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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD E. YOUNG,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 905177
 
            ARMOUR FOOD COMPANY,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FRED S. JAMES & CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed March 29, 1989.  Claimant alleges that he 
 
            sustained an injury arising out of and in the course of his 
 
            employment with Armour Food Company on January 11, 1989.  He 
 
            now seeks benefits under the Iowa Workers' Compensation Act.
 
            
 
                 Hearing on the arbitration petition was held in Mason 
 
            City, Iowa, on July 9, 1990.  The record consists of 
 
            claimant's exhibits 1 through 17, defendants' exhibits L and 
 
            M, and the testimony of claimant, Carl Brant and Joyce 
 
            Kelly.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report submitted at the 
 
            arbitration hearing, the parties have stipulated:  that an 
 
            employment relationship existed between claimant and 
 
            defendant at the time of the alleged injury; that if 
 
            claimant has sustained permanent disability related to the 
 
            alleged injury, it is an industrial disability to the body 
 
            as a whole; that the appropriate rate of weekly compensation 
 
            is $278.15 (based upon stipulated gross weekly earnings of 
 
            $437.00, a marital status of single and entitlement to two 
 
            exemptions); that the providers of medical services and 
 
            supplies would testify that fees were reasonable and 
 
            incurred for reasonable and necessary medical treatment and 
 
            defendants offer no contrary evidence; that prior to 
 
            hearing, defendants paid claimant salary of $2,240.00 (of 
 
            which $1,600.00 constituted a back pay award in a grievance 
 
            proceeding) and sick pay/disability income of $768.00, for 
 
            all of which credit is sought.
 
            
 
                 Issues presented for resolution include:  whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of his employment on January 11, 1989; whether the 
 

 
            
 
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            alleged injury caused temporary or permanent disability, the 
 
            extent thereof, and the commencement date of the latter; the 
 
            extent of claimant's entitlement to medical benefits; 
 
            whether defendants are entitled to credit for the back pay 
 
            award of $1,600.00.
 
            
 
                 Defendants also asserted the defense of lack of 
 
            authorization with respect to claimant's entitlement to 
 
            medical benefits under Iowa Code section 85.27.  However, 
 
            the undersigned ruled at hearing that defendants are not 
 
            entitled to raise this defense while denying liability on 
 
            the claim.  See, Mason v. Thermo-Gas, file numbers 816116 
 
            and 819978 (App. Decn., July 28, 1989) and numerous other 
 
            agency decisions on that issue.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 This case involves two, arguably three claimed 
 
            injuries.  Claimant, just short of his fiftieth birthday at 
 
            the time of hearing and possessed of a high school diploma, 
 
            has worked for a total of 31 years in the meat packing 
 
            industry, essentially his entire career post-high school.  
 
            He has worked for defendant on two occasions, most recently 
 
            beginning August 31, 1987.  In approximately October, 1988, 
 
            claimant developed problems with his hands and sought 
 
            treatment for bilateral carpal tunnel syndrome.  A company 
 
            physicians' assistant, Diane S. Frakes, P.A., noted on 
 
            January 10, 1989 that claimant was in for recheck of his 
 
            bilateral early carpal tunnel syndrome, but, due to what Ms. 
 
            Frakes perceived as claimant's uncooperative attitude, he 
 
            was released to the care of company physician Kenneth B. 
 
            Washburn, M.D.  Ms. Frakes took him off duty effective the 
 
            next day and claimant was to see Dr. Washburn on January 11.
 
            
 
                 Dr. Washburn's notes of January 11, 1989 reflect that 
 
            claimant's hands were unchanged, but that he complained of 
 
            leg and back problems with a feeling of numbness in the 
 
            right leg for the last two weeks which allegedly came on 
 
            when claimant twisted his back while pushing around pork 
 
            bellies.  Dr. Washburn's impression was of low back pain, 
 
            rule out herniated nucleus polyposus [sic].  X-rays showed 
 
            considerable sclerosis of the lumbosacral junction on the 
 
            right and Dr. Washburn resolved to initially treat claimant 
 
            with bed rest.  Claimant was then taken off work.
 
            
 
                 A radiographic report of January 11, 1989 apparently 
 
            signed by radiologist Martin Schularick, M.D., and Charles 
 
            B. Wilmarth, M.D., showed vacuum disc phenomenon and 
 
            narrowing involving the L4-5 and L5-S1 discs with 
 
            degenerative lipping of the L4 and L5 vertebrae.  Sclerosis 
 
            of the inferior L4 and both L5 end plates were seen as 
 
            related to the degenerative disc disease.  There were no 
 
            compression fractures, but sclerotic degenerative changes at 
 
            L4 through S1.
 
            
 
                 On January 20, Dr. Washburn found claimant ready for 
 
            return to duty with definite improvement in the hands.  
 

 
            
 
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            Claimant was given a return to work slip with a 20-pound 
 
            limitation on lifting for the back problem and with no more 
 
            than 10 pounds overhead lifting.  However, claimant 
 
            developed an aggravation of his back pain while climbing the 
 
            steps at work on that date bringing the return to work slip 
 
            to the nurse or personnel office.  Claimant attributes his 
 
            subsequent lost work to this incident.  He called Dr. 
 
            Washburn that night to complain of this incident, following 
 
            which Dr. Washburn noted in his chart that defendant was 
 
            phoned to give claimant a restriction of no stair climbing 
 
            and that claimant would appear on the following Monday to 
 
            see if he could return to duty.  On the next Monday, 
 
            claimant saw physicians' assistant Frakes.  Ms. Frakes, in 
 
            accordance with Dr. Washburn's instructions, took claimant 
 
            off duty and arranged for him to be seen in a week.  
 
            Claimant was next seen on January 30 by Ms. Frakes, still 
 
            complaining of numbness in the left leg and inability to 
 
            climb stairs.  He was able to use his hands better.  Ms. 
 
            Frakes, apparently delegated authority by Dr. Washburn, 
 
            continued claimant off duty.
 
            
 
                 Claimant was next seen by Dr. Washburn on February 7, 
 
            following which a CT scan was ordered.  Dr. Wilmarth 
 
            reported on February 10 that claimant had degenerative disc 
 
            with phantom disc signs at L4-5 and L5-S1 with considerable 
 
            sclerosis in the adjacent end plates at L4-5.  His 
 
            impression was of degenerative discs at L4-5 and L5-S1 with 
 
            a moderate central herniation at L4-5.  Thereafter, Dr. 
 
            Washburn noted his belief that claimant had "a fairly 
 
            significant back problem."  Surgical repair was considered 
 
            and claimant was referred to Adrian J. Wolbrink, M.D., for 
 
            consultation.
 
            
 
                 On February 24, Dr. Washburn reported that Dr. Wolbrink 
 
            felt there was no acute need for surgery.  Claimant was 
 
            deemed ready for physical capacities evaluation and work 
 
            hardening.  He was at that time released to "continue on 
 
            present duty restrictions."  Since claimant was off work, 
 
            the meaning of this release is unclear.
 
            
 
                 Dr. Wolbrink also made chart notes on February 24, 
 
            1989.  Claimant gave history of problems with the back and 
 
            right leg (Dr. Wolbrink pointed out that other medical 
 
            records mention the left leg, but that claimant insisted his 
 
            problem had always been with the right leg) which had begun 
 
            developing in the previous October and had become 
 
            progressively worse.  Claimant also gave history of having 
 
            back problems some 15 years ago, as had been the history 
 
            given Dr. Washburn (claimant also testified that about 15 
 
            years before he had been off work for six months due to a 
 
            back problem).  Dr. Wolbrink's impression was of advanced 
 
            degenerative disease with recent nerve root irritation.  
 
            However, there was a poor prognosis for surgery due to the 
 
            marked degenerative changes.  Claimant was to follow Dr. 
 
            Washburn's exercise program.
 
            
 
                 On March 3, 1989, Dr. Washburn noted that claimant was 
 
            not a candidate for work hardening because he had been 
 
            unable to come off zero base line in one week of effort; 
 

 
            
 
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            every single thing that claimant did was claimed to 
 
            aggravate leg pain.
 
            
 
                 On March 16, 1989, Dr. Washburn reported that 
 
            claimant's nerve conduction studies were improved and it was 
 
            "really just borderline for diagnosis of carpal tunnel, at 
 
            the present time."  Claimant stated his back condition was 
 
            unchanged.
 
            
 
                 No further reports from Dr. Washburn appear of record, 
 
            although claimant testified that after discontinuing 
 
            treatment in March, Dr. Washburn saw him again for 
 
            evaluation in July, 1989.  All treatment ended at that 
 
            point, and claimant believed that his back had completely 
 
            recovered and he was able to return to work.  However, 
 
            apparently due to company rules or the requirements of a 
 
            collective bargaining agreement, claimant was unable to 
 
            return to work without an additional medical evaluation at 
 
            the University of Iowa.
 
            
 
                 Dr. Washburn noted a reluctance to opine as to whether 
 
            any causal nexus existed between claimant's work and his 
 
            back symptomatology.  In particular, he used the follow 
 
            (ambivalent) language:
 
            
 
                 Of course, Mr. Young did say and I reiterated to 
 
                 him that he felt that this was aggravated by a job 
 
                 that he did at work.  Therefore, my history is 
 
                 that the underlying arthritic problem was probably 
 
                 job related.
 
            
 
                 On March 14, 1989, Dr. Wolbrink wrote that claimant had 
 
            severe degenerative arthritis of the spine, but that "there 
 
            also has been a significant aggravation of his problem by 
 
            the lifting which is required of him at his work."
 
            
 
                 Claimant was also seen for evaluation by Robert L. 
 
            Borgman, M.D.  Dr. Borgman wrote on March 16, 1989 that 
 
            claimant had degenerative disease of the lumbosacral spine 
 
            and that his problem was "work aggravated."  His job of 
 
            lifting and turning continuously during the day was a type 
 
            of motion that "would almost certainly aggravate his 
 
            degenerative problem."
 
            
 
                 Claimant was also seen for evaluation by Peter D. 
 
            Wirtz, M.D.  Dr. Wirtz wrote on August 24, 1989 that 
 
            claimant's back pain had resolved and his hand had become 
 
            asymptomatic.  Examination of the hand showed full flexion 
 
            and extension, normal sensation and negative Tinel's sign.  
 
            X-rays of the lumbar spine showed narrowing, calcification 
 
            and spurring at L4-5 and narrowing at L5-S1.  Dr. Wirtz's 
 
            diagnosis was of lumbar disc degeneration.  Claimant no 
 
            longer had symptoms or evidence of neurological conditions 
 
            in the lower back and leg.  He had no symptoms in the hand 
 
            and was capable of functioning within his physiological 
 
            dexterity and strength.  Claimant had no permanent 
 
            impairment based on his carpal tunnel syndrome symptoms.  
 
            Dr. Wirtz further wrote:
 
            
 
                 The back condition is a natural degenerate 
 

 
            
 
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                 condition and was aggravated on a temporary basis 
 
                 in the fall of 1988.  This aggravation has 
 
                 resolved.  The lumbar disc degeneration would have 
 
                 occurred regardless of work activities.
 
            
 
                 Lumbar disc degeneration as present two levels 
 
                 without neurologic would relate to a 5% impairment 
 
                 of the body as a whole.
 
            
 
                 On December 6, 1989, Dr. Wolbrink wrote that claimant 
 
            had significant degenerative disease in the back and that 
 
            there "may have been a temporary aggrevation [sic] from his 
 
            work situation."  It was "possible" that an episode of 
 
            pushing around pork bellies would aggravate the underlying 
 
            condition, but the doctor would anticipate that this would 
 
            improve within a couple of weeks and that the remainder of 
 
            disability and permanent impairment would be due to the 
 
            underlying degenerative disc disease.
 
            
 
                 Claimant was finally seen and evaluated at the 
 
            University of Iowa Hospitals and Clinics, Spine Diagnostic 
 
            and Treatment Center, on March 8, 1990.  Claimant underwent 
 
            a functional capacity evaluation and underwent AP and 
 
            lateral x-rays of the lumbosacral spine which showed 
 
            degenerative changes throughout the lumbosacral spine, 
 
            particularly at L4-5 and L5-S1.  There were no obvious 
 
            destructive bony or soft tissue lesions present and the 
 
            examination was essentially unremarkable.
 
            
 
                 Based on the functional capacity evaluation, claimant 
 
            was seen as capable of lifting on a one-time basis 100 
 
            pounds, bent knee lift 125 pounds, squat lift 110 pounds, 
 
            and power lift 120 pounds (that is to say, not more than 
 
            four times per hour).  If lifting was to be repetitive more 
 
            than four times per hour, each of those weights would have 
 
            to be cut in half.  Claimant could reach and lift above his 
 
            shoulder level up to 50 pounds and could rotate his head, 
 
            operate foot controls and drive with no restrictions.  It 
 
            was estimated that claimant might be able to sit at any one 
 
            time up to a period of two continuous hours, stand up to 
 
            three continuous hours and walk up to three continuous 
 
            hours.
 
            
 
                 Thereafter, claimant returned to work on the basis of 
 
            this evaluation.  He works at his same job, performs all 
 
            required duties of the job and has not sought medical care 
 
            since returning to work.  Due to a general increase, he is 
 
            earning $.25 per hour more than was the case in January, 
 
            1989.
 
            
 
                 Unpaid medical bills include the February, 1989 CT 
 
            scan, totalling $480.00 and a total of $719.52 owed to Drs. 
 
            Washburn and Wolbrink.  Claimant also alleges in excess of 
 
            100 miles of unreimbursed mileage for medical treatment and 
 
            evaluation.
 
            
 
                 Claimant also filed a grievance.  He received a total 
 
            of $1,600.00 as a back pay award which he concedes was 
 
            intended as reimbursement for earnings (claimant also 
 
            received job insurance benefits totalling $4,706.00 from 
 

 
            
 
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            July 29, 1989 through January 20, 1990).
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on  January 11, 
 
            1989 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            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 
 

 
            
 
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                 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.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 11, 
 
            1989 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). 
 
            
 
                 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).
 
            
 
                 The medical opinion in this case is unanimously to the 
 
            effect that claimant had preexisting degenerative disease 
 
            which was aggravated by the demands of his employment.  
 
            However, it appears that there actually may have been two 
 
            injuries, one cumulative in nature and one traumatic while 
 
            climbing the stairs with a return to work slip.
 
            
 
                 There can be little question but that the cumulative 
 
            injury arose out of and in the course of employment, since 
 
            this aggravation of the preexisting condition obviously 
 
            occurred while claimant was performing his job duties at the 
 
            place or places authorized by defendant.  A closer question 
 
            is presented with respect to the contribution of the 
 
            traumatic incident when claimant was climbing stairs on 
 
            January 20, 1989.  However, it is the view of the 
 

 
            
 
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            undersigned that this incident arose out of and in the 
 
            course of employment regardless of whether it be deemed a 
 
            second and independent traumatic injury, or merely a sequela 
 
            of the original cumulative injury.
 
            
 
                 An injury to an employee is not normally deemed to have 
 
            occurred in the course of employment while the employee is 
 
            traveling to and from the regular work place.  Otto v. 
 
            Indep. School Dist., 237 Iowa 991, 23 N.W.2d 915 (1946).  
 
            However, the employee is covered while on a special errand 
 
            on behalf of the employer.  Pohler v. T. W. Snow Constr. 
 
            Co., 239 Iowa 1018, 33 N.W.2d 416 (1948).  It has been held 
 
            that a claimant on vacation when he went to the job site to 
 
            pick up his check was in the course of employment when 
 
            injured at that time.  Gomez v. E. C. Ernst Midwest, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            118 (1979).  Surely an individual at the employment location 
 
            to furnish the employer with a return to work slip is acting 
 
            in the course of employment if an individual present only 
 
            for his own benefit to pick up a check is so engaged.  The 
 
            stair climbing incident might also be considered a sequela 
 
            of the original injury.  Where a work injury has been 
 
            established, the employer is liable for all consequences 
 
            that naturally and proximately flow from the original 
 
            accident.  Oldham v. Scofield & Welch, 222 Iowa 764, 266 
 
            N.W. 480 (1936).  In either case, the result is the same.  
 
            For convenience, the stair climbing incident will be deemed 
 
            a sequela of the original injury, and the additional 
 
            temporary disability resulting therefrom attributable to the 
 
            original cumulative injury.  See, West v. Quaker Oats, 2-1 
 
            Iowa Industrial Commissioner Decisions 475 (1984), wherein a 
 
            bathtub incident failed to break the chain of causation 
 
            where claimant was in the tub because of the original 
 
            injury.
 
            
 
                 It is claimant's burden to show that he has sustained 
 
            permanent disability.  Although he clearly has a permanent 
 
            impairment, he must establish that the impairment was caused 
 
            by the work injury as opposed to his preexisting condition.  
 
            As has been seen, Dr. Wirtz opined that claimant's back 
 
            condition was aggravated "on a temporary basis" and had 
 
            resolved.  Dr. Wolbrink noted that claimant had significant 
 
            degenerative disease in the back and that there may have 
 
            been a temporary aggravation, but that this would improve 
 
            and that the remainder of disability and permanent 
 
            impairment would be due to the underlying disease.  Claimant 
 
            himself believes that his back has completely recovered.  
 
            There is no countervailing medical evidence to establish 
 
            permanent disability causally related to the work injury.  
 
            It is therefore held that claimant has established a work 
 
            injury that caused temporary total disability, but that he 
 
            has failed to establish entitlement to permanent disability 
 
            benefits.
 
            
 
                 Claimant takes the position that the fact of an injury 
 
            alone has an impact upon claimant's potential future 
 
            employability even absent permanent impairment.  Even 
 
            postulating that this result might obtain under some facts, 
 
            this writer does not find that the period of temporary 
 
            disability resulting here against the backdrop of a 
 

 
            
 
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            degenerative condition is significant enough in the absence 
 
            of impairment to create industrial disability.
 
            
 
                 Pursuant to Iowa Code sections 85.32 and 85.33, in 
 
            cases of incapacity extending beyond fourteen days, 
 
            compensation begins on the date of injury and is payable 
 
            until the employee has returned to work or is medically 
 
            capable of returning to substantially similar employment, 
 
            whichever first occurs.  In cases of cumulative injury, the 
 
            injury date occurs when claimant is no longer able to work 
 
            due to pain or physical inability.  McKeever Custom Cabinets 
 
            v. Smith, 379 N.W.2d 368 (Iowa 1985).  Claimant was taken 
 
            off work on medical advice effective January 11, 1989.  This 
 
            is the injury date.  Although claimant was thereafter 
 
            released to return to work with limitations in the same 
 
            month, the subsequent stair climbing incident prevented that 
 
            return.  Although treatment was discontinued in March, 1989, 
 
            and claimant himself felt completely recovered at least in 
 
            July, 1989, no medical release for a return to work had been 
 
            issued.  Claimant's view that he was able to return to work 
 
            is not a professional opinion.  This office has commonly 
 
            disregarded the opinions of various injured workers who felt 
 
            unable to return to work despite medical release as 
 
            unreliable; there appears to be no reason to take a 
 
            different position in the case of a motivated employee who 
 
            believed himself able to return to work, but had not been 
 
            formally released by his physician, even where the physician 
 
            discontinued treatment (it would be speculative to 
 
            necessarily equate discontinuance of treatment with the end 
 
            of temporary total disability, since an individual may in a 
 
            given case be expected to continue recovering in the absence 
 
            of active treatment).  Especially should this be true where 
 
            claimant was not allowed to return to work without 
 
            undergoing additional medical evaluation.  Claimant was 
 
            eventually returned to work following an evaluation at the 
 
            University of Iowa Hospitals and Clinics on March 8, 1990.  
 
            It is held that this evaluation established claimant's 
 
            ability to return to substantially similar employment and 
 
            ended his period of disability.  Therefore, temporary total 
 
            disability benefits shall be awarded from January 11, 1989 
 
            through March 8, 1990, a total of 60 weeks, 2 days.
 
            
 
                 The parties stipulated to a rate of weekly compensation 
 
            of $278.15, based upon gross weekly earnings of $457.00, a 
 
            marital status of single and entitlement to two exemptions.  
 
            A review of Guide to Iowa Workers' Compensation Claim 
 
            Handling published by this office and effective July 1, 1988 
 
            shows that this rate is correct.
 
            
 
                 Based upon the stipulation of the parties that the 
 
            provider of medical services and supplies would testify that 
 
            fees and treatment were reasonable and incurred for 
 
            reasonable and necessary treatment of the work injury 
 
            without the introduction of contrary evidence, it is held 
 
            that those expenses were causally connected to the work 
 
            injury and compensable under Iowa Code section 85.27.  Lack 
 
            of authorization is not a valid defense since defendants 
 
            denied liability.  Barnhart v. MAQ, Inc., I Iowa Industrial 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Commissioner Report 16 (1981).  Therefore, defendants shall 
 
            pay the medical expenses totalling $719.52 and $480.00 set 
 
            forth in exhibits 15 and 16.  Claimant's testimony as to 
 
            mileage is of insufficient specificity to support an award.
 
            
 
                 The remaining issue is whether claimant's back pay 
 
            award of $1,600.00 should be a credit to defendants as it 
 
            has undisputably been paid.  Defendants specified that they 
 
            do not claim credit under Iowa Code section 85.38 (by its 
 
            provisions, that section would not be applicable anyway), 
 
            but because disallowance would create a double recovery.
 
            
 
                 Claimant cites the case of Hiserote Homes, Inc. v. 
 
            Riedemann, 277 N.W.2d 911 (Iowa 1979) as supportive of the 
 
            view that a back pay award should not be offset against 
 
            temporary total disability benefits.  However, that case is 
 
            of no avail, being even contrary to that position.  Hiserote 
 
            Homes was a case in which payment of back pay pursuant to a 
 
            National Labor Relations Board order was not set off by the 
 
            Iowa Department of Job Service in an unemployment insurance 
 
            case because it did not constitute "wages" within the 
 
            meaning of a statute specific to Job Service.  The court 
 
            reversed, finding that back pay awards by the NLRB were 
 
            intended to be compensatory and that it was essentially 
 
            redundant to unemployment compensation because each took the 
 
            place of wages not earned due to that claimant's 
 
            termination.  A contrary rule was held not rational.  
 
            However, it was further held that recoupment was not 
 
            available to the unemployment trust fund through creation of 
 
            an overpayment solely due to a statute specific to the issue 
 
            of job payment benefits and as earlier interpreted in Galvin 
 
            v. Iowa Beef Processors, Inc., 261 N.W.2d 701 (Iowa 1978).
 
            
 
                 Hiserote Homes further ruled that the account of the 
 
            employer in that case would not be charged with benefits 
 
            erroneously paid to claimant, thus leaving the unemployment 
 
            trust fund without a remedy.  While this result may have 
 
            been mandated by specific s disability benefits at the stipulated rate of two hundred 
 
            seventy-eight and 15/100 dollars ($278.15) per week from 
 
            January 11, 1989 through March 8, 1990, a total of sixty 
 
            point two eight six (60.286) weeks.
 
            
 
                 Defendants shall be entitled to credit for sick pay/ 
 
            disability income totalling seven hundred sixty-eight and 
 
            00/100 dollars ($768.00) and salary, including a back pay 
 
            award, totalling two thousand two hundred forty and 00/100 
 
            dollars ($2,240.00).
 
            
 
                 Defendants shall pay medical benefits totalling seven 
 
            hundred nineteen and 52/100 dollars ($719.52) to North Iowa 
 
            Medical Center and four hundred eighty and 00/100 dollars 
 
            ($480.00) to St. Joseph Mercy Hospital.
 
            
 
                 As all weekly benefits have accrued, they shall be paid 
 
            in a lump sum with interest pursuant to Iowa Code section 
 
            85.30.  Interest does not accrue on medical benefits.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            1913 Ingersoll Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           1101, 1104, 1106, 1402.30
 
                           1703, 1801
 
                           Filed August 15, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD E. YOUNG,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 905177
 
            ARMOUR FOOD COMPANY,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FRED S. JAMES & CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1101, 1104, 1106, 1402.30
 
            Claimant sustained a cumulative injury establishing a 
 
            temporary aggravation of a preexisting back condition.  Upon 
 
            being returned to work with restrictions, claimant suffered 
 
            a further incident while climbing steps at the place of 
 
            employment to furnish defendant with the return to work 
 
            slip, causing further temporary disability.  The second 
 
            incident was held to be a sequela of the original injury, 
 
            but it was further noted that it would be held to have 
 
            arisen out of and in the course of employment even if 
 
            considered a second, traumatic injury.
 
            
 
            1801
 
            When claimant's physician discontinued active treatment, he 
 
            did not formally release claimant to return to work, even 
 
            though claimant personally believed he had completely 
 
            recovered.  He was not allowed to return to work by the 
 
            employer for many months, until he had undergone further 
 
            evaluation at a back clinic.  When that evaluation resulted 
 
            in a release, it was held that this ended claimant's period 
 
            of temporary total disability.  It was noted that many 
 
            decisions have disregarded the nonprofessional opinion of 
 
            various claimant who believed themselves unable to return to 
 
            work in the face of medical release, and that no different 
 
            result should obtain where a nonprofessional claimant 
 
            believed himself recovered prior to actually being released.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1703
 
            Defendants were allowed credit for a back pay award 
 
            resulting from a grievance procedure which related to the 
 
            same time period in which claimant was temporarily disabled 
 
            due to the work injury because disallowance of the credit 
 
            would result in an inequitable double recovery.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL DORR,                 :
 
                                          :      File No. 905182
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      D E C I S I O N
 
                                          :
 
            DIAMOND TRANSPORTATION, INC., :       F I X I N G
 
                                          :
 
                 Employer,                :      A T T O R N E Y
 
                                          :
 
            and                           :          F E E S
 
                                          :
 
            INTERNATIONAL INSURANCE,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding to fix attorney fees for Peter M. 
 
            Soble, the former attorney for Michael Dorr.  The case was 
 
            heard at Davenport, Iowa, on March 25, 1992.  The evidence 
 
            consists of exhibits 1, 2, 3, 4, B and C.  The record also 
 
            consists of testimony from Peter Soble and Michael Dorr.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 On or about March 28, 1989, Michael Dorr contacted 
 
            Peter Soble in order to obtain legal guidance in connection 
 
            with the claim against Dorr's employer under the Iowa 
 
            workers' compensation laws.  At that time, Dorr was off work 
 
            and receiving weekly benefits and payment of his medical 
 
            expenses.  Dorr entered into a contingent fee agreement with 
 
            Soble (Ex. 2) which provided for attorney fees in an amount 
 
            equal to 33 1/3 percent of the net amount recovered and all 
 
            costs and expenses.  The fee agreement also provides that 
 
            the attorney shall communicate all offers to the client and 
 
            that if the attorney recommends an offer be accepted, and 
 
            the client fails to accept the offer, the attorney shall be 
 
            entitled to a fee based upon the offer.  The contingent fee 
 
            also provides that if the client should terminate the 
 
            agreement prior to trial, an offer or settlement the fee 
 
            shall be calculated at the rate of $150 per hour.  The fee 
 
            agreement is a contingent fee agreement which provides that 
 
            if the case is lost the client has no obligation to pay fees 
 
            to the attorney.  On April 11, 1989, former Deputy 
 
            Industrial Commissioner Deborah A. Dubik entered an order 
 
            approving a lien for Attorney Soble in an amount not to 
 
            exceed 33 1/3 percent of all benefits which become payable 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to the claimant as a result of Soble's efforts.
 
            
 
                 Over the months following establishment of the 
 
            attorney-client relationship, Soble opened a file and 
 
            through the efforts of himself and his office staff filed a 
 
            petition for benefits with this agency, collected and 
 
            assembled medical records and reports and otherwise gathered 
 
            information and processed the case in preparation for an 
 
            eventual hearing or settlement.  On at least one occasion, 
 
            Dorr contacted Soble's office regarding benefits which had 
 
            not been received in a timely manner.  Soble's office 
 
            contacted the parties responsible for paying the benefits 
 
            and Dorr received those benefits.  It cannot be determined 
 
            whether or not those benefits would have been paid if Soble 
 
            had taken no action.
 
            
 
                 When Dorr initially contacted Soble, the adjusters 
 
            handling the case apparently considered Dorr to be in a 
 
            healing period status.  Thereafter, weekly benefits 
 
            continued to be paid and eventually the authorized physician 
 
            provided a rating of permanent impairment.  Soble arranged 
 
            an independent medical evaluation which provided a rating of 
 
            25 percent in comparison to the 15 percent rating provided 
 
            by the employer's physician.  The adjusters handling the 
 
            case for the employer then paid the claimant permanent 
 
            partial disability benefits representing a 20 percent 
 
            permanent partial disability without entering into any type 
 
            of formal settlement documents or settlement agreement.
 
            
 
                 Based upon agency expertise and experience, it is found 
 
            that in those cases where liability has been at least 
 
            tacitly acknowledged and weekly benefits paid it is quite 
 
            common for permanent partial disability compensation to be 
 
            paid voluntarily in an amount equal to the impairment rating 
 
            provided by the authorized physician without any action 
 
            being taken by counsel for the claimant.  It is quite 
 
            commonly done even if the claimant is unrepresented.  It is 
 
            found that in this case it is probable that the claimant 
 
            would have been paid benefits for a 15 percent permanent 
 
            partial disability even if he were unrepresented.  It is 
 
            further found that the additional 5 percent or 25 weeks of 
 
            benefits which was voluntarily paid was attributable to the 
 
            efforts arranged by Soble in obtaining the independent 
 
            medical examination.
 
            
 
                 In this case, the amount of communication between Soble 
 
            and Dorr was quite limited, so limited in fact that the 
 
            attorney-client relationship deteriorated resulting in Dorr 
 
            obtaining other counsel.  Soble had been in contact with the 
 
            adjusters for the case and had obtained a settlement offer 
 
            which would have provided Dorr, under a special case type of 
 
            settlement, with a total amount which would have been 
 
            equivalent to a 30 percent permanent partial disability and 
 
            $2,500 for future medical expenses.  The settlement would 
 
            have provided what is commonly referred to as a closed file 
 
            and Dorr would not have had any entitlement to future 
 
            medical or review-reopening.  It cannot be absolutely 
 
            determined from the record but it appears as though the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            settlement offer was obtained shortly prior to the time Dorr 
 
            terminated Soble's services and that the offer was not 
 
            communicated by Soble to Dorr prior to the time that Soble 
 
            received notice that his services were terminated.  The 30 
 
            percent previously referred to is actually an additional 10 
 
            percent over and above the 20 percent which was being 
 
            voluntarily paid.
 
            
 
                 At the hearing it was acknowledged that there was no 
 
            dispute with regard to the entitlement of Soble to recover 
 
            expenses in the amount of $753.33.  Soble was holding weekly 
 
            benefits payable to the claimant as security for payment of 
 
            his fees.  At the undersigned's direction, those three 
 
            checks in the amount of $434.76 each, representing six weeks 
 
            of benefits, were negotiated by claimant and Soble and 
 
            delivered to claimant's new counsel for holding in trust.  
 
            The undisputed out-of-pocket expenses were directed to be 
 
            paid immediately by claimant's new counsel to Soble from 
 
            those funds being held in trust with the remainder to be 
 
            held pending this decision.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Section 86.39 of the Code of Iowa makes all fees for 
 
            services rendered in a workers' compensation proceeding 
 
            subject to approval of this agency.  Factors to be 
 
            considered have been defined in Kirkpatrick v. Patterson, 
 
            172 N.W.2d 259, 261 (Iowa 1969) and disciplinary rule 2-106, 
 
            Iowa Code of Professional Responsibility For Lawyers.  It 
 
            is generally considered that where a claimant who is being 
 
            voluntarily paid benefits consult an attorney that the 
 
            attorney is entitled to charge a fee based upon the time 
 
            spent advising the client regarding the propriety of what is 
 
            being paid but may not charge a contingent fee based upon 
 
            amounts which were voluntarily being paid.  When an attorney 
 
            seeks fees the burden of proof rests on the attorney to 
 
            show, by a preponderance of the evidence, what amounts were 
 
            paid as a result of the attorney's action and would not have 
 
            otherwise been paid voluntarily except for the services 
 
            provided by the attorney.
 
            
 
                 It is recognized that contingent fee contracts make 
 
            legal services available to persons who would otherwise be 
 
            unable to pay an attorney by the hour and such contracts are 
 
            enforceable.  Wunschel Law Firm, P.C. v. Clabaugh, 291 
 
            N.W.2d 331, 333 (Iowa 1980).  Any such contract must be 
 
            clear, concise and understood by both parties.  Carmichael 
 
            v. The Iowa State Highway Commission, 219 N.W.2d 658, 665 
 
            (Iowa 1974).  The contract which is contrary to public 
 
            policy will not be enforced.  Rowen v. LeMars Mutual 
 
            Insurance Company, 282 N.W.2d 639, 650 (Iowa 1979).
 
            
 
                 In the final analysis, Soble is entitled to recover a 
 
            reasonable fee for the services which he performed with such 
 
            fee to be determined, as closely as may be accomplished, in 
 
            accordance with the written fee agreement.  There was no 
 
            dispute with regard to the reimbursement of $753.33 for 
 
            expenses.  It has further been found by the undersigned that 
 
            Soble is entitled to a fee equal to one-third of 25 weeks of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            benefits representing the additional 5 percent permanent 
 
            partial disability which was paid voluntarily as a result of 
 
            the rating obtained through the independent medical 
 
            examination.  Twenty-five weeks at the rate of $17.38 per 
 
            week computes to $5,434.50.  One-third of that amount is 
 
            $1,811.50.  Soble is clearly entitled to recover that 
 
            additional one-third based upon the additional 25 weeks of 
 
            benefits which were paid through his services.
 
            
 
                 The more difficult question is the one dealing with the 
 
            offer of a special case settlement which Soble had obtained.  
 
            As shown by exhibit 1, Soble has expended approximately 80 
 
            hours of time dealing with this case.  It is certainly not 
 
            reasonable for him to not be compensated in some manner for 
 
            his time and efforts, as well as the efforts of his office 
 
            staff, simply because the offer which was obtained was for a 
 
            special case settlement.  Such a settlement is generally 
 
            subject to approval only when the employer's liability is 
 
            subject to a bonafide dispute.  It is noted that in the 
 
            answer in the agency file the employer admitted that the 
 
            claimant was injured in the manner alleged in the petition.  
 
            It appears as though the only real dispute was the extent of 
 
            permanent disability.  If that be the fact, as it appears 
 
            from the file, a special case settlement under Iowa Code 
 
            section 85.35 could not be properly approved by this agency.  
 
            Settlements are valid only if approved by the industrial 
 
            commissioner under the provisions of section 86.13 and 85.35 
 
            of the Iowa Code.  From the agency file and other 
 
            information presented in this case, there appears to be a 
 
            very real possibility that the settlement negotiated by 
 
            Soble might not have been approved.
 
            
 
                 A special case settlement requires the claimant to 
 
            waive valuable future rights.  It is quite difficult to 
 
            place a value on the right to review-reopen and the right to 
 
            future medical care which are waived by a special case 
 
            settlement.  Nevertheless, it certainly remains possible 
 
            that in the future this file may perhaps be settled by a 
 
            special case settlement which provides no more than the 
 
            amount negotiated by Soble.  The case could also possibly go 
 
            to hearing and receive a recovery which is no more than the 
 
            20 percent permanent partial disability which has 
 
            voluntarily been paid in this case.  The value of such an 
 
            outcome may, however, not necessarily be any less than the 
 
            value of the special case settlement negotiate by Soble 
 
            depending upon the value placed upon the future benefits 
 
            which would have been waived under the special case 
 
            settlement.  In the event that Dorr should require back 
 
            surgery, the additional 50 weeks of benefits and $2,500 
 
            negotiated by Soble would probably amount to less than the 
 
            actual medical expenses and additional weekly benefits Dorr 
 
            would be entitled to receive even if current counsel were to 
 
            obtain nothing further in the way of a settlement.  It 
 
            cannot, of course, be determined at this time whether or not 
 
            Dorr will require surgery in the future.
 
            
 
                 A client in a workers' compensation case is not liable 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            for a contingency attorney fee on an offer for a settlement 
 
            under section 85.35 which the client rejects contrary to the 
 
            attorney's recommendation if there is a reasonable question 
 
            regarding whether the settlement could properly be approved 
 
            by the industrial commissioner.  The fee should be based on 
 
            the value of the settlement not necessarily its dollar 
 
            amount if future rights are waived.
 
            
 
                 It is therefore concluded that since the offer arranged 
 
            by Soble was contingent upon approval by the industrial 
 
            commissioner and, also, that the value of the offer was not 
 
            necessarily any greater than the value of future benefit 
 
            rights which the claimant currently has but would have 
 
            waived through accepting the offer, that Soble is not 
 
            entitled to recover any additional fee based upon that 
 
            offer.  Soble's fee in this matter is therefore fixed at the 
 
            sum of $1,811.50 in addition to the expenses in the amount 
 
            of $753.33 which have been previously reimbursed.
 
            
 
                 According to the undersigned computations, Dorr's 
 
            current counsel received the sum of $1,304.28 to be held in 
 
            trust.  Of that amount, $753.33 has been previously expended 
 
            to reimburse Soble for expenses.  The remaining balance of 
 
            $550.95 should now be dispersed to Soble in payment of fees.  
 
            Once that amount has been expended, Soble will still be owed 
 
            the sum of $1,260.55 in fees.  Soble should be granted a 
 
            lien against any further amounts paid to or on behalf of the 
 
            claimant in this case to secure payment of those fees.  
 
            Since those fees are due based upon amounts previously paid, 
 
            any additional amounts payable to the claimant shall first 
 
            be paid to Soble prior to actually distributing those 
 
            amounts to Dorr or Dorr's current counsel.
 
            
 
                 It is noted that in the agency file Dorr apparently 
 
            sent a letter seeking to terminate the lien which had 
 
            previously been approved by this agency.  The purpose of a 
 
            lien is to provide security for payment of fees.  Once a 
 
            lien has been approved it cannot be revoked at the mere 
 
            request of the claimant.  If such were the case, the lien 
 
            would be meaningless as any claimant could simply revoke the 
 
            lien, immediately prior to payment of an award or settlement 
 
            and thereby cause the attorney to no longer be able to look 
 
            to the proceeds of the recovery as a source of payment of 
 
            fees.  Once a lien is approved by this agency, that lien 
 
            remains in full force and effect until it is in some way 
 
            vacated or modified by an order from this agency.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that the entire amount of fees 
 
            and expenses entitled to be recovered by Peter M. Soble in 
 
            association with the services provided by him in this case 
 
            are seven hundred fifty-three and 33/100  dollars ($753.33) 
 
            in expenses and one thousand eight hundred eleven and 50/100 
 
            dollars ($1,811.50) in fees.  The total amount is therefore 
 
            two thousand five hundred sixty-four and 83/100 dollars 
 
            ($2,564.83).  Soble has previously been reimbursed for the 
 
            expenses and the remaining amount due and payable to Soble 
 
            for fees is the sum of one thousand eight hundred eleven and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            50/100 dollars ($1,811.50).
 
            
 
                 IT IS FURTHER ORDERED that the entire remaining sum 
 
            held in trust of claimant's current attorney, Harry W. Dahl, 
 
            be paid by Attorney Dahl to Attorney Soble forthwith in the 
 
            amount of five hundred fifty and 95/100 dollars ($550.95), 
 
            more or less.
 
            
 
                 IT IS FURTHER ORDERED that the lien previously approved 
 
            in this case is modified and that Soble shall have a first 
 
            lien upon all amounts to be paid or payable to the claimant 
 
            in this case in the sum of one thousand two hundred sixty 
 
            and 55/100 dollars ($1,260.55) as security for payment of 
 
            the unpaid balance of the attorney fees awarded in this 
 
            decision.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant, Michael Dorr, pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Peter M Soble
 
            Attorney at Law
 
            505 Plaza Office Bldg
 
            Rock Island IL 61201
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                           1001.10
 
                                           Filed September 3, 1992
 
                                           Michael G. Trier
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL DORR,                 :
 
                                          :      File No. 905182
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      D E C I S I O N
 
                                          :
 
            DIAMOND TRANSPORTATION, INC., :       F I X I N G
 
                                          :
 
                 Employer,                :      A T T O R N E Y
 
                                          :
 
            and                           :          F E E S
 
                                          :
 
            INTERNATIONAL INSURANCE,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1001.10
 
            
 
                 Attorney awarded fees based upon one-third of the 
 
            additional amount of permanent partial disability which was 
 
            paid voluntarily as a result of the higher impairment rating 
 
            obtained through an independent medical evaluation arranged 
 
            by claimant's counsel.  No fees were awarded based upon an 
 
            offered special case settlement because the file reflected a 
 
            serious question regarding whether such a settlement could 
 
            be properly be approved and there was no showing that the 
 
            value of the amounts to be paid under the special case 
 
            settlement which had been offered was any greater than the 
 
            value of the claimant's already existing right to 
 
            review-reopening and future medical expenses.  The case was 
 
            one which involved a concern that future back surgery might 
 
            be required.  The offer was never communicated to the client 
 
            as the client terminated the attorney's services at the same 
 
            time the offer was received by the attorney.
 
            
 
                 A client in a workers' compensation case is not liable 
 
            for a contingency attorney fee on an offer for a settlement 
 
            under section 85.35 which the client rejects, contrary to 
 
            the attorney's recommendation, if there is a reasonable 
 
            question regarding whether the settlement could properly be 
 
            approved by the industrial commissioner.  Further, the fee 
 
            should be based on the value of the settlement, rather than 
 
            its full dollar amount if future rights currently held are 
 
            to be waived.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.20; 1402.30; 2203
 
                           2206
 
                           Filed September 13, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WINFRED E. COOP,    :
 
                      :
 
                 Claimant, :         File No. 905191
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            JOHN DEERE DES MOINES WORKS,  :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1402.20; 1402.30; 2203; 2206
 
            The claimant alleged that he had developed occupational 
 
            asthma, but asserted the claim as one of injury due to 
 
            exposure during a specified period of time.  The record 
 
            inarguably showed that he had been previously diagnosed with 
 
            asthma and that it had previously been considered to be 
 
            occupational asthma.  The claimant went off work, but was 
 
            disabled by the condition of hypertension, rather than 
 
            asthma.  The claim was therefore denied.
 
            It was discussed that, if the claimant did in fact have 
 
            occupational asthma as a result of prolonged exposures, his 
 
            condition was most likely an occupational disease 
 
            compensable under chapter 85A of The Code.  Since 
 
            occupational disease was not on the hearing assignment order 
 
            and was not urged or argued by either party, no ruling was 
 
            made regarding whether or not the claimant's asthma was an 
 
            occupational disease since he was still employed by the 
 
            employer and the record failed to show any concise or clear 
 
            significant reduction in his earnings.  Since he was not 
 
            disabled by the condition, any claim under chapter 85A would 
 
            have been premature.
 
            
 
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            WINFRED E. COOP,      
 
                        
 
                 Claimant,                         File No. 905191
 
                        
 
            vs.                                      R E M A N D
 
                        
 
            JOHN DEERE DES MOINES WORKS,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            This matter is on remand from the district court.  The 
 
            district court remanded this case "to address whether the 
 
            oil mist and other workplace inhalants were a cause of 
 
            Coop's disability;" "to determine whether the oil mist 
 
            aggravated Coop's health problems during the period in 
 
            question;" and "to state the reasons" for the conclusion.
 
            
 
                                     ISSUE
 
            
 
            The issue to be resolved is whether claimant has proved that 
 
            workplace exposure to oil mist or other inhalants from 
 
            February 1987 to May 1987 was a proximate cause, a 
 
            substantial or aggravating factor of his underlying asthma.
 
            findings of fact
 
            
 
                 Winfred E. Coop is a 50-year-old employee of the John 
 
            Deere Des Moines Works.  The medical records in evidence 
 
            show that there is no question regarding his diagnosis of 
 
            having asthma.  Coop himself listed asthma on health 
 
            questionnaires as far back as 1982 (exhibit 81, pages 19 and 
 
            20).  At that time, he was performing the job of a paint 
 
            stripper (exhibit 88).  The plant medical records contain 
 
            notes which indicate that on December 5, 1982, the results 
 
            of pulmonary function tests were discussed with Coop, but 
 
            the records do not reveal what those test results showed 
 
            (exhibit 81, page 9).  The fact that they were discussed 
 
            indicates that they showed some abnormality.
 
            
 
                 Pulmonary function tests were repeated in December 1984 
 
            and showed moderate to severe progression of his chronic 
 
            obstructive pulmonary disease to have occurred since the 
 
            previous tests were conducted two years earlier.  It was 
 
            recommended that he be placed in a different job (exhibit 
 
            81, pages 12, 25 and 26).  Coop was taken off work until he 
 
            could be retested or seen by the company physician (exhibit 
 
            81, page 26).  The physician, Santiago Garcia, M.D., 
 
            characterized the condition as being non-occupational.
 
            
 
                 It is noted that claimant had been prescribed Theodur, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            a common asthma medication, by Manmohanlal Kwatra, M.D., in 
 
            February of 1984 and on April 27, 1984.  The doctor's notes 
 
            of November 30, 1984 indicate that claimant was given an 
 
            alupent inhaler, another common asthma medication (exhibit 
 
            81, page 40).  The following note, the date of which cannot 
 
            be determined other than for it being in 1984, indicates 
 
            that the assessment was made that Coop had bronchial asthma, 
 
            which was allergic in nature, and that he was taken off work 
 
            one week (exhibit 81, page 41).
 
            
 
                 Dr. Kwatra referred Coop to allergist A. Y. Al-Shash, 
 
            M.D.  Dr. Al-Shash confirmed the diagnosis of asthma and in 
 
            a report stated, "He is working at John Deere in an area 
 
            where he is exposed to quite a few chemicals and he said 
 
            that he will feel worse in the work environment.  Recently, 
 
            he was moved to another area where he is feeling better."  
 
            Allergy testing for the most common inhalants and foods 
 
            showed Coop to be reactive to house dust, dogs, cats, 
 
            feathers, ragweed and grasses.  Coop was advised to attempt 
 
            to avoid fumes and obtain a cleaner area at his workplace 
 
            (exhibit 81, pages 100-103).
 
            
 
            When released to return to work effective January 4, 1985, 
 
            it was recommended that Coop wear a cotton face mask 
 
            (exhibit 81, page 12).  On February 28, 1985, it was noted 
 
            that he should not be placed in jobs which required him to 
 
            wear a respirator in view of his chronic obstructive 
 
            pulmonary disease (exhibit 81, page 13).  Pulmonary function 
 
            tests performed December 5, 1985 showed Coop's asthma to be 
 
            under good control with medications.
 
            
 
            Claimant was laid off from July 13, 1986 through February 9, 
 
            1987.  Claimant testified that he was feeling very good, 
 
            having no shortness of breath and had occasional respiratory 
 
            problems when exposed to heat or extreme cold in the time 
 
            period from August 18, 1986 until the return to work on 
 
            February 9, 1987.  (Transcript, page 36)  He stated he had 
 
            no work restrictions when he returned to work.  Claimant 
 
            testified that he was exposed to oil mist while operating 
 
            gear cutting machines in Department 32.  He stated that his 
 
            breathing problems were worse in November 1987 than before 
 
            he started the gear cutting job.  (Tr., p. 62)  Gary Higbee, 
 
            safety director for the employer, testified that tests were 
 
            performed to determine the level of oil mist in Department 
 
            32.  He admitted that the tests showed that workers are 
 
            exposed to oil mist but described the exposure level as 
 
            "miniscule."  (Tr., p. 247)
 
            
 
            Coop visited the employer's nurse four times between 
 
            February 25, 1987 and May 22, 1987.  Three of the visits 
 
            related to blood pressure and the fourth was for a 
 
            laceration of a finger.  The notes of May 22, 1987 indicates 
 
            that he "Denies pain, SOB" (shortness of breath).  (Ex. 81, 
 
            p. 14)
 
            
 
                 Coop worked without any particular incidents until May 
 
            22, 1987 when he gave complaints of weakness in his arms and 
 
            legs and was sent to see his own physician.  Dr. Kwatra 
 
            noted that his symptoms were probably secondary to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            hypertension (exhibit 81, page 43).  Coop had medical 
 
            problems relating to hypertension beginning as early as 
 
            1980.  The May 26, 1987 notes made by Dr. Kwatra do not 
 
            indicate any particular asthma symptoms.  The notes 
 
            specifically note that Coop denied having any chest 
 
            discomfort (exhibit 81, page 43).  The subsequent treatment 
 
            notes initially deal with hypertension symptoms.  Claimant 
 
            left work on May 22, 1987 and was released to return to work 
 
            on November 30, 1987.  (Tr., p. 61)  It is not until June of 
 
            1987 that the notes indicate any asthma symptoms.  By July 
 
            or August, while he was still off work, his asthma symptoms 
 
            increased and it was recommended that he not go out in heat 
 
            and humidity (exhibit 81, page 45).  Coop remained off work 
 
            until December 2, 1987 because of hypertension (exhibit 86).
 
            
 
                 The diagnosis on July 22, 1987 (Ex. 81, p. 138) was 
 
            virtually identical to diagnosis on August 20, 1986 (Ex. 81, 
 
            p. 129) except the characterization of obesity had changed 
 
            from "mild to moderate" to "mild."
 
            
 
                 Coop was seen at the University of Iowa Hospitals and 
 
            Clinics on August 18, 1986 at which time it was suggested by 
 
            James A. Merchant, M.D., that his asthma was quite possibly 
 
            occupational asthma (exhibit 81, pages 129 and 130).  The 
 
            notes from a subsequent visit held July 20, 1987 indicate 
 
            that Coop had been off work since May 22, 1987 for 
 
            hypertension (exhibit 81, pages 138 and 139).  In a report 
 
            dated August 26, 1988, University of Iowa Hospitals 
 
            physician Laurence Fuortes, M.D., reported that Coop has 
 
            adult onset asthma with a strong work-related component.  He 
 
            at that time declined to express an opinion regarding the 
 
            cause of the asthma (exhibit 81, page 158).  On April 13, 
 
            1990, Dr. Fuortes wrote:
 
            
 
            Mr. Coop's clinical history and presentation is most 
 
            consistent with a recent onset of occupational asthma 
 
            syndrome.  It is my assessment that Mr. Coop's respiratory 
 
            health problems had been quite specific to the work place 
 
            and work place irritant exposures.  Mr. Coop's asthma 
 
            symptoms date back to 1984, manifest by nonproductive cough, 
 
            occasional wheezing, and chest tightness associated with 
 
            exercise, cold air, and work place exposures.  His 
 
            respiratory symptoms appear reliably to decrease with 
 
            absence from the work place and decreased exposure to 
 
            respiratory irritants.  Mr. Coop has had fewer complaints 
 
            either when out of the work place or when working without 
 
            exposure to respiratory irritants.  It also appears that 
 
            work place exposures to a variety of respiratory irritants 
 
            have at the very least, continued to irritate an underlying 
 
            condition and may well, in fact, been etiological in the 
 
            development of adult onset asthma.  The cutting  oils with 
 
            which Mr. Coop has worked have very probably been a 
 
            significant factor in his respiratory symptomatology, both 
 
            because of his history of temporal association and because 
 
            of our knowledge of epidemiologic association of cutting 
 
            environmental exposure and respiratory disease.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (Ex. 81, p. 170)
 
            Coop was evaluated by Mark Thoman, M.D.  On June 9, 1990 Dr. 
 
            Thoman wrote:
 
            From 1972 to 1987, he worked in several job categories in 
 
            the plant and was exposed to various chemicals, solvents, 
 
            petroleum products, and dust.  From February 2, 1987 to May 
 
            27, 1987 he ran gear cutting machines which involved the use 
 
            of an oil mist sprayed on the gears being cut.  This process 
 
            resulted in Mr. Coop exposure to smoke and oil fumes in his 
 
            work environment.
 
               ....
 
               While working on the gear cutting machines from February 
 
            2, 1987 to May 25, 1987 his condition became aggravated due 
 
            to inhalation of oil mist and smoke from the gear cutting 
 
            oil....
 
               Winfred Coop was examined on August 18, 1986, at the 
 
            University of Iowa Hospitals and Clinics. ... No other 
 
            restrictions or recommendations were made at that time.  
 
            However, by July 1987, (post exposure to the gear cutting 
 
            oil) Mr. Coop was advised to restrict his work environment 
 
            to a "non-irritant exposure area of ..[the] plant....
 
               It is my opinion to a reasonable degree of medical 
 
            certainty that the oil used in the gear cutting process was 
 
            a significant factor contributing to the adult onset asthma 
 
            now suffered by Winfred Coop.
 
            
 
            (Ex. 81, pp. 220-221)
 
            Ronald E. Gots, M.D., reviewed Coop's medical records.  He 
 
            testified that the records reflect that Coop had asthma in 
 
            1981.  (Defendant's Ex. C, p. 29)  He testified that the 
 
            actual medical records did not corroborate that Coop was 
 
            having respiratory difficulties between February and May of 
 
            1987.  (Def. Ex. C, pp. 39-40)  He recited that the records 
 
            indicate that Coop had complaints of respiratory problems 
 
            during 1987 for the six month period he was out of work.  
 
            (Def. Ex. C, p. 45)  Dr. Gots testified:
 
            
 
            Q.  I think you should continue the analysis with regard to 
 
            the oil mist exposure in February and May of the '87 period.
 
            
 
            A.  Well, not only is oil mist not a likely cause of asthma 
 
            based upon what we know about the toxicology of oil mist, 
 
            but as we look at the next level of questions, that is, the 
 
            probability that it could have caused this man's asthma, the 
 
            evidence simply is not there.  During the time that he 
 
            worked in that environment, he didn't have respiratory 
 
            problems, and the evaluations that he had during that period 
 
            of time made it quite clear that he was not wheezing and his 
 
            problems were not asthmatic in nature.  His health problems 
 
            during that period were other kinds of health problems.
 
               And I think he was feeling bad during that time, but I 
 
            don't think he was feeling bad because of the asthma.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury between February 
 
            9, 1987 and May 22, 1987 which arose out of and in the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            course of his employment.  McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 A determination that an injury "arises out of" the 
 
            employment contemplates a causal connection between the 
 
            conditions under which the work was performed and the 
 
            resulting injury; i.e., the injury followed as a natural 
 
            incident of the work.  Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128; Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 
 
            800 (1941).
 
            
 
                 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).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 A claimant need not prove that a work place incident is 
 
            the sole proximate cause of his disability.  Langford v. 
 
            Kellar Excavating & Grading, Inc., 191 N.W.2d 667, 670 (Iowa 
 
            1971).  The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            Claimant must prove that workplace exposure to oil mist or 
 
            other irritants from February 9, 1987 to May 27, 1987 was a 
 
            proximate cause, a substantial factor or aggravating factor 
 
            of his underlying asthma.
 
            
 
            The opinion of Dr. Thoman is confusing and can be given 
 
            little weight.  Dr. Thoman expresses an opinion that 
 
            exposure to the oil used in the gear cutting process 
 
            (February 2, 1987 to May 25, 1987) was a significant factor 
 
            to the adult onset asthma of claimant.  However, Dr. Thoman 
 
            acknowledges that claimant reacts to irritants outside the 
 
            work environment.  It also appears that claimant was 
 
            diagnosed as having bronchial asthma as early as December 
 
            1984 when claimant was 44 years of age.  (Ex. 81, p. 100)  
 
            It is unclear how Dr. Thoman reached his opinion in light of 
 
            apparent prior diagnosis and nonwork irritants.  
 
            
 
            Furthermore, Dr. Thoman's opinion is inconsistent with the 
 
            fact that claimant never complained of respiratory problems 
 
            from February 2, 1987 to May 22, 1987 and did not complain 
 
            of respiratory problems until a month and a half after 
 
            claimant left work in May 1987.
 
            
 
            Dr. Fuortes' opinion offers little to resolve the issue.  
 
            While he gives the opinion that the cutting oil exposure is 
 
            a probable significant factor in claimant's respiratory 
 
            symptomatology, he clearly did not relate the exposure to 
 
            the time period in question.  It is difficult to tell 
 
            whether the workplace exposure Dr. Fuortes relies on for his 
 
            opinion occurred in the time period in question or was a 
 
            result of exposure before, after and during the period in 
 
            question.  Like Dr. Thoman, Dr. Fuortes' opinion is 
 
            inconsistent with the fact that claimant had no complaints 
 
            of respiratory problems during the time period in question.
 
            The opinions of Drs. Thoman and Fuortes are directly 
 
            contradicted by the opinion of Dr. Gots.  Dr. Gots' opinion 
 
            is consistent with other facts of this case.  He takes into 
 
            account claimant's failure to make complaints of respiratory 
 
            problems.  It was his opinion that exposure to oil mist did 
 
            not cause claimant's asthma.
 
            
 
            Claimant had no work restrictions and had no symptoms of 
 
            shortness of breath, dizziness or chest tightening when he 
 
            returned to work on February 9, 1987.  When he left work and 
 
            sought medical care on May 27, 1987 he was treated for high 
 
            blood pressure.  The recurrence of asthma was noted somewhat 
 
            later and appears to be attributed to heat and humidity.  
 
            Claimant's reason for seeking medical treatment in May 1987 
 
            was for high blood pressure.  The level of exposure to oil 
 
            mists as indicated by Mr. Higbee's testimony appears to be 
 
            low.
 
            
 
            Claimant has not proved that workplace exposure to oil mists 
 
            or other inhalants from February 9, 1987 to May 22, 1987 was 
 
            a proximate cause of his underlying asthma.  Claimant has 
 
            not proved that the exposure in this time period was a 
 
            substantial factor in causing his underlying asthma.  
 
            Claimant has not proved that the exposure in this time 
 
            period was an aggravation of his underlying asthma.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Claimant has not proved entitlement to benefits under Iowa 
 
            Code chapter 85.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                        ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That claimant shall take nothing from these proceedings.
 
            
 
            That claimant shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Gregory T. Racette
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.30
 
                                               Filed August 20, 1993
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            WINFRED E. COOP,      
 
                        
 
                 Claimant,                          File No. 905191
 
                        
 
            vs.                                      R E M A N D
 
                        
 
            JOHN DEERE DES MOINES WORKS,            D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            1402.30
 
            The claimant alleged that he had developed asthma, but 
 
            asserted the claim as one of injury due to exposure during a 
 
            specified period of time.  The record showed that he had 
 
            been previously diagnosed with asthma.  The claimant went 
 
            off work, but was disabled by the condition of hypertension, 
 
            rather than asthma.  Claimant failed to prove that workplace 
 
            exposure to oil mist in the time period alleged was a 
 
            proximate cause of his underlying asthma.  Claimant failed 
 
            to prove the exposure was a substantial or aggravating 
 
            factor of his underlying asthma.  The claim was therefore 
 
            denied.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES YOUNG,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 905194
 
            HAGER CITY EXPRESS,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THRESHERMEN'S MUTUAL          :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, James Young, against his employer, Hager City 
 
            Express, and its alleged insurance carrier, Threshermen's 
 
            Mutual Insurance Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of an injury of July 
 
            27, 1988.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner at Council 
 
            Bluffs, Iowa on September 21, 1990.  A copy of a first 
 
            report of injury for the state of Wisconsin was received on 
 
            January 11, 1990.
 
            
 
                 The record consists of the testimony of Jeff Osky, 
 
            Marlys Witte, Barbara Bauer, William Schroeder and Mel 
 
            Wefler as well as of Threshermen's exhibits B, C, and D and 
 
            Hager City's exhibits 1 through 11.  All objections to 
 
            exhibits are overruled.
 
            
 
                 Both parties filed briefs in this matter.  Hager City 
 
            Express filed its brief October 23, 1990.  Threshermen's 
 
            brief was filed on October 22, 1990.  Under the post-hearing 
 
            order, briefs were to be filed by October 19, 1990.  Hence, 
 
            briefs of both parties were untimely filed.  For that 
 
            reason, Threshermen's objection to Hager City's post-hearing 
 
            brief and argument is overruled as failure to consider Hager 
 
            City's brief for lack of timely filing would in equity 
 
            require that Threshermen's brief also not be considered.
 
            
 
                 Threshermen's also objected to consideration of a 
 
            supplemental brief and argument filed by Hager City Express.  
 
            Threshermen's correctly points out that such supplemental 
 
            brief if considered would permit Hager City to respond to 
 
            Threshermen's brief while Threshermen's has not been 
 
            permitted that opportunity relative to Hager City's brief.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            For that reason, the supplemental brief and argument of 
 
            Hager City will not be considered in this matter.  Hager 
 
            City's proposed remedy that Threshermen's also be permitted 
 
            to file a supplemental brief and argument is not acceptable 
 
            as it would result in further delay in the issuance of this 
 
            decision.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing order and the oral 
 
            stipulations of the parties at hearing, the parties have 
 
            agreed that claimant did receive an injury which arose out 
 
            of and in the course of claimant's employment on July 27, 
 
            1988 and that such injury has resulted in a period of 
 
            entitlement to temporary total disability or healing period 
 
            benefits.
 
            
 
                 The sole issue to be decided at this time is the issue 
 
            of insurance coverage, specifically, the extent of insurance 
 
            coverage provided under the insurance policy Threshermen's 
 
            Mutual Insurance Company issued to the employer Hager City 
 
            Express; that is, whether the policy provides coverage and 
 
            benefit payments under the law of all states in which Hager 
 
            City Express trucks operate or whether benefits under the 
 
            policy are limited to those benefits payable under Wisconsin 
 
            workers' compensation law.  All other issues have been 
 
            bifurcated for subsequent hearing.
 
            
 
                                findings of facts
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 In 1983, Hager City Leasing Company approached the 
 
            Hiawatha Insurance Agency through its agent, Jeff Osky, to 
 
            purchase a policy of workers' compensation insurance 
 
            coverage.  Hiawatha National Bank of Hager City, Wisconsin 
 
            owns the Hiawatha Insurance Agency.  Osky submitted Hager 
 
            City Leasing Company's application to the Wisconsin 
 
            insurance risk pool.  Osky was familiar with the business of 
 
            Hager City Leasing Company, which business consisted of 
 
            leasing Hager City Leasing drivers to other companies for 
 
            over-the-road hauling, both in and out of Wisconsin.  The 
 
            Hager City Leasing application was Osky's first experience 
 
            with attempting to secure workers' compensation coverage for 
 
            an employer needing coverage for out-of-state drivers.  It 
 
            is unclear to the undersigned whether Osky had had prior 
 
            experience working with the Wisconsin insurance risk pool.  
 
            The application stated under Certification of Operations, 
 
            Classification Phraseology, "Truckers short and long haul In 
 
            and out of state."  Under the Statement of the Producer of 
 
            Record, Osky executed his signature certifying that he had 
 
            read the Wisconsin rejected risk plan, had explained the 
 
            provisions of the plan to the applicant and had included in 
 
            the application all required information the applicant had 
 
            given him.
 
            
 
                 The risk pool assigned the application to Lumbermen's 
 
            Insurance Company and Lumbermen's issued Hager City Leasing 
 
            a policy of workers' compensation insurance effective March 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            20, 1984.  The declarations page of the Lumbermen's policy 
 
            issued for the period of March 20, 1984 to March 20, 1985 
 
            states, at item 3, that coverage A of this policy applies to 
 
            the workers' compensation law and occupational disease law 
 
            of each of the following states--Wisconsin.  Osky understood 
 
            that that declaration statement indicated that Wisconsin 
 
            workers' compensation law applied to the coverage provided.  
 
            Osky stated he understood that the item 4 statement of 
 
            "Truckers short and long haul In and out of state" created 
 
            additional coverage outside of Wisconsin.
 
            
 
                 In 1987, Lumbermen's withdrew from the assigned risk 
 
            insurance carriers group.  All risks that had been assigned 
 
            to Lumbermen's were then assigned to Threshermen's Mutual 
 
            Insurance Company.  In 1988, Hager City Leasing Company 
 
            underwent a material change of ownership and operation such 
 
            that a new workers' compensation insurance policy needed to 
 
            be secured.  Marlys Witte, with the Hiawatha Insurance 
 
            Agency, completed the application form necessary to switch 
 
            coverage from Hager City Leasing to Hager City Express.  
 
            Witte had written other Wisconsin risk insurance pool 
 
            applications, but the Hager City Express application was her 
 
            first experience with a workers' compensation insurance 
 
            application involving the Wisconsin risk insurance pool.  
 
            The application with Hager City Express was also her first 
 
            experience with Wisconsin's limited states endorsement.  
 
            Witte presently does not understand the Wisconsin limited 
 
            other states endorsement.  She testified that she had gotten 
 
            different answers from both the risk pool and from 
 
            Threshermen's when she inquired regarding such, apparently 
 
            after this controversy arose.  In the 1988 application, 
 
            Witte also used the phraseology "Truckers short and long 
 
            haul In and out of state" to indicate the coverage 
 
            classification intended.  Witte checked "No" relative to the 
 
            phrase "Wisconsin limited other states" because Witte 
 
            believed that, by doing so, no limitations would be placed 
 
            on where travel could be conducted in Hager City Express's 
 
            business.  Item 3A of the declaration page for the policy of 
 
            insurance in effect from March 20, 1987 to March 20, 1988 
 
            states that part I of the policy applies to the workers' 
 
            compensation law of the state of Wisconsin.  Item 3C states 
 
            as follows:  "Other states insurance:  part three of the 
 
            policy applies to the states, if any, listed here:"  No 
 
            other states are listed.  Items 3A and 3C of the workers' 
 
            compensation policy issued from March 20, 1988 to March 20, 
 
            1989 are identical to those in the policy from March 20, 
 
            1987 to March 20, 1988.  Witte testified regarding her 
 
            understanding of the declaration page that she felt 
 
            Wisconsin workers' compensation law applied and that she had 
 
            no questions as to whether she had secured out-of-state 
 
            coverage for Hager City Express.  Witte had a specific 
 
            discussion with Threshermen's regarding the code number and 
 
            the rate for the language "Truckers short and long haul In 
 
            and out of state" which was utilized by Witte to secure the 
 
            correct coverage.
 
            
 
                 Barbara Bauer, former co-owner of Hager City Leasing, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            discussed the need for all states coverage with Jeff Osky 
 
            when applying for coverage for Hager City Leasing.  Ms. 
 
            Bauer understood that she had secured all states workers' 
 
            compensation coverage for Hager City Leasing.
 
            
 
                 William Schroeder, general manager and sole owner of 
 
            Hager City Express Company, advised Ms. Witte that he had 
 
            wanted to continue the Hager City Leasing policy for Hager 
 
            City Express and to make sure that he had all states 
 
            coverage for Hager City Express. Schroeder did not 
 
            personally inspect the declaration page with either the 
 
            Threshermen's or the Lumbermen's policies.  He stated that 
 
            he had read the top part and the phraseology "Truckers short 
 
            and long haul In and out of state" and had assumed that his 
 
            company's needs were met without reading the entire 
 
            declarations page.
 
            
 
                 Pursuant to the testimony of Mel Wefler, vice-president 
 
            of workers' compensation underwriting with Threshermen's 
 
            Mutual Insurance Company and a member of the workers' 
 
            compensation pool committee for the Wisconsin risk insurance 
 
            pool, it is not possible to get out of state coverage under 
 
            the Wisconsin insurance risk pool since the pool applies 
 
            only to Wisconsin law.  The pool is set up for Wisconsin 
 
            employers and employees and is not designed for 
 
            non-Wisconsin jurisdiction.  At the time of the application, 
 
            apparently with Threshermen's, Threshermen's only authority 
 
            was to write benefits for Wisconsin workers' compensation 
 
            insurance.  Threshermen's did not write limited other states 
 
            coverage for Hager City Express because the application did 
 
            not seek such.  An application for insurance under Wisconsin 
 
            risk insurance pool is taken at face value as the insurer 
 
            has no ability to decide whether to take the insured as a 
 
            risk.
 
            
 
                                conclusions of law
 
            
 
                 As stated above, the sole issue before us is that of 
 
            whether the policy of insurance in effect between the 
 
            employer, Hager City Express, and the insurer, Threshermen's 
 
            Mutual Insurance Company, on July 27, 1988 provided coverage 
 
            for claims for Iowa benefits and, if the policy does not 
 
            provide such coverage, whether the policy should be reformed 
 
            to provide coverage for Iowa and all states benefits.  
 
            Additionally, the sub-issue has been raised of whether, 
 
            under conflicts of laws principles, Wisconsin or Iowa law 
 
            applies in determining the issue of insurance coverage.  We 
 
            shall first consider that issue.
 
            
 
                 We note that Hager City Express did not address this 
 
            issue in their brief as instructed and therefore gave us no 
 
            guidance as to its appropriate resolution.  Threshermen's 
 
            has set out the appropriate law in its brief, namely:  The 
 
            law to be applied is the law of the state of the "most 
 
            significant relationship with respect to the issue in 
 
            question."  Restatement (Second) Conflict of Laws, section 
 
            188(3) (1980).  Couch, Insurance, section 16.2 (Rev.Ed. 
 
            1984) states that the following factors are to be used to 
 
            determine the state with the "most significant relationship" 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            in cases involving contracts of insurance:
 
            
 
                 1.  The place the contract was entered into.
 
                 2.  The place where the contract was to be performed.
 
                 3.  The place where the contract was issued and
 
                     delivered.
 
                 4.  The place where the insured has its operations.
 
            
 
                 Clearly, when those factors are considered, the state 
 
            with the most significant relationship to this matter is 
 
            Wisconsin.  The contract was entered into in Wisconsin; the 
 
            contract was to be performed in Wisconsin; the contract was 
 
            issued and delivered in Wisconsin; and, the insured's home 
 
            location for its business operations was Wisconsin.  We 
 
            note, on the other hand, that while the law of Wisconsin is 
 
            clearly applicable, application of the Wisconsin law does 
 
            not impact on the outcome in this matter as the applicable 
 
            law is essentially identical whether it be cited as 
 
            Wisconsin law or Iowa law.
 
            
 
                 The factual issue of whether the policy provided for 
 
            payment of workers' compensation benefits under Wisconsin 
 
            law only or under other states' law has been previously set 
 
            forth in the findings of fact.  Plainly, the policy as 
 
            issued applied only to the workers' compensation law of the 
 
            state of Wisconsin.  Application of the workers' 
 
            compensation law of a state would necessarily include 
 
            application of the benefit table for such a state.  We note, 
 
            however, that this relates only to the obligation of the 
 
            insurer to the insured.  Iowa clearly has jurisdiction of 
 
            this matter as the injury occurred within its borders.  
 
            Schmidt v. Pittsburgh Plate Glass Co., 243 Iowa 1307, 55 
 
            N.W.2d 227 (1952).  Iowa law then is applicable to the case 
 
            in chief.  The employer's liability is as established under 
 
            the Iowa workers' compensation law.  Section 85.18 prohibits 
 
            contractual agreements that relieve an employer in whole or 
 
            in part from liability created under our law.  In this 
 
            matter, where the employee is not even a party to the 
 
            contract, any other result would be especially egregious.
 
            
 
                 We are left then only with the question of whether the 
 
            contract of insurance coverage should be reformed to permit 
 
            payment of benefits under the Iowa rate schedule.
 
            
 
                 Reformation is allowed where the party seeking 
 
            reformation establishes a mutual mistake by the parties with 
 
            regard to the items sought to be reformed, or a mistake on 
 
            the part of one party and a fraud or an inequitable conduct 
 
            on the part of the other.  State Bank of LaCrosse v. Elsen, 
 
            128 Wis. 2d 508, 383 N.W.2d 916 (Wis. App. 1986); Schuknecht 
 
            v. Wisconsin Mutual Ins. Co., 203 N.W.2d 605, 608 (Iowa 
 
            1973).
 
            
 
                 The purpose of reformation is to make the policy 
 
                 express the true contract which the parties 
 
                 intended and desired to put in writing.
 
            
 
                 Reformation is a proper remedy where the parties 
 
                 have reached a definite and explicit agreement, 
 
                 understood in the same sense by both, but where by 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 their mutual or common mistake, the written 
 
                 contract fails to express their agreement.
 
            
 
            17 Couch on Insurance 2d Section 66.2 at 249-50 (1967), 
 
            accord, Jeske v. General Accident, Fire & Life Assurance 
 
            Corp., 1 Wis. 2d 70, 83 N.W.2d 167 (1957); Kufer v. Carson, 
 
            230 N.W.2d 500, 503 (Iowa 1975).
 
            
 
                 Clear and convincing evidence must demonstrate that 
 
            both parties intended to make a different instrument and 
 
            that both had agreed upon facts which were different from 
 
            those set forth in the instrument.  Jeske, supra; Kufer, 
 
            supra.  The record clearly does not establish a unilateral 
 
            mistake of one party induced by inequitable conduct of the 
 
            other party.  Therefore, reformation is possible only if a 
 
            mistake was shared by both parties.  The record clearly 
 
            fails to establish such.  Mr. Schroeder, as agent for Hager 
 
            City Express, clearly understood the type of workers' 
 
            compensation insurance coverage which he sought for his 
 
            company.  Likewise, Threshermen's Mutual Insurance Company 
 
            was well aware that it could issue coverage only under the 
 
            Wisconsin workers' compensation law when it was assigned a 
 
            risk under the Wisconsin risk insurance pool.  Schroeder's 
 
            desire for a policy of workers' compensation coverage 
 
            including coverage for all states in which his business 
 
            operated was not communicated to the insurer.  Likewise, the 
 
            insurer's inability to provide coverage, other than coverage 
 
            under the Wisconsin workers' compensation law, unless 
 
            limited other states coverage was expressly asked for was 
 
            not communicated to Mr. Schroeder on behalf of his company.  
 
            Hence, while each party had a unilateral mistake as to the 
 
            intent of the other party, there was no mutual mistake as to 
 
            the insurance contract desired.  The intent of each party 
 
            was not properly communicated to the other party such that 
 
            the parties never reached a definite and explicit agreement, 
 
            understood in the same sense by both, which the written 
 
            contract failed to express.
 
            
 
                 It is therefore concluded that reformation on the basis 
 
            of mutual mistake is inappropriate.
 
            
 
                 Hager City Express further argues that the contract of 
 
            insurance should be reformed on an implied warranty theory.  
 
            For relief to be granted under an implied warranty theory, 
 
            three conditions must exist:
 
            
 
                 1.  The insurer must have had reason to know the
 
                     particular purpose for which the policy was
 
                     purchased.
 
            
 
                 2.  The insured must have relied upon the company's
 
                     skill or judgment in furnishing the coverage.
 
            
 
                 3.  The resulting implied warranty has been breached.
 
            
 
            Farm Bureau Mutual Ins. Co. v. Sandbulte, 302 N.W.2d 104, 
 
            110 (Iowa 1981).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Under the facts presented, Threshermen's had no reason 
 
            to know the particular purpose for which Hager City Express 
 
            purchased workers' compensation coverage.  The application 
 
            as written did not seek limited other states coverage.  
 
            Similarly, Hager City Express did not rely on Threshermen's 
 
            skill or judgment in furnishing the coverage requested.  
 
            Hager City Express relied on its insurance agents to acquire 
 
            appropriate coverage.  Hence, Threshermen's cannot be held 
 
            to have breached an implied warranty to provide a particular 
 
            type of workers' compensation coverage.
 
            
 
                 For the above stated reasons, no basis exists for 
 
            reformation of the contract for workers' compensation 
 
            insurance between Hager City Express and Threshermen's 
 
            Mutual Insurance Company.  As relates to the contractual 
 
            liability between the insurance carrier and the insured 
 
            employer, the policy of insurance as written is applicable 
 
            in this matter including the application of the Wisconsin 
 
            workers' compensation law and the Wisconsin benefit table.  
 
            As Iowa has jurisdiction of this matter, this contractual 
 
            result does not relieve the employer of any obligation it 
 
            has to the claimant under Iowa law as a result of its 
 
            liability for the injury which arose out of and in the 
 
            course of claimant's employment on July 27, 1988 and which 
 
            is the subject matter of this claim.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 This matter is returned for docket for appropriate 
 
            scheduling of prehearing conference and hearing relative to 
 
            the remaining bifurcated issues which issues shall be 
 
            decided under the appropriate Iowa law.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            P.O. Box 1588
 
            Council Bluffs, Iowa  51502
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Mr. John M. McHale
 
            Attorney at Law
 
            233 Pearl Street
 
            P.O. Box 1078
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Michael M. Sellers
 
            Mr. Steven C. Kaiser
 
            Attorneys at Law
 
            1200 Hub Tower
 
            699 Walnut Street
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Bradley C. Lundeen
 
            Attorney at Law
 
            110 Second Street
 
            P.O. Box 802
 
            Hudson, Wisconsin  54016
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2100
 
                           Filed November 29, 1990
 
                           HELENJEAN WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES YOUNG,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 905194
 
            HAGER CITY EXPRESS,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THRESHERMEN'S MUTUAL          :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2100
 
            Reformation of contract of workers' compensation insurance 
 
            not permitted where record did not show mutual mistake of 
 
            fact as to type of insurance desired and secured.  
 
            Reformation on implied warranty grounds also rejected.  
 
            Insurance secured through statutory risk pool.  Agent should 
 
            have known liability limits under the pool.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DICKIE R. GORDY,              :
 
                                          :
 
                 Claimant,                :         File No. 905342
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA,  :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Dickie R. Gordy filed a petition in 
 
            arbitration seeking benefits under the Iowa Workers' 
 
            Compensation Act as the result of a work injury arising out 
 
            of and in the course of his employment with self-insured 
 
            defendant employer Aluminum Company of America (Alcoa) on 
 
            September 14, 1988.
 
            
 
                 This cause was scheduled to come on for hearing on June 
 
            13, 1991.  Respective counsel agreed that the cause should 
 
            be submitted on a stipulated record which was filed on 
 
            September 3, 1991.  That stipulation constitutes the record.
 
            
 
                                      issue
 
            
 
                 The only issue presented for resolution is claimant's 
 
            proper rate of compensation under Iowa Code section 85.36.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 The proposed stipulation of fact submitted by the 
 
            parties is adopted and accepted verbatim except for 
 
            paragraph 11, wherein it is stipulated that rate should be 
 
            calculated pursuant to Iowa Code section 85.36(6).  That is 
 
            an issue of law, not fact.  The parties are not competent to 
 
            determine what law the agency should apply to stipulated 
 
            facts, even though they have done so correctly in this 
 
            instance.
 
            
 
                    
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 The crucial sub-issues to be determined are:  (1) what 
 
            are claimant's gross earnings; and, (2) under which of the 
 
            ten subsections of Iowa Code section 85.36 should rate be 
 
            calculated?
 
            
 
                 As stipulated, Dickie R. Gordy is a full-time employee 
 
            paid on an hourly basis.  During some of the weeks preceding 
 
            the work injury, he engaged during work hours in business 
 
            relating to his position as a vice-president of his union 
 
            local.  He is permitted by Alcoa to devote time to union 
 
            business, but is paid by the union for time lost from the 
 
            normal eight-hour shift at his regular wage.  Although the 
 
            normal work week is 40 hours, claimant frequently exercised 
 
            his option to voluntarily work overtime up to 56 hours.
 
            
 
                 Iowa Code section 85.36(6) provides:
 
            
 
                 In the case of an employee who is paid on a daily, 
 
                 or hourly basis, or by the output of the employee, 
 
                 the weekly earnings shall be computed by dividing 
 
                 by thirteen the earnings, not including overtime 
 
                 or premium pay, of said employee earned in the 
 
                 employ of the employer in the last completed 
 
                 period of thirteen consecutive calendar weeks 
 
                 immediately preceding the injury.
 
            
 
                 As claimant is paid on an hourly basis, he should be 
 
            compensated under section 85.36(6).  King v. City of Mt. 
 
            Pleasant, file number 840912 (App. Decn., August 31, 1989).  
 
            Non-representative weeks should be excluded.  Hardy v. 
 
            Abell-Howe Co., file number 814126 (App. Decn., December 21, 
 
            1990).
 
            
 
                 Claimant's spendable weekly earnings are the amount 
 
            remaining after payroll taxes are deducted from gross weekly 
 
            earnings.  See Iowa Code section 85.61(11).  Gross earnings 
 
            are defined in 85.61(12) as follows:
 
            
 
                 "Gross earnings" means recurring payments by 
 
                 employer to the employee for employment, before 
 
                 any authorized or lawfully required deduction or 
 
                 withholding of funds by the employer, excluding 
 
                 irregular bonuses, retroactive pay, overtime, 
 
                 penalty pay, reimbursement of expenses, expense 
 
                 allowances, and the employer's contribution for 
 
                 welfare benefits.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Payment of wages by claimant's union, a separate entity, are 
 
            not "by employer to the employee for employment" within the 
 
            meaning of Iowa Code section 85.61(12) or "earned in the 
 
            employ of the employer" within the meaning of section 
 
            85.36(6).  Where rate is not calculated under section 
 
            85.36(10), which deals with part-time employees, Titus v. 
 
            Super Valu Stores, Inc., file numbers 825816 and 828115 
 
            (Arb. Decn., April 21, 1989), income earned from other 
 
            employers is not to be considered in calculating rate.  King 
 
            v. City of Mt. Pleasant, supra.  Therefore, only wages paid 
 
            by Alcoa as shown on exhibit A attached to the proposed 
 
            stipulation of fact should be utilized in calculating rate.
 
            
 
                 Claimant was paid $14.496 per hour plus $.11 per hour 
 
            as cost of living.  In addition, Alcoa contributed $0.536 
 
            per hour to a retirement plan.  Although $.11 of claimant's 
 
            hourly wage may have been designated "cost of living," this 
 
            is a distinction without a difference.  That $.11 is clearly 
 
            a recurring payment by employer to the employee for 
 
            employment.  However, the contribution to claimant's 
 
            retirement plan is a "contribution for welfare benefits," 
 
            and therefore not subject to inclusion in gross earnings 
 
            under section 85.61(12).
 
            
 
                 Exhibit A attached to the parties' proposed stipulation 
 
            of fact sets forth the hours claimant worked for Alcoa and 
 
            his union in the 27 weeks prior to the work injury.  Actual 
 
            earnings are not set forth, except as may be calculated by 
 
            multiplying the hours worked at Alcoa by $14.606 (hourly 
 
            wage plus "cost of living").
 
            
 
                 Weeks designated 3, 4, 5 and 13 are not representative 
 
            because claimant worked zero hours for Alcoa, although 
 
            working at least 40 hours for the union in each of those 
 
            weeks.  Weeks 7 and 8 should be excluded because claimant 
 
            was on vacation, clearly non-representative weeks.  The 
 
            parties have written in 44.2 hours for each such week, but 
 
            this appears to be based on claimant's vacation entitlement, 
 
            rather than a wage for services rendered during those weeks.  
 
            As such, they are not "recurring" payments for employment 
 
            within the meaning of 85.61(12).  During week 9, claimant 
 
            worked only 28 hours, also taking some vacation that week.  
 
            In Hardy v. Abell-Howe Co., supra, weeks where claimant 
 
            earned no wages due to being laid off were not counted, but 
 
            a week where claimant earned some wages before being laid 
 
            off was counted.  Under this rationale, the week ending July 
 
            17, 1988 is not unrepresentative and should be included.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Therefore, the following weeks should be used in calculating 
 
            claimant's rate:
 
            
 
                      Week           Week
 
                     Number         Ending         Hours 
 
            
 
                        1          09/11/88         55.2
 
                        2          09/04/88         48.0
 
                        6          08/07/88         54.0
 
                        9          07/17/88         28.0
 
                       10          07/10/88         56.0
 
                       11          07/03/88         38.0
 
                       12          06/26/88         54.4
 
                       14          06/12/88         48.0
 
                       15          06/05/88         48.0
 
                       16          05/29/88         40.0
 
                       17          05/22/88         32.0
 
                       18          05/15/88         35.5
 
                       19          05/08/88         52.0
 
            
 
                 Accordingly, claimant worked 589.1 hours during the 13 
 
            representative weeks immediately preceding the injury.  At 
 
            an hourly rate of $14.606, this constitutes total earnings 
 
            of $8,604.39, or an average weekly wage of $661.87.  A 
 
            review of the tables set forth in the Guide to Iowa Workers' 
 
            Compensation Claim Handling published by this office and 
 
            effective July 1, 1988, reveals that a married individual 
 
            entitled to three exemptions and so situated with respect to 
 
            earnings is entitled to a weekly rate of $403.19.
 
            
 
                 Benefits have voluntarily been paid at the rate of 
 
            $410.37.  Accordingly, claimant has been overpaid on this 
 
            claim.  Defendant seeks restitution, but the agency lacks 
 
            jurisdiction to so order.  Comingore v. Shenandoah 
 
            Artificial Ice, Power, Heat & Light Co., 208 Iowa 430, 226 
 
            N.W. 124 (1929).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant's proper rate of compensation in this case is 
 
            four hundred three and 19/100 dollars ($403.19) per week.
 
            
 
                 Each party shall be responsible for its own costs.
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Defendant shall file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 East 6th Street
 
            P.O. Box 339
 
            Davenport, Iowa  52805-0339
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Building
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1703; 1704; 2302; 2901
 
                           3001; 3003
 
                           Filed September 13, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DICKIE R. GORDY,    :
 
                      :
 
                 Claimant, :         File No. 905342
 
                      :
 
            vs.       :     A R B I T R A T I O N
 
                      :
 
            ALUMINUM COMPANY OF AMERICA,  :        D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            2901
 
            In rate case submitted on stipulated record, stipulation as 
 
            to proper law section to be applied was rejected.  Parties 
 
            are not competent to stipulate what law the agency should 
 
            apply to facts.
 
            
 
            3001; 3003
 
            Hours devoted to union business during regular work hours 
 
            were not included in gross earnings where union paid 
 
            claimant for those hours at his regular salary under 
 
            85.36(6) and 85.61(12).
 
            Portion of wage designated "cost of living" was included in 
 
            gross earnings as a recurrent payment for employment.
 
            Contribution by employer to 401K plan was a "welfare 
 
            benefit" and not included in gross earnings.
 
            Weeks in which claimant worked no hours while on vacation 
 
            were excluded as unrepresentative, but week in which 
 
            claimant both worked and vacationed was included, citing 
 
            Hardy v. Abell-Howe Co., file number 814126 (App. Decn., 
 
            December 21, 1990).
 
            
 
            1703; 1704; 2302
 
            Although rate decision created overpayment, the agency lacks 
 
            power to order restitution.  Comingore v. Shenandoah 
 
            Artificial Ice, Power, Heat & Light Co., 208 Iowa 430, 226 
 
            N.W. 124 (1929).