of carpal tunnel syndrome on the 
 
         left on or about November 4, 1987 which arose out of and in the 
 
         course of his employment with defendant employer.  Claimant has 
 
         failed to show he sustained any other injury which arose out of 
 
         and in the course of his employment at Lorenz & Jones Marine 
 
         Distributing, Inc.
 
         
 
              The question thus becomes what is the extent of claimant's 
 
         injury?
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
 
 
                               
 
                                                         
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro V.DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W. 2d 667 (1964).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              It is essential to note that all the treatment which 
 
         claimant has received has centered on the upper extremities.  
 
         When describing his current symptoms, claimant, too, centers on 
 
         problems with the upper extremity notably a loss of grip, 
 
         numbness in the extremities and shooting pain in the arms.  Dr. 
 
         Breedlove does relate claimant's impairment to the body as a 
 
         whole, but his opinion is subject to question not only for the 
 
         change of opinion with regard to the right upper extremity as 
 
         noted previously, but also because Dr. Breedlove appears to base 
 
         his rating solely on claimant's subjective symptoms of pain 
 
         rather than any other objective symptoms of any difficulty.  Dr. 
 
         Neff notes throughout that claimant has a normal range of motion.  
 
         In the case of Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 
 
         1986), the Iowa Supreme Court vacated a court of appeals decision 
 
         and, although primarily dealing in that case with a hip joint, 
 
         indicated that the court would look in each instance now at 
 
         shoulder injuries based on the "extent of the injury."  No longer 
 
         does the court make a blanket determination that a shoulder 
 
         injury should be treated as a scheduled injury but rather as a 
 
         body as a whole injury.  The court in the Lauhoff case has ruled 
 
         that the extent of the injury in each case will be examined and 
 
         will be treated as a body as a whole injury only if the claimant 
 
         establishes that the extent of the injury extends beyond the 
 
         schedule.  It must be determined that claimant has failed to show 
 
         his injury extends beyond the schedule and accordingly claimant's 
 
         disability, if any, must be evaluated by the functional 
 
         impairment record.
 
         
 
              In February of 1988, Dr. Breedlove found that claimant had a 
 
         15 percent impairment to the body as a whole based on a 5 percent 
 
         impairment for each elbow and 5 percent for the left shoulder. 
 
         However, by May 1988, Dr. Breedlove found claimant's whole person 
 
         impairment to be 6 percent based on a 5 percent permanent partial 
 
         impairment of the left shoulder and a 5 percent impairment of the 
 
         right elbow.  It has previously been concluded that claimant has 
 
         failed to establish that the allegations with regard to his right 
 
         elbow are causally connected,to his employment.  Dr. Neff found 
 
         claimant to have a 3 percent impairment to the left hand and 
 
         wrist based on documented carpal tunnel syndrome.  By the time 
 
         Drs. Breedlove and Neff rendered their opinions, claimant was 
 
         working in self-employment.  As noted above, neither doctor 
 
                                                
 
                                                         
 
         separated claimant's impairment between what was caused by his 
 
         work with Lorenz & Jones and his self-employment.  Although 
 
         claimant's symptoms originally began while employed with 
 
         defendant employer, claimant was engaged in the same kind of 
 
         work, while working for himself, from March 1988 on.  The 
 
         undersigned cannot conclude that any permanency which the 
 
         claimant has demonstrated is proximately caused by his employment 
 
         with Lorenz & Jones and therefore can make no award for permanent 
 
         partial disability benefits.
 
         
 
              Claimant's injury did, however, cause a temporary disability 
 
         and, pursuant to Iowa Code section 85.33, is entitled to 
 
         temporary total disability benefits for the stipulated period of 
 
         November 22, 1989 through March 7, 1988, a period of 15.286 
 
         weeks. Claimant, having been paid benefits for the period from 
 
         November 22, 1987 through April 5, 1988, has been paid all the 
 
         benefits to which he is entitled and shall take nothing further 
 
         as a result of these proceeding.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant began employment with Lorenz & Jones Marine 
 
         Distributing, Inc., while in high school and worked until 
 
         November 21, 1987 with job duties of repairing boat propellers 
 
         including welding, grinding, sandblasting and hammering.
 
         
 
              2.  Claimant originally sought medical treatment for pain in 
 
         his left elbow in November of 1987.
 
         
 
              3.  Claimant later complained of pain in both extremities 
 
         and numbness.
 
         
 
              4.  Claimant has a documented case of carpal tunnel syndrome 
 
         on the left.
 
         
 
              5.  Claimant's carpal tunnel syndrome arose out of and in 
 
         the course of his employment with defendant employer.
 
         
 
              6.  Claimant's other symptoms were not shown to arise out of 
 
         and in the course of his employment with defendant employer.
 
         
 
              7.  Claimant has been engaged in self-employment repairing 
 
         boat propellers since March 1988.
 
         
 
              8.  Claimant has a permanent partial impairment as a result 
 
         of the carpal tunnel syndrome.
 
         
 
              9.  Claimant has failed to show the impairment is causally 
 
         connected to his employment with defendant employer as opposed to 
 
         other sources.
 
         
 
              10.  Claimant was temporarily totally disabled for 15.286 
 
                                                
 
                                                         
 
         weeks from November 22, 1987 through March 3, 1988, inclusive, as 
 
         a result of his injury.
 
         
 
              11.  Claimant was paid weekly compensation benefits for the 
 
         period from November 22, 1987 through April 5, 1988.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant sustained an injury on November 4, 1987 which 
 
         arose out of and in the course of his employment with defendant 
 
         employer.
 
         
 
              2.  Claimant has shown his injury does not extend beyond a 
 
         scheduled injury.
 
         
 
              3.  Claimant has established an entitlement to 15.286 weeks 
 
         of temporary total disability benefits for the period from 
 
         November 22, 1987 through March 7, 1988, inclusive.
 
         
 
              4.  Claimant has failed to show the injury was the cause of 
 
         any permanent disability causally connected to his employment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant, having been paid all benefits to which he is 
 
         entitled, shall take nothing further as a result of these 
 
         proceedings.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Gregory A. Skinner
 
         Attorney at Law
 
         2309 W. 1st St
 
         Ankeny, IA  50021
 
         
 
         Mr. Brian L. Campbell
 
         Attorney at Law
 
                                                
 
                                                         
 
         1100 Des Moines Building
 
         Des Moines, IA  50309
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51100; 51800
 
                                            Filed June 26, 1989
 
                                            Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARIN MURPHY,
 
         
 
              Claimant,
 
                                                   File No. 869384
 
         vs.
 
         
 
         LORENZ & JONES MARINE                  A R B I T R A T I 0 N 
 
         DISTRIBUTING, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51100; 51800
 
         
 
              Claimant's injury, found to arise out of and in the course 
 
         of his employment, was limited to a documented case of carpal 
 
         tunnel syndrome on the left.  Other alleged symptoms were not 
 
         found to arise out of and in the course of employment.  After 
 
         ceasing work for defendant employer, claimant entered 
 
         self-employment of the same nature.  Claimant awarded temporary 
 
         total disability but failed to show any permanency.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DOROTHY CAROL KLEIN,          :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 869455
 
            vs.                           :
 
                                          :
 
            3M,                           :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            OLD REPUBLIC INS. CO.,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This action was originally filed as a review-reopening 
 
            case but the parties have been proceeding on the basis that 
 
            it was an arbitration case and at the hearing agreed that 
 
            this matter would proceed as an arbitration case and the 
 
            petition is amended accordingly.
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration wherein the 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits and healing period or temporary total disability 
 
            benefits as a result of an alleged injury occurring on 
 
            September 22, 1987.  This case was heard in Des Moines, 
 
            Iowa, on August 7, 1990.  The record in the proceeding 
 
            consists of the testimony of claimant and Connie Husted; and 
 
            Joint Exhibits 1 through 6.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged disability is causally 
 
            connected to her injury;
 
            
 
                 2.  The nature and extent of claimant's disability and 
 
            entitlement to benefits; and
 
            
 
                 3.  An 85.27 issue as to causal connection of the 
 
            medical and, in particular, the necessity and reasonableness 
 
            of a Dr. Carlson bill.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 66 years old and completed the ninth grade.  
 
            Claimant has had no other type of formal education since 
 
            that time.  Claimant began working for defendant employer in 
 
            July of 1979.  Claimant's previous employment history began 
 
            in 1960 and involved farming, grocery clerking, and sewing 
 
            clothes.  These were manual labor jobs requiring the use of 
 
            the arms, back, shoulders and hands.
 
            
 
                 Claimant described her jobs with defendant employer.  
 
            Claimant apparently got along fine in her jobs which were of 
 
            a manual labor type until she was put on a special job of 
 
            slittering ribbon around July of 1984.  Prior to this date, 
 
            claimant appeared to have had no physical problems or 
 
            complaints that are material hereto.  Claimant said she 
 
            worked at this particular slittering ribbon project for two 
 
            months straight using her arms in the same way all the time.  
 
            In September 1984, claimant developed  severe bursitis in 
 
            her arms and both upper shoulders.  Claimant received 
 
            medical treatment and was off three weeks as a result of 
 
            this condition and was placed on a 10 pound restriction.
 
            
 
                 The medical record in evidence shows that claimant has 
 
            treated her bursitis and shoulder problems up to February 
 
            1987.  It appears she was having weekly treatments during a 
 
            two year period, February 1985 to February 1987 with a Dr. 
 
            McCormick for her neck and shoulders.  Claimant contends 
 
            that during this 1984 to February 1987 period she never 
 
            missed work because of her problems except for approximately 
 
            three weeks in 1984 when she was recovering from her severe 
 
            bursitis.
 
            
 
                 In August 1987, claimant attempted and was unable to 
 
            strap a pallet loaded with tape.  At this time, she incurred 
 
            pain in her shoulders and neck but continued working until 
 
            the end of the shift.  On September 22, 1987, claimant 
 
            incurred a pain in her left shoulder which went into her 
 
            arms while packaging tape.  Claimant sought treatment with 
 
            Martin S. Rosenfeld, D.O., a specialist, which included a 
 
            series of Cortisone shots.  Claimant said the pain continued 
 
            and went into her neck and shoulder blades also.
 
            
 
                 On April 25, 1988, claimant was released to return to 
 
            work and went to defendant employer.  Claimant contends the 
 
            employer did not have any work within her medical 
 
            restrictions and never contacted her.  Mrs. Husted, the 
 
            insurance and personnel coordinator with defendant employer, 
 
            indicated the employer had no jobs within claimant's 
 
            restrictions as the jobs required at least a 30 pounds 
 
            minimum weight requirement.
 
            
 
                 Claimant has not worked since September 22, 1987.  
 
            Claimant was still considered an employee up to April 1, 
 
            1989, when she voluntarily retired because she had reached 
 
            the age of 65.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Although claimant contends she was not originally 
 
            anticipating retiring at age 65, she did go to defendant 
 
            employer at the end of March 1989 and filled out the papers 
 
            necessary to bring about an age 65 retirement.  At that 
 
            time, claimant already was in the process of seeking social 
 
            security retirement benefits.  She said she had already been 
 
            on social security disability.  In her July 27, 1989 
 
            deposition, page 31, claimant indicated that "Well, I think 
 
            I've worked a lifetime.  I just don't have any desire to 
 
            have a job."  The undersigned finds that the claimant 
 
            intended to retire at age 65 and that many factors entered 
 
            into her decision including her medical history, physical 
 
            problems, many of which were not associated with her alleged 
 
            September 22, 1987 injury.  The events and fallout from her 
 
            September 22, 1987 injury were just one factor of many that 
 
            affected her decision.
 
            
 
                 On March 2, 1989, claimant had rotator cuff surgery.  
 
            Defendant contends that claimant's problems in September 
 
            1987 and even more so her March 1989 surgery are not a 
 
            result of any injury on September 22, 1987, but, in fact, 
 
            claimant's problems are the result of a 1984 event in which 
 
            she developed bursitis and problems in her neck, shoulders 
 
            and arms and was off three weeks.  Defendants contend that 
 
            there is no evidence of causal connection between claimant's 
 
            complaints and her cumulative injury of September 22, 1987.  
 
            Although it is true there is no specific mention prior to 
 
            1989 as to a rotator cuff tear or problem, there is no 
 
            question claimant was having trouble in her shoulders and 
 
            shoulder blade areas and for the most part, this condition 
 
            to a certain degree was continuous even to the present.  The 
 
            parties stipulated that claimant incurred a cumulative 
 
            injury on September 22, 1987 which arose out of and in the 
 
            course of her employment.  Of course, they highly dispute 
 
            the causal connection.  This agency's experience and 
 
            expertise has seen many times a shoulder injury that has 
 
            gone into the body as a whole and an ultimate rotator cuff 
 
            problem has resulted that was missed or misdiagnosed or not 
 
            clearly defined early in the medical treatment.  Defendants 
 
            contend there is no evidence of causation or opinions 
 
            concerning the same by any medical doctor.  The undersigned 
 
            takes exception to that conclusion as there is evidence in 
 
            several places in the record of which Dr. Rosenfeld 
 
            specifically reports or opines that claimant's problems are 
 
            related to her September 22, 1987 cumulative injury, at 
 
            least, in part (Joint Exhibit 1, pages 15, 17, 29, 35 and 
 
            36).  Although it appears in Joint Exhibit 1, page 26, that 
 
            Dr. Rosenfeld did not have all of claimant's medical records 
 
            which led him to conclude that he found that claimant had no 
 
            preexisting problems in her shoulders prior to September 22, 
 
            1987, it is obvious in Dr. Rosenfeld's August 18, 1988 
 
            letter (Jt. Ex. 1, p. 29) that he received that additional 
 
            information and that he then opined an impairment to 
 
            claimant's shoulders and body as a whole and then related a 
 
            percent to her September 22, 1987 injury and a percent to 
 
            her preexisting injury.
 
            
 
                    Thank you for your letter of August 10th 
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 regarding D. Carol Klein and for enclosing the 
 
                 papers that you did.  I, unfortunately, had not 
 
                 seen some of them in looking through her chart but 
 
                 upon reviewing it I can see where she was seen in 
 
                 our office in 1984 with right shoulder and neck 
 
                 problems.
 
            
 
                    ....
 
            
 
                    After reviewing the chart, I still would 
 
                 concur, with my previous evaluation of fifteen 
 
                 (15) percent impairment to each shoulder and would 
 
                 feel that fifteen (15) percent to the body as a 
 
                 whole for each shoulder for a total of thirty (30) 
 
                 percent.  I would feel that out of the fifteen 
 
                 (15) percent on the right shoulder ten (10) 
 
                 percent is from the September, 1987 injury and 
 
                 that of the fifteen (15) percent seven (7) percent 
 
                 on the left shoulder is due to the September 
 
                 injury.  I feel that this covers the loss of 
 
                 motion and the loss of the use of these 
 
                 extremities as best as can be determined.
 
            
 
            (Jt. Ex. 1, p. 29)
 
            
 
                 It is confusing in Joint Exhibit 1, page 29, to some 
 
            extent in that the doctor refers to a 15 percent impairment 
 
            to the shoulder and also to the body as a whole.  The 
 
            parties did stipulate that if, in fact, liability and causal 
 
            connection is found, the injury would be an industrial 
 
            disability.  The undersigned, therefore, finds that the 
 
            doctor concluded claimant has a 30 percent permanent partial 
 
            impairment to her body as a whole as a result of injuries to 
 
            her two shoulders which would result in, because of the 
 
            location of the injury, an injury to claimant's body as a 
 
            whole.  The undersigned also finds that claimant's 
 
            preexisting injuries account for 13 percent of claimant's 
 
            current problems and that 17 percent of claimant's 
 
            impairment to her body as a whole are causally related to 
 
            her September 22, 1987 injury.  The undersigned further 
 
            finds that of this 17 percent impairment, 10 percent of 
 
            claimant's body as a whole injury is the result of her 
 
            September 22, 1987 right shoulder cumulative injury and 7 
 
            percent is the result of claimant's September 22, 1987 
 
            cumulative left shoulder injury.
 
            
 
                 Dr. Rosenfeld last saw claimant on May 22, 1990.  On 
 
            July 11 and 19, 1990 (Jt. Ex. 1, pp. 35,36), the doctor 
 
            again opined with the same opinion as previously referred to 
 
            above regarding the extent of claimant's impairment and the 
 
            apportionment between her September 22, 1987 cumulative 
 
            injury and her prior injury.
 
            
 
                 The defendants contend that the March 2, 1989 surgery 
 
            was not the result of claimant's September 22, 1987 
 
            cumulative injury but was, in fact, either the result of her 
 
            1984 injury or was a new injury.  It is obvious in reading 
 
            the medical records and Dr. Rosenfeld's report that he 
 
            considers the March 2, 1989 surgery necessary and the result 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of the September 22, 1987 cumulative injury.  Dr. Rosenfeld, 
 
            in fact, performed the surgery.
 
            
 
                 The parties have stipulated that claimant had a healing 
 
            period from September 23, 1987 to and including May 10, 
 
            1988, but they disputed the March 2, 1989 to March 30, 1989 
 
            period which involved exactly four weeks.  Claimant contends 
 
            that was an additional healing period and defendants contend 
 
            that it was not an additional period as neither it nor the 
 
            March 1989 surgery was causally connected.  The undersigned 
 
            finds that the March 2, 1989 surgery was causally connected 
 
            to claimant's cumulative September 22, 1987 injury, and 
 
            further finds that claimant did incur a healing period of 
 
            four weeks, beginning March 2, 1989 up to and not including 
 
            March 30, 1989.
 
            
 
                 Now having found causal connection, the next issue is 
 
            the extent of claimant's industrial disability.  Claimant 
 
            has not worked since September 22, 1987.  She obviously has 
 
            not attempted to work to any real extent.  Although claimant 
 
            contends that she did go to her place of employment and gave 
 
            the impression that she was looking for work, the 
 
            undersigned does not believe she was sincerely looking for 
 
            work.  It was obvious she did not obtain any work with 
 
            defendant employer at that time.  The undersigned finds that 
 
            the employer has made a good faith effort to accommodate 
 
            claimant due to her physical problems and to keep claimant 
 
            employed and to accommodate any restrictions she had.  
 
            Claimant did not go and look for any other jobs when it was 
 
            apparent defendant employer did not have a job within her 
 
            restrictions.  It appears claimant was satisfied to remain 
 
            on long-term disability or other available benefits until 
 
            she voluntarily filled out papers and retired effective 
 
            April 1, 1989.  It is found claimant did have preexisting 
 
            injuries.  She has also had other health problems not 
 
            related to any injury and there appears to be several 
 
            surgeries in relation to nonrelated matters in 1986 and 
 
            1987.
 
            
 
                 Taking into consideration claimant's age, preexisting 
 
            injuries, the nature of her September 22, 1987 cumulative 
 
            injury, her motivation, loss of income, and concerning all 
 
            those other items that are to be considered in determining 
 
            industrial disability, the undersigned finds that claimant 
 
            has a 17 percent industrial disability as a result of her 
 
            cumulative September 22, 1987 injury.
 
            
 
                 The undersigned further finds that claimant's September 
 
            22, 1987 injury did not materially accelerate or worsen her 
 
            preexisting 1984 injury but, in fact, the September 22, 1987 
 
            cumulative injury was a new injury and the combined effects 
 
            of that injury and claimant's preexisting injury resulted in 
 
            the percentages and apportionment that have previously been 
 
            found herein.
 
            
 
                 As to the 85.27 issue, which basically involved whether 
 
            claimant's medical expenses and treatment were causally 
 
            connected to her September 22, 1987 injury, the undersigned 
 
            finds that with causal connection having been found, the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            defendants are responsible for all of claimant's medical 
 
            expenses which have been incurred, particularly those bills 
 
            that have not previously been paid which are attached to the 
 
            prehearing report and marked Exhibit 7.  These bills include 
 
            the bills of Dr. C.W. Carlson, which the undersigned finds 
 
            were reasonable and necessary in addition to being causally 
 
            connected.
 
            
 
                 The defendants raised the issue of 85.26 in the 
 
            prehearing report but indicated that that would be an issue 
 
            if there was a finding of causation or liability based on a 
 
            1984 injury.  Claimant was not alleging any 1984 injury or a 
 
            claim for anything connected therewith.  From the facts of 
 
            this claim, 85.26 was not a viable issue and, therefore, is 
 
            not an issue that will be further addressed herein.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            22, 1987 is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 It is further concluded:
 
            
 
                 That claimant incurred a cumulative injury on September 
 
            22, 1987 which arose out of and in the course of her 
 
            employment.
 
            
 
                 That claimant has a 30 percent impairment to her body 
 
            as a whole, 17 percent being the result of and caused by 
 
            claimant's cumulative September 22, 1987 injury and 13 
 
            percent being the result of claimant's preexisting injury in 
 
            1984.
 
            
 
                 That claimant incurred two healing periods, the first 
 
            beginning September 23, 1987 to and including May 10, 1988, 
 
            and the second beginning March 2, 1988 for a four week 
 
            period up to but not including March 30, 1989.
 
            
 
                 Tgat claimant's September 22, 1987 cumulative injury 
 
            caused claimant to incur a 17 percent industrial disability.
 
            
 
                 That claimant's cumulative September 22, 1987 injury 
 
            resulted in claimant having a March 2, 1989 surgery.
 
            
 
                 That claimant's medical bills incurred as a result of 
 
            claimant's cumulative September 22, 1987 injury are to be 
 
            paid by defendants, including the unpaid bills that are 
 
            attached to the prehearing report as Exhibit 7, including 
 
            Dr. Carlson's bill, whose bill was reasonable and necessary.
 
            
 
                                      order
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred sixty-two and 27/100 
 
            dollars for the period beginning September 23, 1987 to and 
 
            including May 10, 1988 (thirty-three (33) weeks), and for 
 
            the period beginning March 2, 1989 up to and not including 
 
            March 30, 1989, (four (4) weeks), the grand total being 
 
            thirty-seven (37) weeks.
 
            
 
                 That defendants shall pay unto claimant eighty-five 
 
            (85) weeks of permanent partial disability benefits at the 
 
            rate of two hundred sixty-two and 27/100 dollars ($262.27) 
 
            beginning May 11, 1988 with an interruption of four (4) 
 
            weeks for the second healing period and beginning again 
 
            March 31, 1989.
 
            
 
                 That defendants shall pay the medical expenses of 
 
            claimant incurred as a result of the September 22, 1987 
 
            injury and which outstanding bills are represented by 
 
            Exhibit 7 attached to the prehearing report, including the 
 
            bill of Dr. Carlson.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid seventy-five (75) weeks.
 
            
 
                 That defendant employer shall be given credit for the 
 
            medical bills already paid which are being ordered herein 
 
            paid by defendants so as to reimburse defendant employer's 
 
            self-insured medical plan.
 
            
 
                 Defendants shall pay interest on the benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of August, 1990.
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 N Market St
 
            Oskaloosa IA 52577
 
            
 
            Mr Roger L Ferris
 
            Attorney at Law
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            1900 Hub Tower
 
            Des Moines IA 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1108.50; 5-1804; 5-2503
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DOROTHY CAROL KLEIN,          :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 869455
 
            vs.                           :
 
                                          :
 
            3M,                           :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            OLD REPUBLIC INS. CO.,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRANK BARTOS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 869516
 
            DOUDS, INC.,                  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            U.S.F.& G.,                   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on March 14, 1991, at 
 
            Ottumwa, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks additional permanent partial disability 
 
            benefits as a result of an injury on November 16, 1987.  The 
 
            record in the proceedings consist of the testimony of 
 
            claimant; claimant's exhibits 1 through 33; and defendants' 
 
            exhibits A, B, C, E and F.
 
            
 
                                      issues
 
            
 
                 The sole issue for resolution is the extent of 
 
            claimant's disability and whether claimant's disability is 
 
            to his left upper extremity, a scheduled member, or to his 
 
            body as a whole.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 46-year-old high school graduate.  
 
            Claimant began working for defendant employer in June 1977 
 
            and is currently working for them.
 
            
 
                 On November 16, 1987, claimant was driving the company 
 
            truck and while holding a 500 hundred foot extension cord 
 
            with his left arm out the window, the cord caught and 
 
            whipped claimant's arm against the window frame and broke 
 
            his arm two inches below the shoulder.  Claimant saw various 
 
            doctors and surgery was done by Marvin H. Dubansky, M.D.  
 
            Claimant is right handed.
 
            
 
                 Claimant said the doctor cut away bone and replaced it 
 
            with pieces of bone from his right hip and placed a plate 
 
            with screws into his arm.  Claimant went through physical 
 
            therapy and returned to full-time work on April 30, 1990.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant had returned to work for nine to ten weeks in 1988, 
 
            at which time Dr. Dubansky decided to put in a bone 
 
            stimulator and claimant then went through a very lengthy 
 
            healing period.  There is no dispute in this case as to any 
 
            healing period.
 
            
 
                 Claimant testified he still has problems with his left 
 
            arm.  He indicated he is unable to lift it above his head as 
 
            far as his right arm and it seems weaker.  Claimant related 
 
            his left shoulder pops out of joint if he extends his left 
 
            arm.  Claimant described the pop out in the socket-ball area 
 
            above the arm break.  He said his arm could easily break 
 
            again with a plate in it and that the plate will not be 
 
            removed due to the nerves in the area.  Claimant contends he 
 
            can't push or his arm will collapse but admitted he has no 
 
            weight restrictions currently.  He said he cannot climb on 
 
            equipment or a ladder, and cannot push with both hands.  He 
 
            emphasized he is okay if he is doing something where only 
 
            one arm is needed.  Vibrations and mowing the lawn bother 
 
            his arm.
 
            
 
                 Claimant returned to work as a truck driver making the 
 
            same wages as he did at the time of his injury.  He said he 
 
            lost 79 cents per hour in the two and one-half years he was 
 
            off work due to the injury.  Claimant said 30 percent and 20 
 
            percent were the respective 1989 and 1990 cost of living 
 
            increases and there was a 20 cent per hour regular increase 
 
            during this time.  Actually, this amounted to approximately 
 
            70 cents and not the 79 cents to which claimant testified.  
 
            After calling this to the claimant's attention, it appears 
 
            that the 70 cents figure is correct.
 
            
 
                 Claimant has missed no work since his return in April 
 
            1990 except for a doctor appointment.  The last doctor visit 
 
            was in June 1990.
 
            
 
                 Marvin H. Dubansky, M.D., testified on January 21, 
 
            1991, through a telephonic deposition.  He testified that he 
 
            first saw claimant on July 20, 1988.  He related claimant's 
 
            history which included this November 1987 injury in which 
 
            claimant incurred a fracture at the juncture of the proximal 
 
            and middle third of the left humerus.  Dr. Dubansky first 
 
            tried an electrical process for several months to try to 
 
            heal claimant's nonunion of his humerus and stiff shoulder 
 
            problems.  This did not work so on May 5, 1989, he performed 
 
            an open reduction internal fixation with an 8-hole AO plate 
 
            and screws and a bone graft with the bone coming from 
 
            claimant's right ilium (pelvic bone) (Defendants' Exhibit A, 
 
            page 6).
 
            
 
                 The doctor said that as of June 20, 1990, claimant had 
 
            little or no pain in the humerus itself but that the 
 
            claimant does get an electric-like shock sometimes with 
 
            pressure.  He said the claimant's main problem was 
 
            difficulty in moving and using the shoulder which at times 
 
            will click and feel like it is out of place.
 
            
 
                 Dr. Dubansky indicated he did nothing as to claimant's 
 
            shoulder and that only claimant's arm was involved (Def. Ex. 
 
            A, p. 9), but he later refers to the instability of the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            shoulders and that the shoulder itself, from a medical 
 
            standpoint, is impaired (Def. Ex. A, pp. 11 and 12).  The 
 
            doctor emphasized that the AMA Guides rate the shoulder as 
 
            an upper extremity.  He indicated under the AMA Guides it is 
 
            either an upper extremity or body as a whole and the 
 
            legislature hasn't defined it for him (Def. Ex. A, p. 11).
 
            
 
                 Claimant's medical records show he had considerable 
 
            physical therapy (Def. Ex. E).  Dr. Dubansky referred to 
 
            this and indicated "we basically got nowhere." (Def. Ex. A, 
 
            p. 13)  Although the doctor indicated the 10 percent 
 
            impairment he gave to claimant's shoulder would improve in 
 
            time, it appears to the undersigned it is permanent as the 
 
            doctor said the physical therapy wasn't successful.  He also 
 
            related claimant's back problems to this November 16, 1987 
 
            work injury (Def. Ex. A, pp. 13 and 14).  The doctor opined 
 
            a 19 percent permanent impairment to claimant's upper right 
 
            extremity (Def. Ex. A, p. 7).  He then referred to an 
 
            additional 10 percent which amounted to a 28 percent 
 
            permanent impairment which will later be addressed through 
 
            his medical report (Def. Ex. A, p. 8; Cl. Ex. 1, pp. 1 and 
 
            2).
 
            
 
                 It is obvious to the undersigned that the doctor 
 
            related 28 percent permanent impairment to claimant's upper 
 
            extremity is due to the deficiency in terminology of the AMA 
 
            Guides and that claimant's shoulder injury as described by 
 
            Dr. Dubansky and the medical records is into claimant's body 
 
            as a whole (Def. Ex. F, p. 35; Cl. Ex. 1, p. 2).
 
            
 
                 Claimant's medical records reflect the seriousness of 
 
            his fracture and the nonunion problem of healing.  the EBI 
 
            bone healing system was originally attempted alone but was 
 
            not successful in and of itself after having been given an 
 
            eight month trial ending March 29, 1989 (Def. Ex. F, pp. 
 
            2-11).
 
            
 
                 Claimant had his surgery on May 5, 1989, which involved 
 
            an open reduction.  Internal fixation with A-hole plate and 
 
            screws.  Bone graft right ilium (Def. Ex. F, p. 12).
 
            
 
                 On April 27, 1990, claimant was authorized to return to 
 
            a limited driving type of job and to continue his physical 
 
            therapy once a week.  This work was classed as light duty 
 
            (Def. Ex. F, p. 32).
 
            
 
                 On June 20, 1990, Dr. Dubansky gave his impairment 
 
            rating (Def. Ex. F, p. 35; Cl. Ex. 1, p. 2).
 
            
 
                 On August 30, 1990, Dr. Dubansky further explained his 
 
            impairment and said the impairment is also due to the 
 
            limited motion in the shoulder.  He did not feel there is 
 
            any impairment in the area in which he obtained the bone 
 
            graft (Cl. Ex. 1).
 
            
 
                 Claimant has not been able to return to his former job 
 
            with defendant employer as a powderman.  Dr. Dubansky, in 
 
            his January 1991 deposition, indicated claimant can handle 
 
            the truck driving job which is a job of much lighter duty 
 
            than the job he had at the time of his injury (Def. Ex. A, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            p. 15).  The job at the time of his injury involved heavy 
 
            lifting overhead and shoveling (Cl. Ex. 31, pp. 266, 
 
            239-280; Cl. Ex. 32, pp. 283-285).
 
            
 
                 The undersigned congratulates the employer for keeping 
 
            claimant in its employment and making every effort to have a 
 
            job for which claimant could return that would comply as 
 
            much as possible to his medical condition.  This, of course, 
 
            not only benefits the employee but also benefits the 
 
            employer under the ruling of this decision and the 
 
            conclusion that claimant does have a body as a whole injury 
 
            and an industrial disability.  The employer's work with and 
 
            coordination with the rehabilitation personnel and the 
 
            doctors is praiseworthy.
 
            
 
                 Claimant was off for a considerable length of time.  
 
            Healing period is not an issue.  Claimant was eager to 
 
            return to work and, in fact, tried it on one occasion and it 
 
            did not last very long.  He obviously is motivated (Cl. Ex. 
 
            26, p. 208).
 
            
 
                 The attorneys were asked as to any duplication of 
 
            evidence.  The answer was basically "no" or if there was, it 
 
            was minor or eliminated.  The undersigned finds that the 
 
            parties did not follow the hearing assignment order as there 
 
            was a considerable amount of duplication in addition to some 
 
            exhibits that were of no use to the undersigned, including, 
 
            but not limited to, medical bills that were not an issue and 
 
            a second copy of Dr. Dubansky's deposition.  In some 
 
            instances, there were at least three copies of certain 
 
            documents.  For the most part, the exhibits could have been 
 
            joint and this would have reduced the exhibits and the 
 
            volume of paper by over one-half.  This is being taken into 
 
            consideration in the ultimate assessing of court costs.
 
            
 
                 The undersigned finds that claimant has an impairment 
 
            that involves not only his upper extremity but also his body 
 
            as a whole, and that claimant has an industrial disability.
 
            
 
                 Claimant is making approximately 10 percent less income 
 
            than he was making at the time of his injury due to the fact 
 
            that he missed out on some cost of living increases and 
 
            regular increases.
 
            
 
                 Claimant has not been able to return to his original 
 
            job and still has the plate and screws in his arm.  Claimant 
 
            is lucky to have an employer that has worked with him and 
 
            has accommodated him.  This has helped reduce the extent of 
 
            claimant's industrial disability.  Claimant appears to be 
 
            industrious and desires to work and the record indicates 
 
            that he was willing and hoping to be released by the doctor 
 
            even when he was not healed and recovered so that he could 
 
            get back to work.  He attempted to work but was not 
 
            successful and was in good health prior to his injury.
 
            
 
                 Taking into consideration claimant's age, prior and 
 
            present medical history, work experience, transferable 
 
            skills, education, location and severity of his injury and 
 
            healing period, motivation and functional impairment, and 
 
            the employer's cooperation in keeping claimant employed, the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            undersigned finds that claimant has a loss of earning 
 
            capacity and claimant's work-related injury caused claimant 
 
            to incur a 25 percent industrial disability.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            16, 1987 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 The mere fact that the rating pertains to a scheduled 
 
            member does not mean the disability is restricted to a 
 
            schedule.  Pullen v. Brown & Lambrecht Earthmoving, 
 
            Incorporated, II Iowa Industrial Commissioner Reports 308 
 
            (Appeal Decision 1982).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant has an impairment to his left upper extremity 
 
            and to his body as a whole which was caused by claimant's 
 
            work-related November 16, 1987 injury.
 
            
 
                 Claimant has been unable to return to his former 
 
            position with defendant employer but has returned to full 
 
            employment with defendant employer at a lighter duty job to 
 
            accommodate claimant's work injury.
 
            
 
                 Defendant employer has accommodated claimant's work 
 
            injury and has fully cooperated in helping claimant maintain 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            his employment.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five weeks of permanent partial disability benefits 
 
            at the rate of one hundred eighty-two and 14/100 dollars 
 
            beginning April 30, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33, except that claimant shall 
 
            pay sixty-five dollars ($65.00) of the costs.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk IA 52632
 
            
 
            Ms Iris J Post
 
            Attorney at Law
 
            2222 Grand Ave
 
            P O Box 10434
 
            Des Moines IA 50306
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803.1
 
                      Filed April 10, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRANK BARTOS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 869516
 
            DOUDS, INC.,                  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            U.S.F.& G.,                   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1803.1
 
            Found claimant had a 25% industrial disability.  Injury was 
 
            to claimant's body as a whole and not limited to left upper 
 
            extremity.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DARRELL PELTON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 869529
 
            vs.                           :
 
                                          :       A T T O R N E Y
 
            ALDI, INC.,                   :
 
                                          :           L E I N
 
                 Employer,                :
 
                                          :       A P P R O V A L
 
            and                           :
 
                                          :       D E C I S I O N
 
            KEMPER INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding upon an application for approval 
 
            of an attorney lien brought by John Behnke, a former 
 
            attorney of claimant, against the claimant seeking approval 
 
            for assertion of his attorney lien as a result of services 
 
            he allegedly performed with reference to a claimed work 
 
            injury on October 8, 1987.  On October 29, 1991, the hearing 
 
            was held on Behnke's petition and the matter was considered 
 
            fully submitted at the close of this hearing.  It should be 
 
            noted that claimant appeared personally at the hearing.  
 
            However, due to the imposition of sanctions by this agency 
 
            against claimant, he was not allowed to participate in the 
 
            proceedings but was given an opportunity to make a statement 
 
            for the record.  Claimant declined to make such a statement.
 
            
 
                 The evidence submitted at hearing by Attorney Behnke is 
 
            set forth in the hearing transcript.
 
            
 
                                      issue
 
            
 
                 The only issue submitted is the reasonableness of the 
 
            asserted attorney lien.
 
            
 
                                 findings of fact
 
            
 
                 Attorney Behnke testified at hearing and he was the 
 
            only witness.  From a review of all of the evidence submit
 
            ted, the undersigned finds as follows:
 
            
 
                 Darrell Pelton is a claimant in litigation pending 
 
            before this agency in which he is seeking workers' compensa
 
            tion benefits as a result of an alleged injury on October 8, 
 
            1987.  On July 26, 1989, claimant entered into an oral con
 
            tract providing for a contingent fee for attorney, John 
 
            Behnke, of one-third of any monies gained as a result of 
 
            legal work on claimant's behalf.  On or about April 24, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1990, claimant terminated Attorney Behnke's services as his 
 
            attorney as claimant moved his residence and wanted more 
 
            accessible counsel.  He eventually retained another 
 
            attorney.
 
            
 
                 Between July 1989 and July 1990, Attorney Behnke per
 
            formed 16.5 hours of legal work in conjunction with 
 
            claimant's case.  An itemization of his time is contained in 
 
            an attachment to the petition for approval of the fees 
 
            herein.  At the time of the hearing on this lien applica
 
            tion, the case of Darrell Pelton was still pending before 
 
            the Iowa Industrial Commissioner.
 
            
 
                 Attorney Behnke seeks approval of the lien up to a max
 
            imum of $1,237.50 subject to later review upon the comple
 
            tion of litigation.  This amount represents the sum of 
 
            $75.00 per hour for each hour of legal services expended.  
 
            As a result of these efforts, claimant has obtained a higher 
 
            impairment rating by another physician.  The extent to which 
 
            this rating is beneficial to claimant is unknown at this 
 
            time and will not be known until the litigation is completed 
 
            or settled.
 
            
 
                 It is further found that John Behnke is a licensed 
 
            attorney in the State of Iowa and has been a specialist in 
 
            workers' compensation law since 1971.  Behnke has practiced 
 
            law since 1962.  Neither a one-third contingent fee arrange
 
            ment nor a straight fee of $75.00 per hour, a customary fee 
 
            in Attorney Behnke's area of practice, Waterloo, Iowa, would 
 
            on its face be unreasonable for Behnke's services.
 
            
 
                 However, a total of two point four hours of Behnke's 
 
            services were charged to claimant after Behnke was informed 
 
            of his termination by claimant.  Most of these charges are 
 
            for time spent to collect his fees.  This is not deemed time 
 
            expended on behalf of claimant but was expended by Attorney 
 
            Behnke on behalf of himself.
 
            
 
                 Therefore, the assertion of the lien for time expended 
 
            on behave of claimant prior to his termination in the amount 
 
            of 14.1 hours at the rate of $75.00 per hour, or a total of 
 
            $1,057.50 is found to be reasonable, pending later review of 
 
            this amount when the litigation is completed.
 
            
 
                    
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Attorney John Behnke seeks approval pursuant to Iowa 
 
            Code section 86.39 of the amount of his statutory attorney 
 
            lien under Iowa Code section 602.10116 against claimant's 
 
            workers' compensation benefits.  After review of the under
 
            lying contract for services, a lien of one-third upon 
 
            amounts collected up to a sum certain arrived at by claiming 
 
            $75.00 per hour for time expended is deemed reasonable at 
 
            this time.  Furthermore, time expended by an attorney to 
 
            collect his fees should not be charged to claimant.  
 
            Therefore, two point four hours were deducted from the lien 
 
            claim.
 
            
 
                 A final determination of the reasonableness of the fees 
 
            collected by the lien approved herein cannot be made until 
 
            claimant's case is finally resolved as a variety of factors 
 
            are involved, one of which is the result attained.  
 
            Kirkpatrick v. Patterson, 172 N.W.2d 259, 261 (Iowa 1969).  
 
            Indeed, this matter may be rendered moot if nothing is col
 
            lected by the claimant.
 
            
 
                                      order
 
            
 
                 1.  Attorney, John Behnke, may claim a lien on weekly 
 
            workers' compensation benefits payable to claimant in such 
 
            amount as will not exceed one-third (1/3) of such benefits 
 
            up to a maximum of one thousand fifty-seven and 50/l00 dol
 
            lars ($1,057.50).
 
            
 
                 2.  Funds collected as a result of this lien approval 
 
            shall be treated in a manner prescribed by Iowa Code section 
 
            602.10114 through 602.10119 and the Iowa Code of 
 
            Professional Responsibility, E.C. 9-5, D.R. 9-102.  The 
 
            parties should note that this approval is not a determina
 
            tion that the attorney fees collected as a result of the 
 
            claim lien are reasonable.
 
            
 
                 Upon proper application to this agency, such a determi
 
            nation may be made if the parties cannot agree on a proper 
 
            fee when contested case proceedings are finally concluded.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Dennis Currell
 
            Attorney at Law
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            3401 Williams Blvd SW
 
            P O Box 998
 
            Cedar Rapids  IA  52406-0998
 
            
 
            Mr. John E. Behnke
 
            Attorney at Law
 
            Box F
 
            Parkersburg  IA  50665
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1001
 
                                               Filed December 12, 1991
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DARRELL PELTON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 869529
 
            vs.                           :
 
                                          :       A T T O R N E Y
 
            ALDI, INC.,                   :
 
                                          :           L E I N
 
                 Employer,                :
 
                                          :       A P P R O V A L
 
            and                           :
 
                                          :       D E C I S I O N
 
            KEMPER INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1001
 
            
 
                 Contested attorney lien approval proceeding - lien 
 
            granted.