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.