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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NORMAN GRITTON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 751165
 
                                          :
 
            DEPARTMENT OF TRANSPORTATION, :      C O M M U T A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding brought by Norman Gritton to 
 
            obtain a full commutation of the permanent total disability 
 
            benefits awarded to him in an arbitration decision dated 
 
            December 20, 1989.  The issue to be determined is whether it 
 
            is in his best interest to commute his remaining benefits 
 
            into a lump sum.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on August 14, 1990.  The record consists of claimant's 
 
            exhibits 1 through 5, defendants' exhibits A through D and 
 
            testimony from Norman Gritton and Gilbert Schweser.
 
            
 
                                 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.
 
            
 
                 Norman Gritton is a married man who is approximately 42 
 
            years of age.  He injured his back on November 3, 1983.  
 
            Thereafter, he underwent conservative and surgical 
 
            treatment.  His last day of work was January 17, 1986.  
 
            Thereafter, his employer refused to allow him to resume 
 
            work.  He was awarded permanent total disability benefits in 
 
            an arbitration decision dated December 20, 1989.  The weekly 
 
            rate of compensation is $192.56.  Norman has also been 
 
            awarded Social Security disability benefits.  The full 
 
            amount of his entitlement is approximately $724 per month, 
 
            but due to the offset for workers' compensation benefits, he 
 
            receives only $328 per month in Social Security disability 
 
            benefits.  Norman and his spouse own a home upon which they 
 
            owe approximately $50,000.  The remaining term of the 
 
            mortgage is approximately 27 years.  The mortgage has an 
 

 
            
 
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            interest rate which varies between 10 and 13 percent per 
 
            annum.  At the time of hearing, the rate of 11 percent per 
 
            annum was being charged.  The monthly payment at the present 
 
            time is approximately $520.
 
            
 
                 Claimant also owns two vehicles and a rental property 
 
            which provides an income of approximately $300 per month.  
 
            His wife is employed in the accounting department of Louis 
 
            Rich Company where her net earnings are approximately $800 
 
            per month.  She also has a medical insurance package which 
 
            would provide Norman with medical insurance under the family 
 
            plan, though there is some uncertainty regarding whether or 
 
            not he is considered to be a "participant" to which the 
 
            exclusion for injuries covered by workers' compensation 
 
            found in paragraph 11 of the plan would apply (exhibit 3).
 
            
 
                 E. A. Dykstra, M.D., claimant's treating orthopaedic 
 
            surgeon, has reported that it is his opinion that claimant 
 
            will not require additional surgery for his back problems 
 
            (exhibit 4).  At the time of the original arbitration 
 
            decision, it appeared as though claimant's back condition 
 
            was essentially stable.  Claimant characterized the 
 
            condition of his back as holding his own at the time of the 
 
            hearing conducted in this proceeding.
 
            
 
                 According to claimant, he desires a commutation in 
 
            order to pay off the mortgage on his home and then invest 
 
            the remaining proceeds.  Carl Schweser, Ph.D., a Professor 
 
            of Finance and Chairman of the Finance Department in the 
 
            College of Business at the University of Iowa, prepared an 
 
            assessment which compares claimant's economic condition with 
 
            claimant receiving monthly workers' compensation benefits 
 
            against a situation in which claimant would receive a full 
 
            commutation, paid off his home mortgage and invested the 
 
            remaining proceeds (exhibit 2).  It was his opinion that the 
 
            full commutation would provide an economic benefit to 
 
            claimant which had a present value in the amount of $37,279.  
 
            His opinion was based upon evidence from Cindy Goodrich, a 
 
            claims representative for the Social Security 
 
            Administration, who explained that with a full commutation, 
 
            the claimant's monthly Social Security benefit would 
 
            increase from its present amount of $328 to the amount of 
 
            $504.60 per month until August 17, 1995 at which time the 
 
            offset for the workers' compensation benefits would cease 
 
            and claimant would then receive the full Social Security 
 
            disability benefit (exhibit 5, pages 10-13).
 
            
 
                 At the time of hearing, claimant was receiving $834 per 
 
            month in workers' compensation benefits.  He was not, 
 
            however, paying any attorney fees for the workers' 
 
            compensation case.  If the full commutation is granted, it 
 
            was represented that he would pay one-third of the commuted 
 
            funds to his attorney.  Dr. Schweser, when he performed his 
 
            computations, treated the matter as though claimant were 
 
            paying an attorney fee of one-third of the recovery under 
 
            the present situation as well as if the full commutation 
 

 
            
 
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            were granted.  Claimant explained that he is unable to 
 
            economically afford to pay an attorney fee from his present 
 
            level of income.
 
            
 
                 Claimant is quite concerned about the effects of 
 
            inflation on his workers' compensation benefits since they 
 
            are not adjusted according to any change in the cost of 
 
            living.  Social Security disability benefits are adjusted 
 
            annually for changes in the cost of living.  It is apparent 
 
            that, as time passes and the cost of living increases, as is 
 
            projected to occur by Dr. Schweser, the economic 
 
            significance of the workers' compensation benefits will 
 
            gradually be dissipated.
 
            
 
                 It is found that the computations and assessments made 
 
            by Cindy Goodrich and Carl Schweser, Ph.D., are correct.  
 
            The only adjustment is that the present value of the 
 
            advantage to claimant is greater than the amount of $37,279 
 
            arrived at by Dr. Schweser due to the mortgage being a 
 
            30-year mortgage, rather than a 20-year mortgage as was 
 
            assumed when the computations were made.  The statement from 
 
            Dr. Dykstra which indicates that further surgery is not 
 
            indicated is also accepted as being correct.  That 
 
            statement, together with claimant's own testimony, 
 
            establishes that further significant treatment for his back 
 
            is not likely.  No specific finding can be made with regard 
 
            to whether or not Medicare or some private medical insurance 
 
            might pay the cost of any future medical treatment which 
 
            claimant may require for his back condition.
 
            
 
                                conclusions of law
 
            
 
                 In this case, the period during which compensation is 
 
            payable is definitely determinable under the tables adopted 
 
            by the commissioner as part of rule 343 IAC 6.3(1).  Sidles 
 
            Distrib. Co. v. Heath, 366 N.W.2d 1 (Iowa 1985).  The 
 
            underlying determination is whether the commutation is in 
 
            the best interest of the claimant.  Dameron v. Neumann 
 
            Bros., Inc., 339 N.W.2d 160 (Iowa 1983); Diamond v. Parsons 
 
            Co., 356 Iowa 915, 129 N.W.2d 608 (1964).
 
            
 
                 It should be noted that the comparison which should be 
 
            made is one in which the claimant is paying attorney fees as 
 
            the responsibility to pay fees does not vary depending upon 
 
            whether or not a commutation is obtained.
 
            
 
                 Claimant's plan to pay off the mortgage on his home 
 
            seems wise.  The discount for the full commutation is 
 
            computed at the rate of 10 percent per annum while the rate 
 
            of interest on the home loan is at or above 10 percent per 
 
            annum depending upon market interest rates at any given 
 
            point of time.  According to the information presented, 
 
            claimant will have approximately $200 per month more to 
 
            spend if the commutation is granted than he would if it were 
 
            not granted and he continued to make mortgage payments and 
 
            to pay one-third of his workers' compensation recovery as 
 
            attorney fees.
 
            
 

 
            
 
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                 When the factor of inflation is considered, the value 
 
            of the workers' compensation recovery is reduced in future 
 
            years since it is not adjusted for inflation.  The amount 
 
            paid to the claimant from Social Security will over the 
 
            years gradually become more and more significant.
 
            
 
                 Claimant has not demonstrated any propensity to 
 
            squander resources.  Paying off the home is a good plan.  
 
            Investing the remainder in conservative investments is 
 
            likewise prudent.
 
            
 
                 There is one other factor, however.  A commutation to 
 
            pay attorney fees, which is part of the reason for the 
 
            commutation in this case, is not in the claimant's best 
 
            interest if the fee is unreasonable.  Rickett v. Hawkeye 
 
            Building Supply Co., file number 739306 (App. Decn., June 
 
            28, 1988).  The proper amount of a contingency fee must be 
 
            based upon the benefit which the attorney has obtained for 
 
            the client.  The record in this case does not reflect any 
 
            written agreement between claimant and his counsel with 
 
            regard to fees.  It does not contain any showing of the 
 
            economic advantage obtained by counsel for the claimant.  
 
            For example, if the claimant had received Social Security 
 
            disability benefits without the services of his attorney in 
 
            this case, then it might be inappropriate to base a 
 
            contingency fee upon the full amount of the workers' 
 
            compensation recovery since a very substantial portion of 
 
            the value of the recovery is offset by the loss in Social 
 
            Security disability benefits.  No determination can be made 
 
            in this case with regard to the proper amount of an attorney 
 
            fee.  It is still determined, however, that the commutation 
 
            is in claimant's best interests, even if the full one-third 
 
            contingency fee were deemed to be appropriate.  The 
 
            commutation will therefore be granted.  Claimant's counsel 
 
            shall, however, hold the one-third fee in trust in 
 
            accordance with all controlling ethical standards and submit 
 
            to this agency the documentation which supports the fee 
 
            which is claimed.  Until such time as a particular fee is 
 
            approved, counsel may not withdraw the funds from the trust 
 
            account.  The documentation submitted shall include a 
 
            document signed by the claimant which expressly states his 
 
            understanding of the basis for the computation of the fee 
 
            and his agreement, or disagreement if that be the case, with 
 
            that fee.
 
            
 
                 With regard to the amount of the commutation, it is 
 
            noted that claimant is age 42.  Under rule 343 IAC 6.3, the 
 
            life expectancy is 1,711 weeks, the commuted value of which 
 
            is 500.5742 weeks.  At the established weekly rate of 
 
            compensation of $192.56, the commuted value is $96,390.57.  
 
            Counsel shall hold a sum not to exceed $32,130.19 in trust 
 
            for payment of fees.  The balance of $64,260.38 shall be 
 
            paid to claimant forthwith.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the remaining benefits 
 
            payable to Norman Gritton be computed and paid in a lump sum 
 

 
            
 
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            in the total amount of ninety-six thousand three hundred 
 
            ninety and 57/100 dollars ($96,390.57).
 
            
 
                 IT IS FURTHER ORDERED that claimant's counsel may 
 
            retain not more than thirty-two thousand one hundred thirty 
 
            and 19/100 dollars ($32,130.19) in trust as security for 
 
            payment of attorney fees and shall forthwith submit to the 
 
            undersigned documentation demonstrating the amount of a 
 
            proper fee.  The balance of sixty-four thousand two hundred 
 
            sixty and 38/100 dollars ($64,260.38) shall be immediately 
 
            paid to the claimant.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the employer pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
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            Copies To:
 
            
 
            Mr. J. Nicholas Russo
 
            Attorney at Law
 
            615 Iowa State Bank Building
 
            Iowa City, Iowa  52240
 
            
 
            Mr. Robert P. Ewald
 
            Assistant Attorney General
 
            Iowa Department of Transportation
 
            800 Lincoln Way
 
            Ames, Iowa  50010
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORMAN GRITTON,
 
         
 
              Claimant,                         File No. 751165
 
         
 
         vs.                                 A R B I T R A T I O N
 
         
 
         DEPARTMENT OF TRANSPORTATION,          D E C I S I O N
 
         
 
              Employer,
 
                                                   F I L E D
 
         and
 
                                                  DEC 29 1989
 
         STATE OF IOWA,
 
                                        IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Norman 
 
         Gritton, claimant, against Department of Transportation, 
 
         employer, and State of Iowa, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury occurring on November 3, 1983.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         July 13, 1988.  The record was considered fully submitted upon 
 
         the receipt of the deposition of Nancy Ford filed August 1, 1988.  
 
         The record in this case consists of the testimony of claimant, 
 
         Gracie Gritton, Melvin Baxter, Charlene Hill and Candice Kaelber; 
 
         and joint exhibits 1 through 30, inclusive.
 
         
 
              Pursuant to the prehearing report submitted and approved 
 
         July 13, 1988, the following issues are presented for 
 
         determination:
 
         
 
              1.  The extent of claimant's entitlement to,permanent 
 
         partial disability benefits, and, concomitantly, the 
 
         applicability of the odd-lot doctrine;
 
         
 
              2.  Claimant's entitlement to healing period benefits for 
 
         the period from January 17, 1986 through.September 11, 1987; and
 
         
 
              3.  The extent, if any, of defendants' entitlement to credit 
 
         under Iowa Code section 85.38(2).
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on November 3, 1983, when, after 
 
         organizing boxes, he heard a "pop" when he went to stand up 
 
         causing him to fall to the floor.  Claimant was hospitalized by 
 
         ambulance and,was off work through December 26, 1983.  Claimant 
 
         worked for approximately six weeks thereafter, but during this 
 
         time his "back was not what it should have been."  Claimant 
 
         continued to have problems and, after a CT scan, underwent 
 
         surgery on March 8, 1984.  Claimant recalled he was released to 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         return to work on March 10, 1985 without restrictions and 
 
         although his return was "rough" he did everything that was 
 
         required of him even if it meant going to bed as soon as he got 
 
         home.  Claimant continued to work until January 17, 1986 when he 
 
         "could not maneuver anymore" and underwent further surgery in 
 
         April of 1986. Claimant recalled that following surgery he "did 
 
         not do very good" and was in a lot of pain.  Claimant recalled he 
 
         was released from his physician's care September 11, 1987 when 
 
         there was "no more" that could be done for him.  Claimant 
 
         testified he was told not to return to work and to refrain from 
 
         all activity that may irritate his.back.  Claimant has not 
 
         returned to any employment and cannot now pursue any recreational 
 
         activities that he previously enjoyed. Claimant explained that he 
 
         can sit, stand or walk for approximately fifteen minutes without 
 
         becoming uncomfortable, that he always has some discomfort, that 
 
         he has to lie down after being,up one to two hours "to get the 
 
         pressure off" and that he can drive a motor vehicle for a maximum 
 
         of thirty minutes. Claimant testified he considers himself a 
 
         "tough" person who has done his best to come back from this 
 
         injury but there is no work he believes he is capable of doing.  
 
         Claimant admitted on cross-examination that he has not sought 
 
         employment since his release from his physician's care in 
 
         September of 1987 and testified he presently receives social 
 
         security disability benefits in addition to long-term disability 
 
         benefits provided by defendant employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Gracie Gritton testified claimant had no back problems prior 
 
         to his injury, that claimant "could do anything" and that he 
 
         "loved" his job.  Mrs. Gritton affirmed claimant's testimony he 
 
         cannot do anything he did prior to the injury and essentially 
 
         "does nothing" anymore.  Mrs. Gritton described claimant as a 
 
         "fraction of the man he used to be" whose "lifestyle has 
 
         completely changed."
 
         
 
              Melvin Baxter, who described himself as claimant's friend 
 
         since approximately 1978, testified that claimant is a good man, 
 
         who was strong, with "endurance."  Mr. Baxter stated that while 
 
         before claimant could do anything, he does not know of anything 
 
         claimant can now do.
 
         
 
              Charlene Hill testified she has known claimant for 
 
         approximately eight years through camping trips on the Cedar 
 
         River and that she has observed a lot of changes in claimant both 
 
         physically and mentally since his injury.  Ms. Hill confirmed 
 
         claimant's testimony of his limitations and abilities.
 
         
 
              Candice Kaelber, who identified herself as a rehabilitation 
 
         coordinator doing vocational assessments (to evaluate work 
 
         potential), case management and job placement with Intracorp, 
 
         affirmed the contents of her report found in exhibit 16.  Ms. 
 
         Kaelber stated that on the request of defendants she visited with 
 
         claimant for about an hour, read various reports and relied on 
 
         Dr. Carlstrom's physical capabilities for making her 
 
         recommendations. Ms. Kaelber's vocational assessment provides:
 
         
 
                   Based on Mr. Gritton's previous work experiences, 
 
              education and physical capabilities (as delineated by Dr. 
 
              Thomas Carlstrom) it is my opinion that Mr. Gritton could 
 
              successfully perform selected jobs, a few of which are 
 
              listed below.  The foundation for this determination was 
 
              predicated on an analysis of Mr. Gritton's previous jobs and 
 
              education and was obtained by researching the Dictionary of 
 
              Occupational Titles and Selected Characteristics of 
 
              Occupations in the Dictionary of Occupational Titles.  The 
 
              job titles noted are jobs in which the physical demands are 
 
              defined as sedentary (lifting 10 pounds maximum) or light 
 
              (lifting 20 pounds maximum with frequent lifting/carrying of 
 
              10 pounds), in keeping with Mr. Gritton's physical 
 
              restrictions.  The jobs are those in which the math/language 
 
              requirements are equivalent to those required of Mr. Gritton 
 
              in his previous jobs or of a high school graduate.  The jobs 
 
              require vocational preparation time of three to six months 
 
              maximum, again equivalent to the training time required in 
 
              Mr. Gritton's previous work.  The jobs also might reasonably 
 
              be found within a 30 minute driving distance of Mr. 
 
              Gritton's home, however, no labor market survey was 
 
              performed which identified specific job openings.
 
         
 
         (Joint Exhibit 16, Page 2)
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Edward A. Dykstra, M.D., a member of the American Academy of 
 
         Orthopedic Surgeons, the Iowa Orthopedic Society, and the Johnson 
 
         County Medical Society, testified he first saw claimant in the 
 
         emergency room on November 3, 1983 and that after examination and 
 
         x-rays, he found claimant to have a "Grade I spondylolisthesis, 
 
         and that means slippage of the fifth lumbar vertebrae on the 
 
         first sacral vertebrae."  (Jt. Ex. 27)
 
         
 
              Dr. Dykstra explained claimant was treated conservatively 
 
         throughout November and December 1983 and was released to return 
 
         to work without restriction on December 23, 1983 as:
 
         
 
              At that time he was doing somewhat better, wished to return 
 
              to work.  And again we decided to drop his restrictions and 
 
              see if he could do it at that stage because that's the only 
 
              way they would allow him to work.
 
         
 
         (Jt. Ex. 27, p. 8)
 
         
 
         
 
              Dr. Dykstra continued treating claimant and by March 1984 
 
         considered the conservative treatment regime to be a failure and 
 
         scheduled claimant for a lateral mass fusion at L5,Sl level which 
 
         was carried out on March 9, 1984.
 
         
 
              Dr. Dykstra testified that when he saw claimant on July 19, 
 
         1984, he found claimant to be healing "very, very slowly," that 
 
         claimant was "still having a fair amount of discomfort in his 
 
         back," and that he began to be concerned with the rate of 
 
         recovery.  Claimant was placed in a body jacket on September 11, 
 
         1984 to "try to relieve all muscle motion at the bottom to see if 
 
         we could get his back spasms quiet" and at that point claimant 
 
         was released to return to work.  Dr. Dykstra stated:
 
         
 
              Q.  He returned again on 10-9-84.  At that point was it your 
 
              impression that he had improved somewhat?
 
         
 
              A.  Yes, he was considerably better.
 
         
 
              Q.  And what else do your notes reflect,regarding that 
 
              visit?
 
         
 
              A.  Again that he worked for the DOT and they could not 
 
              allow him to return to work with any restrictions, and with 
 
              this policy I felt he'd probably be out for nearly a year 
 
              from the time of fusion.
 
         
 
         (Jt. Ex. 27, p. 13)
 
         
 
              Claimant was released to return to work without restrictions 
 
         again on March 11, 1985 although Dr. Dykstra's notes state:  "I 
 
         remain concern [sic] about their total refusal to consider any 
 
         limited duty activity however I do feel he is recovered enough at 
 
         this time to resume employment.  Will wear the corset upon heavy 
 
         lifting."  (Jt. Ex. 27, Deposition Exhibit 1, Page 9)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In June of 1985, claimant reported neck symptoms which Dr. 
 
         Dykstra diagnosed as cervical spondylolysis or cervical arthritis 
 
         and for which he prescribed a cervical collar and motion 
 
         exercises.
 
         
 
              On September 9, 1985, claimant reported his back was doing 
 
         quite well but that he was experiencing "rather severe left 
 
         radicular leg pain" which was "much worse on standing and 
 
         relieved by sitting."  EMG's were ordered which showed "chronic 
 
         L5 nerve root involvement on the left with some overlap of the S1 
 
         nerve root" (Jt. ex. 27, p. 21) and which Dr. Dykstra eventually 
 
         considered new pathology since claimant never had significant 
 
         complaints of leg pain prior to this time.  A CT scan showed some 
 
         swelling of the L5 nerve roots and "some questionable 
 
         fragmentation of the fusion primarily on the left side."  Dr. 
 
         Dykstra "tried" an epidural steroid injection and claimant was to 
 
         remain off work from October 23 through October 28, 1985.  Dr. 
 
         Dykstra reported that at claimant's appointment on January 17, 
 
         1986, claimant:
 
         
 
              [w]as having problems again with his back.  Was also having 
 
              a great deal of left leg pain.  At that time I felt some 
 
              improvement could be made surgically as far as his 
 
              day-to-day function, but it was unlikely that he was going 
 
              to be able to function in an eight-hour day workweek and 
 
              that I certainly couldn't guarantee that if we did surgery.  
 
              I went through a few things that I didn't think he would be 
 
              able to do including driving a heavy truck for more than two 
 
              hours at a time and driving the end loaders or the 
 
              jackhammers or the pan tempers or.the chain saws and some of 
 
              the other things that he had to do.
 
         
 
              Q.  At that point did you instruct him not to return to 
 
              work?
 
         
 
              A.  Yes.
 
         
 
         (Jt. Ex. 27)
 
         
 
              Claimant underwent a decompressive laminectomy on April 3, 
 
         1986, and Dr. Dykstra testified:
 
         
 
              Q.  All right.  Now, with respect to the -- your operative 
 
              report, you indicated as a preoperative diagnosis 
 
              spondylolisthesis L5 and S1 with L5 nerve root entrapment. 
 
              Doctor, based upon a reasonable medical certainty, will you 
 
              please state whether in your opinion the L5 nerve root 
 
              entrapment for which you performed the decompressive 
 
              laminectomy on April 3rd, 1986, was in fact related to the 
 
              original November 3rd, 1985, aggravation of the preexisting 
 
              spondylolisthesis, and, if so, will you please explain the 
 
              reasons for that connection, if any, you've drawn?
 
         
 
              A.  Well, the L5 nerve root entrapment without question is 
 
              related to the spondylolisthesis, and I think indirectly 
 
              related to the surgery that was performed in an attempt to 
 
              stabilize that spondylolisthesis.  And the entrapment 
 
              occurred because of the defect that's there and the surgery 
 
              that was performed to try to correct the defect at that 
 
              time, and certainly that surgery was performed to treat an 
 
              aggravation that resulted from his original injury, yes.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  Doctor, in your estimation assuming that he had not 
 
              returned to work on March 11th, 1985, which is when you 
 
              released him after the first surgery, in your opinion based 
 
              upon a reasonable medical certainty would he still have 
 
              faced this laminectomy surgery because of L5 nerve root 
 
              entrapment?
 
         
 
              A.  Yes, I think this would have occurred whether he went 
 
              back to work or whether he sat in his chair.
 
         
 
         (Jt. Ex. 27, pp. 23-24)
 
         
 
              Dr. Dykstra testified to claimant's continuing problems (see 
 
         joint exhibit 27, pages 25 through 28) and claimant's rejection 
 
         of, with Dr. Dykstra's concurrence, the surgery.  Dr. Dykstra 
 
         last saw claimant on September 11, 1987, stating:
 
         
 
              Q.  And at that time did you feel -- did you release him 
 
              feeling he had reached a maximum state of improvement?
 
         
 
              A.  Yes.
 
         
 
              Q.  What was your feeling at that time whether he would have 
 
              long-term problems?
 
         
 
              A.  I don't think there's any question Norman's going to 
 
              have problems with his back for the rest of his life.
 
         
 
              Q.  Now, Doctor, just from your point of view, is there any 
 
              gainful employment that you can -- that comes to mind that 
 
              you feel Mr. Gritton could pursue given his present 
 
              condition?
 
         
 
              A.  Norm has trouble sitting for more than about 15 or 20 
 
              minutes at a time without getting up and walking, and he 
 
              also has trouble standing for more.than about 30 or 40 
 
              minutes without sitting down or laying down for a period, 
 
              and I'm not sure what job I could suggest.  Maybe a job at 
 
              home that he does something, but I'm not sure what type of 
 
              job he could function in.
 
         
 
         (Jt. Ex. 27, p. 29)
 
         
 
              Dr. Dykstra opined claimant has a "25 percent disability as 
 
         far as the function of his back."
 
         
 
              G. Brian Paprocki, who identified himself as a vocational 
 
         consultant in the private sector providing "evaluation services 
 
         for individuals who are involved in some type of litigation," 
 
         testified his initial contact with claimant came as a result of 
 
         his participation in claimant's hearing before the Social 
 
         Security Administration.  Mr. Paprocki explained that he appeared 
 
         as a consultant to the court with respect to claimant's 
 
         vocational capabilities in that proceeding.  Mr. Paprocki 
 
         testified:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Q.  Now, are you aware that Dr. Dykstra is the orthopod who 
 
              has treated Mr. Gritton since the original injury he 
 
              sustained on the job in November of 1983?
 
         
 
              A.  Yes, I am.
 
         
 
              Q.  All right.  Given the restrictions that he identifies 
 
              and delineated in his March 30, 1988 letter, in your 
 
              judgment could Mr. Gritton successfully perform any of the 
 
              jobs identified by Candice Kaelber in paragraphs one through 
 
              eight, which appear in the bottom of page two and three -- 
 
              bottom of page two and top of page three of his report?
 
         
 
              A.  I would say he wouldn't be able to.  There are certain 
 
              expectations for someone who hopes to be competitively 
 
              employed.  You expect that an individual is capable of going 
 
              to work on a regular basis and that they are capable of 
 
              putting forth a consistent work effort or normal work shift, 
 
              which generally is eight hours if we're talking about 
 
              full-time employment.  An individual who had to lie down for 
 
              an hour or two, especially even more at their requirement 
 
              rather than something that could be scheduled, simply is 
 
              something beyond the scope of competitive employment.  In 
 
              other words, a normal employer really couldn't be expected 
 
              to tolerate that, and the normal employer wouldn't.
 
         
 
              Q.  What about the fact that he can't lift any amount of 
 
              weight repetitively in the judgement of Dr. Dykstra?
 
         
 
              A.  I don't see that as a totally precluding type of 
 
              employment.  There are jobs where individuals are not 
 
              lifting weight repetitively, and there may be jobs where an 
 
              individual is really not expected to lift much of anything, 
 
              such as is the case of a gate guard.
 
         
 
              Q.  And what about the restrictions on sitting and standing? 
 
              Would they hamper his employability?
 
         
 
              A.  I think they probably would.  There are jobs again that 
 
              if an individual was capable of only sitting or standing, he 
 
              could do some type of activity.  But the number of jobs that 
 
              would allow for that great of latitude in positional change 
 
              are very few.
 
         
 
         (Jt. Ex. 28, pp. 40-42)
 
         
 
              Mr. Paprocki opined.
 
         
 
              Q.  Ultimately then, assuming the validity of the 
 
              restrictions that Dr. Dykstra identified in his March 30, 
 
              1988 letter, is there any employment in your opinion that 
 
              Mr. Gritton could gainfully pursue?
 
         
 
              A.  No.  And again, I think the primary factor is the need 
 
              to lie down, to be off the job for an extended period of 
 
              time.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 28, pp. 11-17)
 
         
 
              Mr. Paprocki stated:
 
         
 
              Q.  ...Based upon Dr. Carlstrom's restriction, given those 
 
              restrictions alone, can you think of anything he can do?
 
         
 
              A.  No, I'll try to clarify my answer.  Some of the jobs I 
 
              would not.have addressed.  The billing machine operator is 
 
              something he simply doesn't have skill for.  The jobs with 
 
              extended standing that would be entailed, such as a 
 
              salesclerk, would not be possible.  I would say the security 
 
              guard job would possibly be applicable from the standards of 
 
              Social Security in terms of jobs in existence.. But when 
 
              you're looking at something like this, you're not only 
 
              looking at jobs in existence, you're looking at the prospect 
 
              of him being hired, which would depend on two factors, the 
 
              number of jobs in existence, not just saying they exist in 
 
              two or more regions of the country in substantial number, 
 
              but which exist in this particular area.  And also that he 
 
              would have a reasonable expectation of gaining employment, 
 
              and I don't believe that he would be able to gain employment 
 
              at any of these jobs or any of the others.  With just these 
 
              restrictions in a.Social Security setting, I would come up 
 
              with some of these jobs, but they're not realistic.  They're 
 
              not feasible.  You have to remember that Social Security is 
 
              not reality.  It's really kind of a hypothetical construct. 
 
              They don't take into account the person's ability to get to 
 
              the job.  They don't take into account the ability to 
 
              actually secure employment, and they don't look at what 
 
              earnings would be possible at a particular job.
 
         
 
         (Jt. Ex. 28, pp. 66-67)
 
         
 
              At the request of Marilyn P. Haugen of the Disability 
 
         Determination Services Bureau, claimant was evaluated in 
 
         approximately October of 1987 by Byron W. Rovine, M.D., a 
 
         neurological surgeon, "because of chronic recurrent back, hip and 
 
         leg pain."  Dr. Rovine concluded:
 
         
 
                   Using the AMA Disability Determination Tables, the 
 
              restriction of Mr. Gritton's lumbar spine motion would 
 
              produce a 22% permanent/partial disability.  I do not 
 
              believe that the restriction in back motion alone tell the 
 
              entire story.  I have.considerable reason to suspect that he 
 
              may also be suffering from trochanteric bursitis of the left 
 
              hip, which would certainly add to his disability.  The 
 
              medical information provided indicates that his [sic] year 
 
              he has had EMG studies which show the likelihood of active 
 
              radiculopathy in the lumbar area.  He is having a great deal 
 
              of pain when he attempts to move around and do anything.  I 
 
              do not believe that he is capable of remaining in any one 
 
              position, either sitting or standing, long enough to be 
 
              gainfully employed.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   It would appear from the requisition of this 
 
              evaluation, that some consideration is being given to 
 
              psychiatric or psychologic factors involved in Mr. Gritton's 
 
              disability.  I can find no evidence from talking to Mr. 
 
              Gritton and examining into the details of his past life, 
 
              that there is any reason to suspect any mental or emotional 
 
              aspects to this, other than the normal depression and 
 
              frustration that would accompany chronic pain and the 
 
              inability to be gainfully employed for so long.
 
         
 
         (Jt. Ex. 9)
 
         
 
              In November of 1987, claimant was evaluated by Alice J. 
 
         Harpring, M.D., a neurologist-psychiatrist, also at the request 
 
         of the Disability Determination Services Bureau.  Dr. Harpring 
 
         opined:
 
         
 
              IMPRESSION:  It would seem that this man's personality was 
 
              healthy until the recent accident.  He has developed 309.00 
 
              adjustment disorder with depressed mood.  As he said, on 
 
              November 3, 1983 his whole life changed.  Neurologically it 
 
              was quite evident that he was in a great deal of discomfort 
 
              and certainly the continuing has markedly contributed to his 
 
              psychological disability.  It is my opinion that this man 
 
              could benefit by psychiatric consultation and treatment and 
 
              this could be of great help in helping him make an 
 
              adjustment to a life that will be so completely different 
 
              than that which he has known, before.  He will never be 
 
              able.to be employed in any but a sedentary to very light 
 
              type of physical work.. To be successful he is going to have 
 
              to move to a position where he can see value in the kind of 
 
              work as opposed to being a very strong physically, capable 
 
              human being.
 
         
 
         (Jt. Ex. 10)
 
         
 
              Claimant was seen by Thomas A. Carlstrom, M.D., a 
 
         neurological surgeon, on January 26, 1988.  Following his 
 
         examination, Dr. Carlstrom concluded:
 
         
 
                   I think this patient is experiencing mechanical and 
 
              radicular symptoms because of a failed back syndrome.  I see 
 
              little likelihood that any specific treatment will markedly 
 
              improve his symptoms in the future except for perhaps an 
 
              exercise program with weight loss.  I think that what he 
 
              mostly needs is job rehabilitation with an attempt to return 
 
              him to some type of light-duty.  I would recommend avoidance 
 
              of lifting greater than about 35 pound maximum, and 20 
 
              pounds repetitively.  He will also need to avoid prolonged 
 
              sitting, standing, and cramped postures in general.  I do 
 
              think that he has suffered a permanent impairment as a 
 
              result of this injury and would suggest an impairment rating 
 
              of about 20% of the body as a whole.  I think he reached 
 
              maximum benefits of healing sometime ago, probably about 
 
              July of 1986.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (Jt. Ex. 11)
 
         
 
              At the request of defendants, Iowa Methodist Pain Management 
 
         Center performed an evaluation of claimant and noted that the 
 
         physical findings observed by the evaluation team were consistent 
 
         with claimant's diagnosis of spondylolisthesis, status post 
 
         laminectomy and fusion.  No evidence of malingering was noted and 
 
         it was recommended that claimant is appropriate for vocational 
 
         rehabilitation toward retraining and re-employment.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              As the parties do not dispute claimant sustained an injury 
 
         which arose out of and in the course of his employment or that 
 
         the injury is the cause of both temporary and permanent 
 
         disability, it is necessary to consider only the issue of the 
 
         extent of disability which includes the related issue of whether 
 
         or not claimant is an odd-lot employee as contemplated by Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently;.the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the,determination of the degree of industrial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton, supra, a worker becomes an 
 
         odd-lot employee when an injury makes the worker incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  An odd-lot worker is thus totally disabled if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist. Id., citing Lee v. Minneapolis Street 
 
         Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950).  
 
         The rule of odd-lot allocates the burden of production of 
 
         evidence.  If the evidence of degree of obvious physical 
 
         impairment, coupled with other facts such as claimant's mental 
 
         capacity, education, training or age, places claimant prima-facie 
 
         in the odd-lot category, the burden should be on the employer to 
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.  Certainly in such cases 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         noncompensable by adding a presumption that light work is 
 
         available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a  matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
                   The commissioner did not in his analysis address any of 
 
              the other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in a 
 
              gauging industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of 
 
              CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  See 
 
              McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 
 
              1980).
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 
 
         (1935) the court, addressing the issue of the meaning of 
 
         disability stated:
 
         
 
                   What is "permanent total disability"?  Does this clause 
 
              refer to "functional disability" or to "industrial 
 
              disability"?
 
                   
 
                   For clearness we shall use the term "industrial 
 
              disability" as referring to disability from carrying on a 
 
              gainful occupation--inability to earn wages.  By "functional 
 
              disability" we shall refer to the disability to perform one 
 
              or more of the physical movements which a normal human being 
 
              can perform.
 
         
 
                 ....
 
         
 
                   It is obvious that "disability" here used cannot refer 
 
              to mere "functional disability",....
 
                   
 
                   It is...plain that the legislature intended the term 
 
              "disability" to mean "industrial disability" or loss of 
 
              earning capacity and not a mere "functional disability" to 
 
              be computed in terms of percentages of the total physical 
 
              and mental ability of a normal man.
 
         
 
                 ....
 
         
 
                   ...[T]he Compensation law was passed for the purpose of 
 
              compensating the working man when injured.  The loss which 
 
              this claimant suffered due to the injury which he received 
 
              while in the employ of the company is the inability to carry 
 
              on the work he was doing prior to the time of the injury, or 
 
              any work which he could perform.  This man at fifty-nine 
 
              years of age, after thirty years as a street car motorman, 
 
              with little education, cannot find or hold a position that 
 
              would not require some manual labor, and, of course, due to 
 
              the condition of his back, he cannot perform such work.  To 
 
              say that he might become a stenographer or a lawyer or a 
 
              clerk or a bookkeeper is to suppose the impossible, for a 
 
              fifty-nine-year old.man, with no education, is not capable 
 
              of securing or filling any such position.  His disability 
 
              may be only a twenty-five or thirty per cent disability 
 
              compared with the one hundred per cent perfect man, but, 
 
              from the standpoint of his ability to go back to work to 
 
              earn a living for himself and his family, his disability is 
 
              a total disability, for he is not able to again operate the 
 
              street car and perform the work which the company demanded 
 
              of him prior to the time of the accident.
 
         
 
              While claimant asserts the applicability of the odd-lot 
 
         doctrine, it is concluded that whether or not claimant is an 
 
         odd-lot employee under Guyton, is irrelevant to this case as the 
 
         evidence establishes claimant is permanently and totally disabled 
 
         under the principles recited in Diederich v. Tri-City R. Co., 219 
 
         Iowa 587, 258 N.W. 899 (1935).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has been seen by a number of physicians in this 
 
         case.  Dr. Dykstra, claimant's treating physician, described 
 
         claimant's limitations as:
 
         
 
              I do not think that the patient should lift any amount of 
 
              weight repetitively.
 
         
 
                   He cannot endure any jerking or jarring movements to 
 
              the body and should avoid any twisting, rotating or bending, 
 
              squatting, kneeling, crouching or stooping.
 
         
 
                   In my opinion, the maximum Mr. Gritton should be 
 
              required to sit is 15-20 minutes and the maximum he should 
 
              be required to stand is 15-20 minutes.  After alternating 
 
              standing and sitting for an hour to an hour and a half, Mr. 
 
              Gritton should be allowed to lie down for an hour to two 
 
              hours.
 
         
 
         (Jt. Ex. 28; Dep. Ex. 3)
 
         
 
              Dr. Carlstrom, who saw claimant on one occasion solely for 
 
         the purpose of evaluation, also imposed restrictions on 
 
         claimant's employability although they do not appear to be as 
 
         limiting as Dr. Dykstra's.  Dr. Rovine stated:  I do not believe 
 
         that he [claimant] is capable of remaining in any one 
 
         position...long enough to be gainfully employed."  Dr. Harpring 
 
         found that claimant will "never be able to be employed in any but 
 
         a sedentary to very light type of physical work."  The pain 
 
         management center of Iowa Methodist Medical Center ruled out 
 
         malingering.  Claimant testified he can sit, stand or walk for up 
 
         to fifteen minutes without experiencing "a lot of pain."  The 
 
         undersigned would conclude that the opinion of Dr. Dykstra, as 
 
         the treating physician and as the physician who monitored 
 
         claimant's progress for years, is entitled to greater weight than 
 
         the opinion of Dr. Carlstrom.  The opinions of Drs. Rovine and 
 
         Harpring do not appear to controvert that of Dr. Dykstra.
 
         
 
              At the time of hearing, claimant was 40 years old and had a 
 
         work history consisting primarily of that of a laborer which 
 
         required a sustained physical effort on his part.  Clearly, as a 
 
         result of his injuries, claimant has been precluded from this 
 
         type of employment.  Indeed, defendant did not wish to return 
 
         claimant to work without a full release.  Claimant's 
 
         restrictions, as imposed by Dr. Dykstra, not only limits 
 
         claimant's ability to seek and retain employment, but would also 
 
         limit his ability to seek and successfully complete retraining.  
 
         These restrictions clearly establish claimant's inability to 
 
         work, either at employment or at retraining, over any sustained 
 
         period of time.  Relocation will not enhance claimant's 
 
         employability as his employability is not directly related to the 
 
         area in which he lives.
 
         
 
              This deputy was not moved by the testimony of defendants' 
 
         vocational rehabilitation expert, Candice Kaelber.  It is 
 
         unrealistic to believe, for example, that a person hired in a 
 
         sales clerk position would have absolutely no responsibilities 
 
         for any work outside of clerking.  The undersigned would agree 
 
         with much of the testimony of Mr. Paprocki who responded to Ms. 
 
         Kaelber's report.  Ms. Kaelber was requested to rely on Dr. 
 
         Carlstrom's report although she had available to her Dr. 
 
         Dykstra's deposition.  Ms. Kaelber acknowledged that if reliance 
 
         was placed on Dr. Dykstra's limitations, it would preclude 
 
         claimant from participating in the jobs which she listed as 
 
         within claimant's capabilities.  Notwithstanding, even if 
 
         claimant were capable of engaging in some employment as described 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         by Ms. Kaelber, a finding that there is some work that claimant 
 
         could do within the physical and educational limitations he has 
 
         does not foreclose the finding of permanent total disability.  
 
         See Eastman v. Westway Trading Corporation, II Iowa Industrial 
 
         Commissioner Report 134 (Appeal Decision 1982); and Chamberlin 
 
         v.Ralston Purina, Appeal Decision filed October 29, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has established to the satisfaction of the 
 
         undersigned that he has the  ability,to cope with his discomfort 
 
         by alternating positions for up to two and one-half hours but 
 
         that by that time his pain is such that he must lie flat to "get 
 
         the pressure off."  Such a requirement is not conducive to 
 
         seeking, accepting.and retaining employment.  Claimant's 
 
         disability is as a result of his work injury of November 3, 1983.  
 
         Given all the above, claimant has established that he is 
 
         permanently and totally disabled from employment during the time 
 
         of his disability.  See Iowa Code section 85.34(3).  It is not 
 
         necessary to further evaluate claimant's status of disability 
 
         under the Guyton factors. However, even if the principles of 
 
         Guyton were applicable, claimant would be a worker and capable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  Claimant is totally disabled under Guyton and the only 
 
         services claimant can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist.
 
         
 
              Claimant is entitled, therefore, to permanent total 
 
         disability benefits commencing January 17, 1986, and continuing 
 
         during the period of his disability.  Consequently, the parties 
 
         dispute over claimant's entitlement to healing period benefits 
 
         from January 17, 1986 to September 11, 1987 is moot and need not 
 
         be addressed.
 
         
 
              The final issue for decision is defendants' entitlement to 
 
         credit under Iowa Code section 85.38(2).  That section of the law 
 
         provides:
 
         
 
              In the event the disabled employee shall receive any 
 
              benefits, including medical, surgical or hospital benefits, 
 
              under any group plan covering nonoccupational disabilities 
 
              contributed to wholly or partially by the employer, which 
 
              benefits should not have been paid or payable if any rights 
 
              of recovery existed under this chapter, chapter,85A or 
 
              chapter 85B, then such amounts so paid to said employee from 
 
              any such group plan shall be credited to or against any 
 
              compensation payments, including medical, surgical or 
 
              hospital, made or to be made under this chapter, chapter 85A 
 
              or chapter 85B.  Such amounts so credited shall be deducted 
 
              from the payments made under these chapters.  Any 
 
              nonoccupational plan shall be reimbursed in the amount so 
 
              deducted.  This section shall not apply to payments made 
 
              under any group plan which would have been payable even 
 
              though there was an injury under this chapter or an 
 
              occupational disease under chapter 85A or an occupational 
 
              hearing loss under chapter 85B.  Any employer receiving such 
 
              credit shall keep such employee safe and harmless from any 
 
              and all claims or liabilities that may be made against them 
 
              by reason of having received such payments only to the 
 
              extent of such credit.
 
         
 
              Claimant initially argues that section 85.3-8(2) is 
 
         inapplicable on the basis that:  "In reviewing the group plan, 
 
         there is absolutely no indication that this is a non-occupational 
 
         plan and that if the injury was work-related, no rights exist 
 
         under the plan."  (Cl. Post-Hearing Brief, p. 56)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The long-term disability program established under Iowa Code 
 
         section 79.20 for state employees is a "group plan covering 
 
         nonoccupational disabilities."  It is clear from both section 
 
         79.20 and the contract between the state and the Principal 
 
         Financial Group that benefits under the long-term disability plan 
 
         will not be fully payable if the injury was one covered under the 
 
         workers' compensation laws of the state.  Iowa Code section 79.20 
 
         provides that benefits will be reduced by workers' compensation 
 
         if applicable.  Section 13 of the contract provides "that a 
 
         disabled State employee receives a monthly benefit less any 
 
         payments for that month for which he and any of his dependents 
 
         are eligible to receive under ... Workers' Compensation."  (Jt. 
 
         Ex. 18). Consequently, claimant's initial argument must fail.  In 
 
         addition, see Lowe v. Iowa State Penitentiary and State of Iowa, 
 
         file numbers 673326, 776977 and 805718, (Appeal Decision filed 
 
         December 16, 1988) wherein the industrial commissioner held that 
 
         defendants were entitled to a credit for State of Iowa long-term 
 
         disability plan.
 
         
 
              In the alternative, claimant argues that:
 
         
 
              [I]f the State of Iowa is entitled to claim a credit for 
 
              benefits paid under the group plan pursuant to the 
 
              provisions of 85.38(2) of the 1983 Code of Iowa, the 
 
              Claimant asserts that the State of Iowa's credit is limited 
 
              to the healing period benefits to which the Claimant is 
 
              entitled during the period of time that the Claimant 
 
              received long-term disability benefits under the group plan, 
 
              payment of which commenced on May 30, 1986.
 
         
 
         (Cl. Post-Hearing Brief)
 
         
 
              Although the undersigned does not discuss the terms of the 
 
         administration of the long-term disability program within the 
 
         "facts presented" portion of this decision, all the information 
 
         in evidence submitted has been reviewed.  Succinctly summarized, 
 
         it has been the practice of the state to limit its credit to 
 
         healing period benefits paid and not to take any credit for 
 
         permanent disability benefits.  Claimant urges the undersigned to 
 
         follow defendants' practices which are asserted to be controlling 
 
         while defendants urge that it is the statutory provisions of Iowa 
 
         Code section 79.20 which controls.  This deputy respectfully 
 
         rejects both assertions and states that it is the workers' 
 
         compensation laws of the state of Iowa alone which controls the 
 
         issue.
 
         
 
              As cited above, Iowa Code section 85.38(2) allows the 
 
         employer a credit "to or against any compensation payments." 
 
         (Emphasis added.)  Therefore, regardless of defendants' past, 
 
         current or future practices, and regardless of the provisions of 
 
         any other section of the Iowa Code, section 85.38(2) includes all 
 
         compensation payments without distinguishing between temporary 
 
         total disability benefits, healing period benefits, permanent 
 
         partial disability benefits or permanent total disability 
 
         benefits.  Therefore, it can only be concluded that defendants 
 
         are entitled a credit against the compensation payments made to 
 
         claimant for any long-term disability payments made to claimant. 
 
         Simply put, to do otherwise would be to compensate claimant twice 
 
         for the same injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   Once it is recognized that workmen's compensation is 
 
              one unit in an overall system of wage-loss protection, 
 
              rather than something resembling a recovery in tort or on a 
 
              private accident policy, the conclusion follows the 
 
              duplication of benefits from different parts of the system 
 
              should not ordinarily be allowed.
 
         
 
         4 Larson, Workmen's Compensation Law Section 97.00 (1984)
 
         
 
              Having decided defendants are entitled to a credit, the 
 
         question becomes what is the amount of that credit.
 
         
 
              Claimant argues that the offset should apply only to the 
 
         real benefits conferred upon him by virtue of the long-term 
 
         disability policy since those benefits are reduced by taxes and 
 
         social security disability benefits received.  Claimant must 
 
         prevail on this point for to do otherwise would deny claimant the 
 
         full amount of benefits to which he is entitled under the 
 
         workers' compensation statute.  Iowa Code section 85.38(2) refers 
 
         to "amounts so paid to said employee."  A literal interpretation 
 
         of this phrase dictates the conclusion reached herein.  
 
         Therefore, defendants are entitled to a credit for the net 
 
         amounts received by claimant under the long-term disability plan.  
 
         See also Giles v. Barton Solvents, Inc., file numbers 816148 and 
 
         816149, (Arbitration Decision filed August 25, 1987).
 
         
 
              In light of the above, claimant's motion to reopen the 
 
         record should be and is hereby denied.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on November 3, 1983.
 
         
 
              2.  The parties have stipulated and agreed that claimant's 
 
         injury is the cause of both temporary and permanent disability.
 
         
 
              3.  Claimant was originally treated conservatively and, when 
 
         the conservative treatment regime was seen to be a failure by his 
 
         physician, underwent a lateral mass fusion at L5,S1.
 
         
 
              4.  Subsequent to that mass fusion, claimant underwent an 
 
         epidural injection.
 
         
 
              5.  In April of 1986, claimant underwent a decompressive 
 
         laminectomy.
 
         
 
              6.  Defendants have demanded the full release from claimant 
 
         before claimant would be permitted to return to work.
 
         
 
              7.  Claimant did return to work for periods of time 
 
         subsequent to the injury but ultimately was unable to provide 
 
         defendants with a full release, without restrictions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              8.  Claimant has not returned to work since January 17, 
 
         1986.
 
         
 
              9.  Claimant, age 40, with a work history primarily of that 
 
         as a laborer, has been precluded, as a result of his injury, from 
 
         engaging in employment for which he is fitted by education and 
 
         experience.
 
         
 
              10.  Claimant has restrictions on his employability which 
 
         preclude him from engaging in gainful employment.
 
         
 
              11.  Claimant is permanently totally disabled as a result of 
 
         the injury of November 3, 1983.
 
         
 
              12.  Claimant received social security disability and 
 
         long-term disability benefits under a plan provided by his 
 
         employer.
 
         
 
              13.  Defendants are entitled to a credit for payment of 
 
         long-term disability benefits pursuant to Iowa Code section 
 
         85.38(2).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  As a result of the injury of November 3, 1983, and as of 
 
         January 17, 1986, claimant is permanently and totally disabled.
 
              
 
              2.  Defendants are entitled to a credit for the amount 
 
         actually paid to claimant under its long-term disability plan 
 
         against workers' compensation benefits due.
 
              
 
              3.  Claimant's motion to reopen the record is denied.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant permanent total 
 
         disability benefits at the rate of one hundred ninety-two and 
 
         56/100 dollars ($192.56) per week commencing January 17, 1986 and 
 
         continuing for the period of his disability.
 
         
 
              Defendants shall receive credit for all permanent disability 
 
         benefits previously paid.
 
         
 
              Defendants shall receive credit for amounts actually paid to 
 
         claimant under the long-term disability plan against workers' 
 
         compensation benefits due.
 
         
 
              Benefits that have accrued shall be paid to claimant in a 
 
         lump sum together with statutory interest thereon pursuant to 
 
         Iowa Code section 86.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
              
 
              
 
              Signed and filed this 20th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr J. Nicholas Russo
 
         Attorney at Law
 
         615 Iowa State Bank Bldg
 
         Iowa City, IA  52240
 
         
 
         Mr Merrell Peters
 
         Assistant Attorney General
 
         Department of Transportation
 
         Ames, IA  50010
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1001; 3303.10
 
                           Filed January 3, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            NORMAN GRITTON,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 751165
 
                      :
 
            DEPARTMENT OF TRANSPORTATION, :      C O M M U T A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1001; 3303.10
 
            Claimant, who desired to invest lump sum commutation 
 
            proceeds in payment of his home mortgage with the balance to 
 
            be placed in money market accounts, was granted full 
 
            commutation as requested.  The amount to be applied to 
 
            attorney fees was not approved and counsel was directed to 
 
            submit documentation showing that the one-third contingent 
 
            fee was appropriate.
 
            
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1804; 4100; 1700
 
                                            Filed December 20, 1989
 
                                            Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         NORMAN GRITTON,
 
         
 
              Claimant,                            File No. 751165
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         DEPARTMENT OF TRANSPORTATION,             D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF  IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1804
 
         
 
              Claimant, age 40, with work experience only as an unskilled 
 
         heavy laborer, injured his back and underwent a lateral mass 
 
         fusion at L5,Sl, then an epidural injection and then a 
 
         decompressive laminectomy.  Defendants demanded a full release 
 
         from claimant before he would be permitted to return to work. 
 
         Claimant's work restrictions preclude him from engaging in 
 
         employment for which he is fitted or any gainful employment as 
 
         claimant must lie down approximately every two hours.  Claimant's 
 
         restrictions also preclude retraining.  Claimant found to be 
 
         permanently, totally disabled.
 
         
 
         4100
 
         
 
              Claimant found permanent total not odd-lot.
 
         
 
         1700
 
         
 
              Defendants entitled to credit for long-term disability 
 
         benefits actually paid to claimant against all compensation 
 
         benefits regardless of type.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANDREW CURRY,
 
         
 
             Claimant,
 
                                                   File No. 751460
 
         VS.
 
         
 
         FLOYD VALLEY PACKING COMPANY,          A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         ARGONAUT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Andrew Curry, against his employer, Floyd Valley Packing Company, 
 
         and its insurance carrier, Argonaut Insurance Company, to recover 
 
         benefits under the Iowa Workers' Compensation Act, as a result of 
 
         an injury allegedly sustained November 4, 1983.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner in Sioux City, Iowa, on April 28, 1987.  A first 
 
         report of injury was filed December 5, 1983.  Defendants have 
 
         paid claimant 3 1/7 weeks of disability with disability payments 
 
         ending on December 13, 1983.  The record was considered fully 
 
         submitted at close of hearing.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, as well as of claimant's exhibits 1 through 6, and 
 
         defendants' exhibits A and B. All exhibits are identified on the 
 
         exhibit list submitted by the parties as part of the official 
 
         file in this matter.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is $244.10, and that 
 
         his commencement date for any additional benefits is December 14, 
 
         1983.  The issues remaining to be decided are:
 
         
 
              1)  Whether claimant received an injury which arose out of 
 
         and in the course of his employment;
 
              2)  Whether there is a causal relationship between that 
 
         injury and the claimed disability; and
 

 
         
 
         
 
         
 
         CURRY V. FLOYD VALLEY PACKING COMPANY
 
         Page   2
 
         
 
         
 
         
 
              3)  Whether claimant is entitled to benefits.
 
         
 
              The parties have stipulated that any permanency is to a 
 
         scheduled member, that being claimant's left foot.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant is 30 years old and a high school graduate.  He 
 
         began work with Floyd Valley Packing in September 1982 and worked 
 
         predominantly as a hog sorter who directed hog carcasses into a 
 
         cooler.  On November 4, 1983, claimant testified that a heavy 
 
         stainless steel door hit his heel producing a sharp jolt and 
 
         stinging pain.  He indicated that the pain increased and that he 
 
         had swelling and discoloration in the foot.  Approximately three 
 
         weeks following the injury claimant saw Milton Grossman, M.D., 
 
         who subsequently referred him to William Krigsten, M.D., a board 
 
         certified orthopedist.  Claimant testified that Dr. Krigsten kept 
 
         him off work for approximately three and one-half weeks and that 
 
         Dr. Grossman subsequently released him to return to work at the 
 
         same job.  Claimant reported that on returning to work, he had 
 
         continuing pain and stiffness in the foot as well as throbbing 
 
         after an eight to ten hour day.  He testified that those symptoms 
 
         remain and that long walks and standing bother him.  He reported 
 
         that he can not jump or play basketball, apparently meaning 
 
         "horse" with his son.  Claimant has not had surgery.
 
         
 
              Milton Grossman, M.D., saw claimant on November 16, 1983 
 
         with swelling of the left heel at insertion of achilles tendon.  
 
         Claimant had no impairment of motion.  The doctor's diagnosis was 
 
         contusion of the left foot.  Dr. Grossman released claimant to 
 
         work on November 26, 1984 [sic].  On December 14, 1983, Dr. Gross 
 
         stated that he had treated claimant for a condition due to his 
 
         employment.
 
         
 
              William Krigsten, M.D., a board certified orthopedist, 
 
         initially saw claimant on November 22, 1983.  He noted a walnut 
 
         size swelling on the left to the midline where tendo achilles 
 
         inserts.  Claimant reported throbbing between the distal fibula 
 
         and ankle.  The area was inflamed and tender, but x-rays revealed 
 
         no fracture or dislocation.  The x-ray did reveal minimal 
 
         narrowing of the first metatarsal phalangeal joint bilaterally.  
 
         Claimant had no bony abnormality in the region of the marker of 
 
         the left os calcis.  The diagnosis was of a concussion of the 
 
         left heel with hematoma and questionable cellulitis.  The doctor 
 
         then opined that claimant probably had swelling in his heel from 
 
         birth onward even though claimant stated he had no swelling in 
 
         the heel prior to the injury.  On April 17, 1984, claimant 
 
         appeared with complaints that his heel hurt and with a prominence 
 
         on the lateral side of the left os calcis at the insertion of the 
 
         tendo achilles.  Dr. Krigsten reported that there were no 
 
         objective findings of infection or cysts; the area was firm; the 
 
         bone not movable.  He reported that there was no evidence of 
 
         disease or bony injury to achilles [tendon] or to the os calcis, 
 
         and that claimant had no permanent partial impairment.
 
         
 
              On November 4, 1984, E. M. Mumford, M.D., diagnosed bursitis 
 
         over a pump bump, that is, bursitis over exostosis which had been 
 
         aggravated by injury.  He prescribed a cut-out in claimant's shoe 
 

 
         
 
         
 
         
 
         CURRY V. FLOYD VALLEY PACKING COMPANY
 
         Page   3
 
         
 
         
 
         over the heel area.  X-rays of December 13, 1985 confirmed the 
 
         exostosis and revealed a much smaller exostosis on the right 
 
         foot.  The doctor's impression was that claimant had probably had 
 
         a bilateral pump bump, but that the steel door injury had caused 
 
         chronic bursitis with enlargement of the mass.  He recommended a 
 
         heel cup for claimant and stated that surgical removal of the 
 
         bump pump was possible, but could interfere with the achilles 
 
         tendon insertion and leave a painful scar.  On March 3, 1986, Dr. 
 
         Mumford opined that claimant's disability would result from his- 
 
         need to wear a shoe adjustment permanently.  On June 23, 1986, 
 
         Dr. Mumford opined that claimant had no great functional 
 
         disability if he could get an adequate insert in his shoe, but 
 
         that claimant could have "industrial disability" if required to 
 
         do very heavy work.
 
         
 
              On December 16, 1985, Dr. Krigsten stated that x-rays showed 
 
         an enlargement at the developmental lateral surface of the os 
 
         calcis.  Krigsten opined this did not result from injury and that 
 
         claimant's discomfort resulted from his boot rubbing about that 
 
         area.  Krigsten opined that the problem was not work-related.
 
         
 
              Anil K. Agarwal, M.D., examined claimant on July 23, 1986.  
 
         He then noted that claimant had very minimal puffiness in the 
 
         left heel area and that the heel was tender on palpation near the 
 
         tendo achilles insertion and just behind the tendo achilles 
 
         proximally.  Claimant had good dorsiflexion and plantar flexion 
 
         of the left calcaneum with no gross bump either on palpation or 
 
         visually.  Lateral x-rays of both heels revealed no gross 
 
         exostosis.  No neurological deficits or vascular problems were 
 
         evident.  The doctor opined that claimant possibly had mild retro 
 
         tendo achilles bursitis with associated mild tendinitis.  He 
 
         recommended that claimant use a heel cover pad which should be 
 
         sufficient to relieve his symptoms.  He reported that claimant 
 
         could be employed to lifting tolerance and opined that claimant 
 
         had a ten percent permanent partial impairment of the left foot 
 
         with a good prognosis.  The doctor did not recommend surgery as 
 
         he found no exostosis.
 
         
 
              The balance of the evidence was reviewed in the disposition 
 
         of this matter.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              We consider the question of whether claimant received an 
 
         injury which arose out of and in the course of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 4, 1983 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).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 

 
         
 
         
 
         
 
         CURRY V. FLOYD VALLEY PACKING COMPANY
 
         Page   4
 
         
 
         
 
         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 (1963) 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.
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              Testimony and medical records support claimant's contention 
 
         that a work incident occurred on November 4, 1983 when a heavy 
 
         stainless steel door hit claimant's left heel.  Hence, claimant 
 
         sustained his burden as regards this issue.  The greater question 
 
         is whether that work incident is causally related to any 
 
         permanent impairment to claimant's left foot.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 4, 1983 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. 0. 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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              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, 760-761 
 
         (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).
 
         
 
              Dr. Krigsten and Dr. Mumford describe claimant as having a 
 
         prominence or pump bump or exostosis on the lateral side of the 
 
         left os calcis at the insertion of the tendo achilles.  Dr. 
 
         Krigsten opines the condition is developmental and did not result 
 
         from claimant's work injury. claimant has a similar though less 
 
         enlarged condition on the right.  Dr. Mumford has opined that 
 

 
         
 
         
 
         
 
         CURRY V. FLOYD VALLEY PACKING COMPANY
 
         Page   5
 
         
 
         
 
         while claimant's exostosis or pump bump exists bilaterally, 
 
         claimant's steel door injury had caused chronic bursitis with 
 
         enlargement of the mass.  Dr. Mumford's opinion is accepted over 
 
         Dr. Krigsten's as more consistent with claimant's history.  
 
         Evidence presented does not suggest that claimant had problems on 
 
         the left prior to his work incident nor that he has had problems 
 
         with his right foot despite its apparently also having the pump 
 
         bump or prominence.  Dr. AgarwalOs opinion that claimant has no 
 
         prominence is rejected as inconsistent with the physical 
 
         examination and x-ray findings of claimant's treating physicians, 
 
         Krigsten and Mumford.  Claimant has shown the causal relationship 
 
         between his left foot condition and his work injury.
 
         
 
              We consider the benefit question.  The parties have agreed 
 
         that any permanency relates to the left foot.  As noted, Dr. 
 
         Krigsten opines claimant has no permanency.  Dr. Krigsten has 
 
         been claimant's treating physician.  Dr. Agarwal, an examining 
 
         physician, opines claimant had a ten percent permanent partial 
 
         impairment of the left foot with a good prognosis which 
 
         impairment is attributed to bursitis and mild tendonitis but not 
 
         to exostosis, that is pump bump or prominence.  Dr. Mumford, who 
 
         apparently has also treated claimant, opined claimant would have 
 
         no great functional disability if claimant were to wear an 
 
         adequate shoe adjustment permanently.  Dr. Agarwal does also 
 
         recommend a shoe adjustment.  Claimant does have a left foot 
 
         problem which did not predate his work injury.  The problem is 
 
         largely one of chronic bursitis, discomfort, and the need to wear 
 
         a shoe adjustment.  It involves no significant loss of motion or 
 
         neurological or vascular problems.  It does not rise to the level 
 
         of permanent partial disability Dr. Agarwal suggests, however.   
 
         Dr. Mumford's position appears to be the soundest of the three 
 
         presented.  It apparently represents a balance between that of 
 
         Krigsten and Agarwal.  We find a "no great" functional disability 
 
         to equal a slight disability, that is, less than ten percent 
 
         permanent partial impairment, which is generally considered a 
 
         moderate permanent partial impairment.  Claimant's permanent 
 
         partial impairment of the left foot is found to be five percent.
 
         
 
              Section 85.34(2)(o) provides 150 weeks of permanent partial 
 
         disability for loss of a foot.  Therefore, a five percent 
 
         permanent partial impairment of the foot equals 7.5 weeks of 
 
         disability entitlement.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant hit his left heel on a heavy stairless steel door 
 
         at work on or about November 4, 1983.
 
         
 
              Claimant subsequently had swelling and pain in the heel and 
 
         underwent medical treatment.
 
         
 
              Claimant has a prominence or pump bump or exostosis on the 
 
         lateral side of the left os calcis at the insertion of the tendo 
 
         achilles.
 
         
 
              Claimant has a similar though less large condition on the 
 
         right.
 

 
         
 
         
 
         
 
         CURRY V. FLOYD VALLEY PACKING COMPANY
 
         Page   6
 
         
 
         
 
         
 
              Claimant's condition is likely developmental.
 
         
 
              Claimant did not seek medical treatment for either the left 
 
         or right condition prior to his injury.
 
         
 
              Claimant's work injury caused claimant chronic bursitis with 
 
         enlargement of the mass on the left.
 
         
 
              Claimant will need to wear a shoe adjustment permanently.
 
         
 
              Claimant has good range of motion and no neurological or 
 
         vascular deficit.
 
         
 
              Claimant's functional impairment of the left foot is "no 
 
         great" or a slight permanent partial impairment.
 
         
 
              A ten percent permanent partial impairment is generally 
 
         considered a moderate impairment.
 
         
 
              Claimant's permanent partial impairment is five percent of 
 
         the left foot.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established an injury of November 4, 1983 which 
 
         arose out of and in the course of his employment.
 
         
 
              Claimant has established a causal relationship between that 
 
         injury and the disability on which he bases his claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his November 3, 1983 injury of five percent of the 
 
         left foot.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant seven point five (7.5) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         forty-four and 10/100 dollars ($244.10) with those benefits to 
 
         commence December 14, 1983.
 
         
 
              Defendants pay accrued amounts in a lump sum and interest 
 
         pursuant to section 85.30.
 
         
 
              Claimant and defendants equally pay costs of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
              Signed and filed this 23rd day of June, 1987.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         CURRY V. FLOYD VALLEY PACKING COMPANY
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         Mr. Harry  Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         632-640 Badgerow Building
 
         SiOux City, Iowa 51102
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     Filed 6-23-87
 
                                                     Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ANDREW CURRY,
 
         
 
              Claimant,
 
         
 
         VS.                                         File No. 751460
 
         
 
         FLOYD VALLEY PACKING COMPANY,            A R B I T R A T I O N
 
         
 
              Employer,                              D E C I S I O N
 
         
 
         and
 
         
 
         ARGONAUT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
         
 
             Claimant awarded 7.5 weeks of permanent partial disability
 
         benefits for 5% permanent partial impairment of left foot.
 
 
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RAYMOND DENNING,
 
        
 
            Claimant,
 
        
 
        vs.                                            File No. 751584
 
        
 
        HYMAN FREIGHTWAYS, INC.,                       A R B I T R A T I 
 
        O N
 
        
 
            Employer,                                 D E C I S I O N
 
        
 
        and
 
                                                    F I L E D
 
        EXCALIBUR INSURANCE CO. by
 
        IOWA INSURANCE GUARANTY INS.               MAY 23 1989
 
        ASSOCIATION,
 
                                               INDUSTRIAL SERVICES
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Raymond 
 
             Denning, claimant, against Hyman Freightways, Inc., employer, and 
 
             Excalibur Insurance Co. by Iowa Insurance Guaranty Association, 
 
             insurance carrier, defendants, for benefits as a result of an 
 
             injury that occurred on November 28, 1983. This is a bifurcated 
 
             proceeding asserting that claimant is entitled to penalty 
 
             benefits under Iowa Code section 86.13. A hearing for all of the 
 
             other issues in the case was held on August 24, 1987, and a 
 
             decision was filed on March 16, 1988, which awarded 5.143 weeks 
 
             of temporary disability benefits at the rate of $408.93 per week 
 
             to claimant in the total amount of $2,103.13 in weekly benefits 
 
             and $1,335.28 in medical benefits . The penalty benefits hearing 
 
             was held in Des Moines, Iowa, on October 13, 1988, and the case 
 
             was fully submitted at the close of the hearing. The record 
 
             consists of the testimony of Renae Herr, legal assistant, 
 
             claimant's exhibits 1 through 18 and defendants' exhibits A 
 
             through K. Official notice is also taken of defendants' exhibit 
 
             A in the earlier hearing, on file nos. 751584 and 834032 [Iowa 
 
             Administrative Procedure Act 17A.14(4)]. Claimant's exhibits 1 
 
             through 6 are the same exhibits as 1 through 6 introduced at the 
 
             earlier hearing and which are a part of that file. Claimant's 
 
             exhibit 7 is a copy of the prior decision dated March 16, 1988, 
 
             which appears in the earlier file. Claimant's exhibits 11 through 
 
             18 are new exhibits which were introduced as new exhibits at the 
 
             time of this hearing.
 
        
 
                                      ISSUE
 
        
 
             The single issue to be decided in this case is whether 
 
             claimant is entitled to penalty benefits pursuant to Iowa Code 
 
             section 86.13 due to a delay in the commencement of benefits 
 
             without reasonable or probable cause or excuse.
 
        
 
                            SUMMARY OF THE EVIDENCE
 
        
 

 
        
 
 
 
 
 
             Of all of the evidence that was introduced, the following is 
 
             a summary of the evidence most pertinent to this decision.
 
        
 
            Claimant injured his back on November 28, 1983, (file no. 
 
        751584) while unloading a trailer and was off work from November 
 
        28, 1983 through May 13, 1985. Claimant was treated by William 
 
        Boulden, M.D., an orthopedic surgeon, for an extruded disc 
 
        fragment at L4-5 on the left and degenerative facet foraminal 
 
        stenosis at L4-5 bilaterally and at L5-Sl (exhibit 1, page 42). 
 
        A bilateral diskectomy and two level decompression was performed 
 
        on February 24, 1984 (ex. 1, pp. 7 & 23). Claimant returned to 
 
        work as a city truck driver and a dock man until August 18, 1986, 
 
        when he saw Dr. Boulden again for left thigh pain down to the 
 
        knee (ex. 1, p. 40).
 
        
 
            An issue arose as to whether the August 18, 1986, pain was a 
 
        continuation of the November 28, 1983, injury or whether it was a 
 
        new injury. Excalibur was the insurance carrier on November 28, 
 
        1983, and Liberty Mutual was the insurance carrier on August 18, 
 
        1986. Excalibur became insolvent in September of 1984 and the 
 
        Iowa Insurance Guaranty Association (IIGA) stepped in for 
 
        Excalibur. Neither carrier, IIGA nor Liberty was willing to 
 
        voluntarily make payments and to bring an action for 
 
        determination of liability under Iowa Code section 85.21.
 
        
 
            The earlier decision in this case, filed March 16, 1988, 
 
        determined that the incident and pain of August 18, 1986, was a 
 
        recurrence, extension, continuation, and further deterioration of 
 
        claimant's foraminal stenosis of November 28, 1983. Claimant 
 
        then brought this action against IIGA to determine whether he was 
 
        entitled to penalty benefits for delay in commencement of 
 
        benefits without reasonable or probable cause or excuse pursuant 
 
        to Iowa Code section 86.13.
 
        
 
            Renae Herr testified that she is a legal assistant for a law 
 
        firm and worked in the capacity of a claims adjuster for the Iowa 
 
        Insurance Guaranty Association in connection with the insolvency 
 
        of Excalibur Insurance Company which occurred in September of 
 
        1984. She handled the claims for the incident of November 28, 
 
        1983, and also the incident of August 18, 1986 (transcript pp. 
 
        24-26).
 
        
 
            Herr testified that beginning in October of 1984, claimant 
 
        began to telephone her. On that occasion he stated that he was 
 
        six months behind on his workers' compensation payments and that 
 
        his last check from Excalibur bounced. Collection agencies were 
 
        calling him. He wanted to know when he would be receiving his 
 
        payments and also an award for 20 percent permanent partial 
 
        disability that Dr..Boulden had mentioned to him. Claimant 
 
        related that the grocery store wanted reimbursed from his wife 
 
        for the check that bounced (tr. pp. 78, 79 L 81). Herr explained 
 
        to claimant that she was handling over 300 claims, she had just 
 
        received these files, forms needed to be filed by claimant and 
 
        that claimant could refer his creditors to her for an explanation 
 
        of the situation. Nevertheless, Herr testified that she 
 
        continued to receive an unusual number of telephone calls from 
 
        claimant (tr. pp. 27-31). No one called her like he did (tr. p. 
 
        79).
 
        
 
             When claimant called on November 9, 1984, he said that he 
 
             appreciated the payments which had started, but he wanted to know 
 
             about his permanent disability. Herr explained that claimant 
 
             could not receive permanent benefits and temporary benefits at 
 
             the same time. She also explained the process involved in order 
 
             to establish entitlement to permanent disability benefits (tr. 
 
             pp. 34 & 35). Nevertheless, Herr received about six more calls 
 

 
        
 
 
 
 
 
             from claimant. There was no other claimant that called as much 
 
             or more times as Raymond Denning (tr. p. 36). Herr continued to 
 
             receive calls from claimant and had to make calls to claimant 
 
             concerning: (l) claimant's return to suitable work with employer, 
 
             (2) vocational rehabilitation assistance from claimant from both 
 
             a private consultant and also from the State of Iowa, (3) 
 
             claimant's permanent partial disability rating, and (4) on one 
 
             occasion because she overpaid claimant $10.
 
        
 
            Claimant received training for clerical work, but when the 
 
        time came, he actually returned to work as a truck driver again 
 
        on May 13, 1985 (tr. pp. 37-52). Although claimant had 
 
        demonstrated a good attitude during vocational rehabilitation 
 
        training, he still wasn't trained sufficiently to do an office 
 
        job for employer (tr. p. 84).
 
        
 
            Claimant started receiving his permanent partial disability 
 
        benefit checks on December 28, 1984, and checks were sent out 
 
        every two weeks. After claimant returned to work in May of 1985, 
 
        Herr did not hear from him again until August of 1986. At that 
 
        time, Herr was told by her secretary, Sherry Simpson, that 
 
        claimant had called, but this undated call was not documented and 
 
        the exact time and date was not recorded. It could not be proven 
 
        when the call was received, but Herr believed it was after 
 
        claimant received his last check and before he saw Dr. Boulden on 
 
        August 18, 1986, as a matter of her own personal opinion (tr. pp. 
 
        76, 77, 87, 88, 112-114). The content of the call was not 
 
        recorded, but Herr understood that claimant wanted to know where 
 
        his money was. Herr said that claimant's last permanent partial 
 
        disability payment check was dated August 6, 1986, and was sent 
 
        out on August 8, 1986. It was for the period from August 2, 1986 
 
        through August 15, 1986. Customarily, the last check is marked 
 
        as final payment. Simpson notified claimant that he had received 
 
        his last check and that it had indicated on it that it was the 
 
        final payment (tr. pp. 51-57).
 
        
 
             At this same approximate time, Herr received information 
 
             from employer that on August 20, 1986, employer received a 
 
             telephone call from claimant. He told employer that he had some 
 
             pain in his legs, had gone to see Dr. Boulden and that he would 
 
             be having a CAT scan on August 21, 1986 (tr. pp. 52 & 53).
 
        
 
            Herr testified that she returned Denning's undocumented call 
 
        in August of 1986 on October 3, 1986. Claimant wanted to know 
 
        where his money was. Herr explained to claimant that she had not 
 
        gotten all of the necessary records yet. Claimant responded that 
 
        he was going to take action. The telephone call on October 3, 
 
        1986, was the first telephone contact that Herr had with Denning 
 
        in 1986 and since she last talked to him in May of 1985.
 
        
 
            By October 3, 1986, claimant was already back to work as of 
 
        September 30, 1986, from the episode that occurred on August 18, 
 
        1986 (tr. pp. 58-62).
 
        
 
            Herr related that by October 3, 1986, she had received Dr. 
 
        Boulden's letter of August 18, 1986. Her date stamp showed that 
 
        it was received on August 26, 1986 (tr. pp. 62 & 63). This letter 
 
        states:
 
        
 
             Follow up of bilateral discectomy and L4-5, 5-51, with two 
 
             level decompression. The patient has done fairly well until 
 
             the last couple of weeks, when he started to develop left 
 
             thigh pain down to the knee. We examined him today and 
 
             found him to have negative straight leg raising and 
 
             neurologically intact. However, because of the previous two 
 
             level decompression disc surgery, I recommended to repeat 
 

 
        
 
 
 
 
 
             the CAT scan to see if there may be some abnormalities going 
 
             on. Therefore this will be set up and I'll check him back in 
 
             one week.
 
             
 
        (ex. J)
 
        
 
             Herr told that she had also received Dr. Boulden's letter 
 
             dated August 26, 1986, on September 2, 1986 (tr. pp. 62 & 63).
 
        
 
             Follow up of left leg recurrent pain. The CAT scan showed a 
 
             possible small fragment of L5-S1 disc pressing on the Sl 
 
             nerve. However his symptoms are anterior thigh, which would 
 
             not correspond with this finding.
 
             
 
             He has foraminal stenosis at L4-5 that had been previously 
 
             corrected, but has now been reformed with continued 
 
             deterioration of his spine. Therefore, I think his symptoms 
 
             are coming from the foraminal stenosis, and I have 
 
             recommended an epidural steroid injection, as well as 
 
             getting off work for two weeks, and see what his symptoms 
 
             do. We will follow him up after that.
 
             
 
        (ex. I)
 
        
 
             Herr said that she had also received Dr. Boulden's letter 
 
             dated September 9, 1986, on September 15, 1986 (tr. p. 63) which 
 
             reads as follows:
 
        
 
             Follow up of foraminal stenosis, L4-5. The patient has 
 
             gotten marked improvement of his pain from the epidural 
 
             steroid injection. He still has some hypesthesias, but no 
 
             pain. Therefore, we will want him to get a little bit more 
 
             active, and we will check him again in two weeks. I am 
 
             concerned about returning him back to an environment where 
 
             he could potentially aggravate this underlying pathology, 
 
             and increase his symptoms again. Therefore, we may have to 
 
             consider some type of work modification to prevent him from 
 
             further aggravating himself.
 
             
 
             Therefore, we will keep you informed of our follow up with 
 
             him.
 
             
 
        (ex. H)
 
        
 
             Herr went on to say that she had also received Dr. Boulden's 
 
             letter dated September 23, 1986, on September 30, 1986 (tr. pp. 
 
             64 & 65) which reads as follows:
 
        
 
             Follow up of foraminal stenosis of L4-5. The patient 
 
             continues to do quite well. He is having minimal symptoms. 
 
             He states that as soon as he starts driving he starts having 
 
             a lot of pain, so it would be my recommendation that the 
 
             pain is usually associated with driving, that he refrain 
 
             from driving again in the future. He feels however, that he 
 
             could handle dock work, and since he says that he has done 
 
             that for many years, he knows how to do it properly, then I 
 
             would be more in favor of returning him back to dock work.
 
             
 
             Therefore, our final conclusion will be that he stop the 
 
             truck driving and return to dock work to see if he could not 
 
             handle that, and be productive.
 
             
 
             Therefore, I will be waiting to hear from the appropriate 
 
             parties concerning this.
 
             
 
        (ex. G)
 

 
        
 
 
 
 
 
             
 
             Herr testified that she interpreted the incident of August 
 
             18, 1986, as a new injury because it was an aggravation from 
 
             driving a truck (tr. p. 66). Herr wrote a lengthy letter to Dr. 
 
             Boulden of October 14, 1986, explaining her suspicion that 
 
             claimant encountered this recent pain of August 18, 1986, after 
 
             he learned that his permanent partial disability benefits had 
 
             terminated. Herr directly asked Dr. Boulden whether the August 
 
             18, 1986, problem was related to claimant's November 28, 1983, 
 
             injury or whether there had been a new and intervening incident 
 
             or aggravation causing the most recent problem (ex. 18). More 
 
             specifically, Herr confronted Dr. Boulden in these words:
 
        
 
                  The Iowa Insurance Guaranty Association's concern at this 
 
                      time is whether Mr. Denning's claimed back problem relates 
 
                      back to his injury of November, 1983, or has there been a 
 
                      new and intervening incident or aggravation causing the most 
 
                      recent problem. The reason for the inquiry is that 
 
                      according to our records, Mr. Denning went back to work in 
 
                      May of 1985 and worked continuously without seeing a 
 
                      physician until August of 1986, which would indicate he had 
 
                      fully recovered from his injury of 11-28-83.
 
             
 
        (ex. 18)
 
        
 
             Dr. Boulden replied to her as follows on October 21, 1986:
 
             
 
             In reference to your letter of October 14, 1986 concerning 
 
             Raymond Denning.
 
             
 
             It is my feeling that the patient's problem at the time we 
 
             saw him in August was further deterioration of his spine 
 
             from the previous surgeries. He was having some more 
 
             foraminal stenosis type pain, which was relieved with the 
 
             epidural steroid injection. Therefore, it is my feeling 
 
             that it was only a temporary aggravation of a pre-existing 
 
             [sic] condition and was related on his first surgery. In no 
 
             way do I feel that he has had any increased permanency.
 
             
 
             If I can be of any further help, please feel free to contact 
 
             me.
 
             
 
        (ex. E)
 
        
 
             Herr then denied this claim on the basis of the October 21, 
 
             1986, letter from Dr. Boulden. She asserted an aggravation of a 
 
             preexisting condition is a new injury. Herr's letter to 
 
             claimant's counsel reads as follows:
 
             
 
                  Enclosed herein is a copy of Dr. Boulden's most recent 
 
                      correspondence to the Iowa Insurance Guaranty Association. 
 
                      As you will note, Dr. Boulden states that Mr. Denning 
 
                      sustained a temporary aggravation of a pre-existing [sic] 
 
                      condition which, accordingly, would be considered a new 
 
                      injury.
 
             
 
                  On the basis of Dr. Boulden's letter of 10-21-86, the 
 
                      Iowa Insurance Guaranty Association is denying 
 
                      responsibility for Mr. Denning's aggravation of August, 
 
                      1986.
 
             
 
             Please feel free to call if you wish to discuss Mr. 
 
             Denning's claim.
 
             
 
        (ex. D)
 
        
 

 
        
 
 
 
 
 
             Herr testified at the hearing that it was her conclusion 
 
             that claimant had an aggravation of a preexisting condition (tr. 
 
             p. 74). Herr said that she then obtained the letter of November 
 
             5, 1986, from Dr. Boulden which she received on November 7, 1986 
 
             (tr. p. 66) which reads as follows:
 
        
 
             In reference to your letter of October 27, 1986 concerning 
 
             Raymond Denning.
 
             
 
             As you have pointed out in your letter, continued truck 
 
             driving could further accelerate the degenerative process in 
 
             Mr. Denning's back. Therefore, this may be one of the 
 
             reasons this has continued to get worse. This also could be 
 
             just a natural developing degeneration from the previous 
 
             surgeries.
 
             
 
             Therefore, it is hard for me to state which one has more 
 
             than the other, but I would say that it was a definite 
 
             contributing factor. If I can be of any further help, 
 
             please feel free to contact me.
 
             
 
        (ex. C)
 
        
 
             Herr testified that she concluded from reading Dr. Boulden's 
 
             reports that there was no objective evidence for claimant's 
 
             subjective complaints of pain (tr. pp. 67-70).
 
        
 
            Herr added that it was her opinion that claimant voluntarily 
 
        took himself out of the work force in late 1986 and voluntarily 
 
        put himself back into the work force on September 30, 1986 (tr. 
 
        p. 71).
 
        
 
            Herr admitted that she had never personally talked to 
 
        claimant himself during this period of time (tr. p. 71).
 
        
 
            Herr further testified that she did take statements as a 
 
        claims adjuster, but admitted that she did not take a statement 
 
        from claimant. She did not see any basis for it on the medical 
 
        she had received. There were no objective findings to support 
 
        claimant's complaints. This occurred right after claimant's last 
 
        check went out. Since she had received a lot of telephone calls 
 
        from claimant she did not take his statement (tr. pp. 89-90). 
 
        This is how Herr explained it:
 
        
 
             Q. Why didn't you take a statement of Mr. Denning?
 
             
 
             A. My initial thought, as I've stated previously, was that 
 
             I didn't see any basis of an injury based on the medical 
 
             that I had received. First of all, I didn't know about it 
 
             for a while, and then when I did receive the information, 
 
             there was no objective findings, and then it happened to be 
 
             coincidence that it was right after his last check was sent 
 
             out to him, and the fact that I had received a lot of phone 
 
             calls from him in the past, I guess I didn't see a basis. I 
 
             didn't see a claim, so I didn't take a statement.
 
             
 
             Q. So you thought Mr. Denning was a fraud, and, therefore, 
 
             you didn't see a basis for his claim. Is that what you are 
 
             telling me?
 
             
 
             A. I'm not saying he's a fraud, no, but I thought there was 
 
             a strong coincidence that his checks ended on one period, 
 
             and he's to the doctor the next week.
 
             
 
             Q. Have you had any training for claims adjusting?
 
             
 

 
        
 
 
 
 
 
             A. No. Just experience. I have gone -- 
 
             
 
             Q. Don't most claims adjusters, whether they think there's 
 
             a legitimate basis or an illegitimate basis for the claim, 
 
             take statements in order to document their file?
 
             
 
             A. I don't think they always do, no.
 
             
 
             Q. Didn't your insured, Mr. Chavez, send you the 
 
             information rather quickly after this alleged incident and 
 
             tell you that Mr. Denning apparently thought or Mr. Chavez 
 
             thought that this was something that you should be 
 
             responsible for?
 
             
 
             A. No.
 
             
 
             Q. Well, didn't he send a letter to you on August 20 of 
 
             1986?
 
             
 
             A. Yes.
 
             
 
             Q. And didn't he give you the information that Mr. Denning 
 
             had given to him?
 
             
 
             A. Yes.
 
             
 
             Q. And didn't you do anything as far as confirming that 
 
             information with Mr; Denning by calling him or taking his 
 
             statement?
 
             
 
             A. I guess because I didn't see a basis because he didn't 
 
             say anything to me or to Sherry Simpson at that time, I 
 
             didn't call him back. I was probably just going to wait for 
 
             the medical to see what they stated.
 
             
 
        (tr. pp. 89-91)
 
        
 
             Herr conceded that she did not investigate the claim at the 
 
             employer's place of business with the employer's representative, 
 
             Joe Chavez:
 
        
 
             Q. You did not talk to Mr. Chavez about the time off work 
 
             and what occurred when Mr. Denning went off work during 
 
             August of 1986. Is that correct.
 
             
 
             A. I would not have talked to him about it because I didn't 
 
             see it as our claim.
 
             
 
             Q. Whose claim did you think it was?
 
             
 
             A. Well, as I explained before, I didn't see any objective 
 
             findings for a claim, but on the information that I had 
 
             received from Hyman Freightways on September 15--well, that 
 
             was sent on September 15, they had filed the supplementary 
 
             record of occupational illnesses and injuries with Liberty 
 
             Mutual, so I was kind of the bystander.
 
             
 
        (tr. p. 92)
 
        
 
             Herr testified that she told Chavez that it was not her 
 
             claim on January 20, 1987. She explained her denial of the claim 
 
             as follows:
 
        
 
                 A. I enclosed medical bills and stated that it was the 
 
             position of the Iowa Insurance Guaranty, the medical 
 
             services rendered for Mr. Denning were not directly related 
 

 
        
 
 
 
 
 
             to Mr. Denning's injury of 11-28 of '83, but, rather, were 
 
             the result of an aggravation of his preexisting condition, 
 
             and according to the laws of Iowa, an aggravation of 
 
             preexisting condition was a new injury, and therefore would 
 
             be the responsibility of the new insurance carrier covering 
 
             Hyman's at the time of the aggravation.
 
        
 
        (tr. pp. 93-94)
 
        
 
             The following colloquy transpired between Herr and 
 
             claimant's counsel:
 
        
 
             Q. In reviewing the medical reports of Dr. Boulden, there 
 
             was nothing in those reports that indicated that the reason 
 
             he was off work was due to any cause other than his work 
 
             activities or a progression of the problems that he had from 
 
             the injury in 1983; is there?
 
             
 
             A. No.
 
             
 
        (tr. pp. 95 & 96)
 
        
 
             Herr also added the following comments:
 
             
 
             A. I didn't see any objective findings at that time and 
 
             again stating his payments were done at one point, and then 
 
             there's a phone call made me suspicious that perhaps it 
 
             wasn't really anything wrong.
 
             
 
             Q. But you did not have any information to refute the 
 
             reports of Dr. Boulden; did you?
 
             
 
             A. Just my experience working with Mr. Denning.
 
             
 
             Q. And in your experience working with Mr. Denning, there 
 
             was nothing to indicate that he was manipulating Dr. Boulden 
 
             in order for him to be off work; is there?
 
             
 
             A. I think that, yes, he did manipulate somewhat in that 
 
             first he couldn't work as a truck driver, and then he goes 
 
             back to the doctor and says, yes, I can be a truck driver. 
 
             It just seemed like he controlled the situation as to 
 
             whether he wanted to work or not.
 
             
 
        (tr. pp. 96 & 97)
 
        
 
             Herr admitted that she did not talk to David Sterr, claims 
 
             adjuster, who investigated the claim for Liberty Mutual in order 
 
             to ascertain what his position on the claim was and why (tr. pp. 
 
             98 & 99).
 
        
 
            Herr had no explanation of why the check for the decision 
 
        filed on March 16, 1988, was not sent out until May 6, 1988, 
 
        because she was not working the file at that time (ex. 8; tr. p 
 
        99).
 
        
 
            Herr testified that she did all of the adjusting herself, 
 
        but that defendants' attorney was her supervisor on all of the 
 
        Excalibur files (tr. p. 101).
 
        
 
             Herr admitted that she and defendants' counsel met with Dr. 
 
             Boulden on this matter, but she did not make a record of this 
 
             meeting and put it in her file. She could not recall if it was 
 
             before or after her letter of October 14, 1986, to Dr. Boulden 
 
             (tr. p. 102). Herr testified that it was her opinion that an 
 
             aggravation of a preexisting condition is a new injury under the 
 

 
        
 
 
 
 
 
             laws of the State of Iowa and that is what she told Chavez, 
 
             employer's representative, on January 20, 1987 (ex. 17).
 
        
 
            Herr acknowledged that in her letter to Dr. Boulden on 
 
        October 14, 1986, she let Dr. Boulden know of her suspicions that 
 
        claimant incurred leg pain after he learned that his permanent 
 
        partial disability benefits had stopped, but nevertheless, Dr. 
 
        Boulden did not affirm her position in his subsequent report on 
 
        October 21, 1986, and November 5, 1986 (ex. E; ex. 18; tr. pp. 
 
        110 & 111 ) .
 
        
 
            Herr could not explain why Dr. Boulden gave claimant a 
 
        spinal injection if he did not have some objective findings for 
 
        claimant's pain (tr. pp. 111 & 112).
 
        
 
            Herr had no record of the telephone call from claimant in 
 
        August of 1986. She assumed claimant made no mention of new pain 
 
        at that time, because if Sherry Simpson had told her that there 
 
        was pain, she would have contacted claimant immediately. Herr 
 
        admitted that when she did learn of an injury, she chose to deal 
 
        with Dr. Boulden rather than talk to claimant himself or to take 
 
        a statement from claimant (tr. pp. 113-116).
 
        
 
            Sherry Simpson was in the court room but did not testify as 
 
        to what claimant said when he called their office in August of 
 
        1986.
 
        
 
            Herr gave the further insight into her thinking in these 
 
        words:
 
        
 
             Q. You indicated you thought that Mr. Denning, I believe in 
 
             response to a question by Mr. Hanssen, that Mr. Denning was 
 
             attempting to manipulate the doctor.?
 
             
 
             A. That was my feeling, yes.
 
             
 
             Q. And what did you mean by that?
 
             
 
             A. Well, when I took the file over in September of '84, 
 
             whenever I received it, it may have been October. He stated 
 
             that he could not go back to work. Rehab. was involved. 
 
             Independent rehab. was involved, voc. rehab. was involved. 
 
             Everyone was working together to get him to be able to get a 
 
             position to return to work retraining, and then he decided 
 
             to go back to work in the same position that he was, and in 
 
             order to do so, got the doctor to release him to full work. 
 
             And it's the same type of thing I saw again in August of '86 
 
             where he went to the doctor, and he was off work, and then 
 
             first was going to be back to dock work only, and he changed 
 
             that because he was tired of being at home and wanted to 
 
             work full time back to the same position he was, and got 
 
             that from the doctor, and then went back to work again.
 
             
 
             Q. Dr. Boulden's permission to return to work as a truck 
 
             driver in 1985 in May as well as in September 30 of 1986 
 
             were both in response to requests from Mr. Denning for that 
 
             type of authorization?
 
             
 
             A. Yes. It was my understanding.
 
             
 
        (tr. pp. 117 & 118)
 
        
 
             Along this same line, Herr testified as follows:
 
             
 
                  Q. Why is it easier for a patient to manipulate a 
 
                      doctor?
 

 
        
 
 
 
 
 
             
 
                  A. I think a doctor is more apt to -- one time that I 
 
                      had talked to Dr. Boulden's office in regards to returning 
 
                      to dock work only, and not to truck driving, I believe his 
 
                      secretary told me, "We can only base our findings on what 
 
                      the patient tells us," and I guess that's what a doctor 
 
                      bases a lot of his findings on. If it's not objective, it's 
 
                      subjective or based on what the patient tells him what he 
 
                      can and can't do.
 
             
 
                  Q. And in Mr. Denning's case, within the space of a 
 
                      month or a month and a half in August and September of 1986, 
 
                      he first told the doctor that he can't do something, and 
 
                      then later tells him that he can. Is that what you're 
 
                      saying?
 
             
 
                  A. It appears that way.
 
             
 
        (tr. pp. 119 & 120)
 
        
 
             This line of questioning continued in the follow vein:
 
             
 
                  Q. That's not unusual; is it? Many people go off work 
 
                      because they can't do something, and then they have a 
 
                      healing period, and they recuperate, and they go back to 
 
                      doing what they were doing before. Is that unusual?
 
             
 
                  A. In this case, I thought it was unusual because it 
 
                      just happened to be when he got done with his permanent 
 
                      disability payments without -- he worked a year and a half, 
 
                      never contacted us from May 5 of '85, and then after he 
 
                      called and wanted his check, the next week he was going to 
 
                      the doctor, and subsequently off work, and then back to work 
 
                      at the same job he was at before, so in this case, I think 
 
                      it's unusual.
 
             
 
                  Q. But that unusualness for which you are using to deny 
 
                      the claim was neither expressed to me nor was it expressed 
 
                      to your insured; was it?
 
                  
 
                  A. Yes. It was discussed with Mr. Chavez.
 
                  
 
                  Q. It wasn't in your letter to him January 30 of 1987; 
 
                      was it?
 
                  
 
                  A. Not everything is put in writing.
 
             
 
        (tr. pp. 120 & 121)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Iowa Code section 85.3(1) provides that employers shall pay 
 
             compensation for all injuries which arise out of and in the 
 
             course of employment. The time for payment is specified in 
 
             sections 85.33 and 85.34. Iowa Code section 87.1 requires 
 
             employers to insure their liability, but the law places the 
 
             primary liability for payment on the employer. A dispute between 
 
             an employer's insurance carriers does not justify a delay or 
 
             denial of benefits when the benefits are clearly due from the 
 
             employer. Section 85.21 exists to provide a means of providing 
 
             prompt payments when the only issue is which of two insurance 
 
             carriers is liable for making the payments. Any failure to pay 
 
             is per se unreasonable if the only dispute is which of the 
 
             employer's two insurance carriers is liable. The law places 
 
             direct liability on the employer to make prompt payments in order 
 
             to prevent the hardships that befall an employee when payments 
 

 
        
 
 
 
 
 
             are delayed.
 
        
 
             The fourth unnumbered paragraph of Iowa Code section 86.13 
 
             provides as follows:
 
        
 
                  If a delay in commencement or termination of benefits 
 
                      occurs without reasonable or probable cause or excuse, the 
 
                      industrial commissioner shall award benefits in addition to 
 
                      those benefits payable under this chapter, or chapter 85, 
 
                      85A, or 85B, up to fifty percent of the amount of benefits 
 
                      that were unreasonably delayed or denied.
 
        
 
             Claimant did sustain the burden of proof by a preponderance 
 
             of the evidence that defendants delayed and denied temporary 
 
             disability benefits for the episode of August 18, 1989, without 
 
             reasonable or probable cause or excuse. From reading the quoted 
 
             portions of Herr's testimony, it is apparent that she made her 
 
             denial of the claim based on her own personal suspicions, 
 
             motives, and prejudices rather than on factual information 
 
             obtained and developed after a complete investigation based upon 
 
             all available information. Also, Herr refused to accept Dr. 
 
             Boulden's reports as written and endeavored to obtain new reports 
 
             that would justify her denial of the claim. Herr erroneously 
 
             contended that an aggravation of a preexisting condition always 
 
             equates to a new injury under Iowa law. Neither Herr nor her 
 
             attorney submitted any legal authorities in support of this 
 
             proposition that an aggravation of a preexisting condition is 
 
             automatically, per se, and ipso facto a new injury under Iowa 
 
             Law.
 
             
 
             Herr also appeared to rely on the proposition that if there 
 
             are no objective findings to support subjective complaints of 
 
             pain then there is no real injury. It is true that objective 
 
             findings do confirm subjective complaints of pain. However, 
 
             numerous injuries and illnesses are real injuries and real 
 
             illnesses even though the medical profession cannot confirm that 
 
             patient's complaints by objective findings. In fact, the primary 
 
             challenge of the medical profession seems to be to try to 
 
             accurately diagnose and treat subjective complaints of pain. It 
 
             is helpful when objective findings establish or confirm a 
 
             clinical diagnosis. Nevertheless, doctors frequently are forced 
 
             to treat subjective symptoms without objective findings as Dr. 
 
             Boulden did here by removing claimant from work for two weeks and 
 
             administering a steroid injection. In addition, there was an 
 
             objective finding in this case. Foraminal stenosis was first 
 
             diagnosed at the time of the injury on November 28, 1983, and Dr. 
 
             Boulden continued to treat foraminal stenosis, confirmed by CAT 
 
             scan, after the flare-up of claimant's condition of August 18, 
 
             1986.
 
             
 
             Penalty benefits are not imposed where there are legitimate 
 
             disputes on causation or the extent of impairment. Just vs. 
 
             HyGrade Food Products Corp., IV Iowa Industrial Commissioner 
 
             Reports 190 (appeal decision January 31, 1984). In this case, 
 
             Dr. Boulden is the only doctor who treated both the injury of 
 
             November 28, 1983 and the flare-up on August 18, 1986. Therefore, 
 
             there is no dispute as to causation or the extent of disability 
 
             between competing doctors opinions.
 
             
 
             Dr. Boulden clearly related the incident of August 18, 1986, 
 
             to the injury of November 28, 1983, several times. In fact, he 
 
             said so in practically every report that he wrote. Dr. Boulden 
 
             never did state or imply that a new injury occurred on August 18, 
 
             1986. Herr offered Dr. Boulden the golden opportunity to find a 
 
             new injury had occurred by her letter of October 14, 1986. To 
 
             reinforce this letter, she and defense counsel also had a 
 

 
        
 
 
 
 
 
             personal conference with Dr; Boulden. Nevertheless, Dr. Boulden 
 
             declined the opportunity in his reply letter of October 21, 1986. 
 
             On the contrary, he clearly stated:
 
        
 
                  "It is my feeling that the patient's problem at the time 
 
                      we saw him in August was further deterioration of his spine 
 
                      from the previous surgeries. He was having some more 
 
                      foraminal stenosis type pain, which was relieved with the 
 
                      epidural steroid injection Therefore, it is my feeling that 
 
                      it was only a temporary aggravation of a preexisting [sic] 
 
                      condition and was related on his first surgery." (ex. E).
 
             
 
             How could Dr. Boulden have been more clear particularly 
 
             considering that Herr had asked him to distinguish between the 
 
             first injury or a new injury?
 
        
 
            A review of Dr. Boulden's reports are as follows. This 
 
        review demonstrates that Dr. Boulden related the episode of 
 
        August 18, 1986, to the injury of November 28, 1983 and he gave 
 
        no suggestion or indication that he was treating a new injury.
 
        
 
            Letter of August 18, 1986. Dr. Boulden said he was treating 
 
        a "Follow-up [sic] of bilateral discectomy [sic] and L4-5, 5-S1, 
 
        with two level decompression. ...because of the previous two 
 
        level decompression disc surgery, I recommended to repeat the CAT 
 
        scan to see if there may be some abnormalities going on." (ex. 
 
        J). There is no indication of a new injury in these remarks; on 
 
        the contrary, he clearly states that he is following up on the 
 
        former injury and surgery.
 
        
 
            Letter of August 26, 1986: Dr. Boulden was extremely clear 
 
        by stating that claimant: "... has foraminal stenosis at L4-5 
 
        that had been previously corrected, but has now been reformed 
 
        with continued deterioration of his spine". Dr. Boulden stated 
 
        that the symptoms were coming from the foraminal stenosis and he 
 
        recommended a steroid injection and two weeks off of work (ex. 
 
        I). There is no indication or suggestion of a new injury in this 
 
        report.
 
        
 
            Letter of September 9, 1986: Dr. Boulden said: "Follow-up 
 
        [sic] of foraminal stenosis, L4-5." (ex. H). Foraminal stenosis 
 
        is the original diagnosis for the injury of November 28, 1983. 
 
        Dr. Boulden made no suggestion of a new injury on August 18, 
 
        1986.
 
        
 
            Letter of September 23, 1986: Dr. Boulden said: "Follow-up 
 
        [sic] of foraminal stenosis of L4-5." (ex. G). He did not talk 
 
        of a new injury on August 18, 1986.
 
        
 
             On October 14, 1986, Herr told.Dr. Boulden of her suspicions 
 
             and flatly asked Dr. Boulden if this treatment related to the 
 
             November 28, 1983 injury or whether it was a new intervening 
 
             incident or aggravation (ex. 18). Dr. Boulden replied on October 
 
             21, 1986, that it was his feeling that the patient's problem in 
 
             August of 1986 was further deterioration of his spine from the 
 
             previous surgeries. Was this not a rejection of Herr's theory of 
 
             a new injury or a intervening incident or aggravation?
 
        
 
            Reading Dr. Boulden's reports above in a simple, plain and 
 
        straight forward manner, there are no ambiguities or 
 
        inconsistencies in these reports. Willis v. Ruan Transportation 
 
        Corp, IV Iowa Industrial Commissioner Reports 395, 396 (filed 
 
        March 15, 1984). Defendants' counsel asked Herr the following 
 
        question and received the following answer:
 
        
 
                  Q. In reviewing the medical reports of Dr. Boulden, 
 

 
        
 
 
 
 
 
                      there was nothing in those reports that indicated that the 
 
                      reason he was off work was due to any cause other than his 
 
                      work activities or a progression of the problems that he had 
 
                      from the injury in 1983; is there?
 
             
 
             A. No.
 
             
 
        (tr. pp. 95 & 96)
 
        
 
             Therefore, Herr's denial letter to claimant's counsel on 
 
             October 30, 1986, on the basis of the unproven legal principle of 
 
             Iowa law that a temporary aggravation of a preexisting condition 
 
             is a new injury, is without merit and constitutes an unreasonable 
 
             denial and delay without probable cause of excuse of this 
 
             claimant's claim for a few weeks of temporary disability benefits 
 
             based upon the evidence in this record (ex. E).
 
        
 
            Even after Dr. Boulden had specifically answered Herr's 
 
        question on whether a new injury occurred or not, Herr continued 
 
        to try to support her theory of a new injury without success. 
 
        She wrote to Dr. Boulden again on October 27, 1986, and received 
 
        a reply from Dr. Boulden on November 5, 1986. Dr. Boulden said 
 
        that truck driving was a factor in the episode of August 18, 
 
        1986, but so was the natural developing degeneration from the 
 
        previous surgeries (ex. C). The injury of November 28, 1983, 
 
        need not be the sole cause of claimant's condition. It need only 
 
        be a substantial factor, or one cause. It does not have to be 
 
        the only cause. Blacksmith vs. All-American, Inc., 290 N.W.2d 
 
        348, 354 (Iowa 1980).
 
        
 
             Iowa Code 86.13 allows for penalty benefits where delay in 
 
             commencement of benefits occurs without reasonable or probable 
 
             cause or excuse. To determine whether or not defendants actions 
 
             in withholding payments was reasonable, inquiry is first made 
 
             into whether this claim was properly investigated. Conrad vs. 
 
             Matt Parrott and Sons, file number 827150 (filed March 28, 1988).
 
             
 
             Herr admitted in the quoted comments from her testimony 
 
             above that she did not take a statement from claimant, that she 
 
             did not take a statement from Chavez, employer's representative, 
 
             that she did not take any statements from claimant's work 
 
             associates, and that she did not contact Sterr at Liberty Mutual 
 
             to ascertain what his investigation revealed, because she had 
 
             already determined that claimant did not have a legitimate claim. 
 
             She made this determination because: (l) he frequently called to 
 
             ask where his money was; (2) he was demanding; (3) she suspected 
 
             claimant did not have a true claim because the episode of August 
 
             18, 1986, occurred, in her opinion, after claimant learned that 
 
             his permanent disability benefits had ended; (4) because claimant 
 
             had only subjective complaints of pain in her opinion and 
 
             subjective complaints of pain without objective findings do not 
 
             establish an injury; (5) because she believed that an aggravation 
 
             of a preexisting condition was a new injury under Iowa workers' 
 
             compensation law; (6) because she thought that she was a 
 
             bystander to this claim; and (7) because she believed that 
 
             claimant had manipulated Dr. Boulden.
 
        
 
            Herr testified that in her opinion, the undated and 
 
        undocumented call from claimant in August of 1986 asking where 
 
        his money was, was received after he got his last check and 
 
        before he saw Dr. Boulden on August 18, 1986. It should be noted 
 
        that Herr testified that the permanent partial disability benefit 
 
        checks were sent out every two weeks. The last check was dated 
 
        August 6, 1986, and was sent out on August 8, 1986. At the 
 
        earliest, claimant would have received the last check the 
 
        following day, Saturday, August 9, 1986. If there would have 
 

 
        
 
 
 
 
 
        been another check and if it would have been dated exactly two 
 
        weeks later, on August 20, 1986, and if it had been sent out on 
 
        August 20, 1986, claimant would not have received it until the 
 
        following day on August 21, 1986. Therefore, it appears that 
 
        August 21, 1986, would have been the first and earliest date that 
 
        claimant would have realized that he did not get the next check. 
 
        August 21, 1986, would have been three days after he went to the 
 
        doctor on August 18, 1986. Therefore, it is entirely possible 
 
        that claimant went to the doctor before he realized that his 
 
        checks had quit coming.
 
        
 
            Investigation wise, claimant stated in his interrogatories 
 
        on February 25, 1987, that he told Al Katoaka on August 18, 1986, 
 
        that his back was bothering him and that he was going to see the 
 
        doctor (ex. A, p. 7). There is no evidence that a contact was 
 
        made with Al Katoaka in order to investigate this claim or to 
 
        take a statement from him.
 
        
 
            Chapter 507B, Code of Iowa, entitled "Insurance Trade 
 
        Practices", section 507B.4 entitled "Unfair methods of 
 
        competition and unfair or deceptive acts or practices defined" at 
 
        paragraph 9, entitled Unfair claim settlement practices", 
 
        indicates at paragraph d, that refusing to pay claims without 
 
        conducting a reasonable investigation based upon all available 
 
        information is an unfair claim settlement practice if it is 
 
        performed with such frequency as to indicate it is a general 
 
        business practice. There is no indication of a general business 
 
        practice of IIGA in this record, but there is evidence that this 
 
        particular claim received very little or no investigation at all. 
 
        Herr did not take statements or make any documented investigation 
 
        with claimant, employer (Chavez) or claimant's work associates 
 
        (Katoaka).
 
        
 
             If Herr had taken a statement from claimant she might have 
 
             learned his testimony at the earlier hearing: (l) that his pain 
 
             felt like it was related to the November 28, 1983, injury; (2) 
 
             that he had the same symptoms and the same pain; (3) that Dr. 
 
             Boulden had told him it was from the injury of November 28, 1983; 
 
             and (4) that even after he returned to work on October 1, 1986, 
 
             he continued to have pain that felt like the pain he had after 
 
             November 28, 1983 (decision March 16, 1988, p. 7).
 
        
 
            If Herr had talked to Sterr she might have learned what he 
 
        testified to at the earlier hearing: (l) that Sterr had taken a 
 
        statement from claimant; (2) that claimant did not experience a 
 
        new incident or event in August of 1986, (3) that claimant felt 
 
        his pain was due to day-to-day activities; and (4) that Sterr 
 
        interpreted Dr. Boulden's reports of August 18, 1986 and August 
 
        26, 1986, to say that claimant's problem was a continuation of 
 
        the earlier foraminal stenosis (decision March 16, 1988, p. 8).
 
        
 
            Therefore,it is determined that defendants not only wrongly 
 
        denied benefits in this case, but their denial was unreasonable 
 
        and without probable cause or excuse. Curtis vs. Swift 
 
        Independent Packing, IV Iowa Industrial Commissioner Reports 88, 
 
        93 (filed February 21, 1984?.
 
        
 
            In the decision of Deputy Industrial Deborah A. Dubik in 
 
        Conrad, she commented that defendants actions have caused 
 
        claimant to go without income and forced claimant to retain 
 
        counsel to secure what was rightfully due to claimant. This same 
 
        statement applies to this particular case.
 
        
 
            In the decision of Seydel vs. U. of I., Physical Plant, file 
 
        number 818849, filed February 26, 1988, Deputy Industrial 
 
        Commissioner Larry P. Walshire stated that given the relative 
 

 
        
 
 
 
 
 
        small amount of the claim, the defendants position is even more 
 
        untenable. That same statement also applies to the facts of this 
 
        particular case.
 
        
 
            Even if the incident was a new injury which arose out of and 
 
        in the course of employment, the employer was still legally 
 
        liable to make prompt payment. Any dispute between the insurance 
 
        carrier does not justify a delay in making payments.
 
        
 
             In conclusion, it is determined that claimant was 
 
             unreasonably denied benefits without probable cause or excuse and 
 
             that the denial in this case was not based upon a complete 
 
             investigation of all available evidence.
 
        
 
            Claimant is not entitled to an award for penalty benefits 
 
        under Iowa Code section 86.13, simply because neither carrier 
 
        voluntarily paid the claim and brought an action for recovery 
 
        under Iowa Code section 85.21. Iowa Code section 85.21 is 
 
        voluntary and permissive. It is not mandatory or obligatory upon 
 
        insurance carriers. It is a means by which they can avoid 
 
        penalties. Failure to use Iowa Code section 85.21 cannot 
 
        independently be the basis for the imposition of a penalty under 
 
        Iowa Code section 86.13. Imposition depends upon the 
 
        reasonableness of the delay or denial. The penalty is imposed 
 
        upon the employer and is to be paid by the carrier responsible 
 
        for the regular benefits.
 
        
 
            The original award was for 5.143 weeks of temporary 
 
        disability benefits at the rate of $408.93. Iowa Code section 
 
        86.13 states that claimant is entitled to up to 50 percent of the 
 
        amount of benefits that were unreasonably delayed or denied. 
 
        Based upon the evidence summarized in the analysis above, it is 
 
        determined that claimant is entitled to the entire 50 percent of 
 
        additional benefits based upon the evidence presented in this 
 
        case. Therefore, claimant is entitled to the maximum penalty 
 
        benefit of an additional 5.143 weeks of temporary disability 
 
        benefits at the rate of $204.47 per week.
 
        
 
            Claimant is not entitled to an award of penalty benefits 
 
        based upon the unreasonable delay or denial of medical benefits 
 
        which were awarded in the prior decision. Klein vs. Furnas Elec. 
 
        Co., 384 N.W.2nd 370, 375 (Iowa 1986); Zahn vs. Iowa State Mens' 
 
        Reformatory, IV Iowa Industrial Commissioner Reports 409 (filed 
 
        July 22, 1983).
 
        
 
            Neither Iowa Code section 85.30 nor 86.13 specifically 
 
        provide for interest on penalty benefits. However, Iowa Code 
 
        section 85.30 does provide for interest on compensation payments 
 
        which are not paid when due. A penalty benefit is a weekly 
 
        workers' compensation benefit as distinguished from other types 
 
        of benefits provided for in the workers' compensation law. 
 
        Penalty benefits are due on the date of the decision which awards 
 
        them. Betts vs. Alexander Manufacturing Co., file no. 804631 
 
        (filed February 29, 1988). The commencement date for interest on 
 
        the penalty benefits should be the date of the award of penalty 
 
        benefits based upon the rationale in the decision of Bousfield 
 
        vs. Sisters of Mercy, 249 Iowa 64, 72 86 N.W.2d 109 114 (1957). 
 
        Therefore, defendants are ordered to pay interest on the penalty 
 
        benefits as of the date of this decision.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based upon the evidence presented, the following 
 
             findings of fact are made.
 
        
 
            That defendants failed to make a reasonable investigation 
 

 
        
 
 
 
 
 
        based upon all available information in order to determine 
 
        claimant's entitlement to temporary disability benefits as a 
 
        result of the recurrence, extension, continuation and further 
 
        deterioration from the injury of November 28, 1983, which 
 
        occurred on August 18, 1986.
 
        
 
            That defendants' investigator relied on several incorrect, 
 
        erroneous and improper reasons for denying claimant's benefits.
 
        
 
            That defendants unreasonably denied this claim without 
 
        probable cause or excuse.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Wherefore, based upon the evidence presented and the 
 
             foregoing principles of law, the following conclusions of law are 
 
             made.
 
        
 
            That claimant is entitled to penalty benefits under Iowa 
 
        Code section 86.13 for the unreasonable denial of weekly 
 
        benefits.
 
        
 
            That claimant is not entitled to penalty benefits based upon 
 
        the proposition that neither carrier volunteered to pay benefits 
 
        and initiate an action under Iowa Code section 85.21.
 
        
 
            That claimant is not entitled to penalty benefits based upon 
 
        medical payments which were unreasonably denied.
 
        
 
            That claimant is entitled to interest on penalty benefits 
 
        under Iowa Code section 85.30 commencing on the date of this 
 
        decision.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, IT IS ORDERED:
 
        
 
            That defendants pay to claimant five point one four three 
 
        (5.143) weeks of penalty benefits at the rate of two hundred four 
 
        and 47/100 dollars ($204.47) per week for the period from August 
 
        27, 1986 to October 1, 1986, in the total amount of one thousand 
 
        fifty-one and 59/100 dollars ($1,051.59) commencing on the date 
 
        of this decision.
 
        
 
            That defendants are to pay this amount in a lump sum.
 
        
 
            That interest will accrue pursuant to Iowa Code section 
 
        85.30 as of the date of this decision.
 
        
 
             That defendants pay the costs Of this proceeding, including 
 
             the cost of the transcript,.pursuant to Division of Industrial 
 
             Services Rule 343-4.33.
 
        
 
            That defendants file claim activity reports as requested by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1.
 
        
 
            Signed and filed this 23rd day of May, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                     WALTER R. McMANUS, JR. 
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 

 
        
 
 
 
 
 
        
 
        Copies to:
 
        
 
        Mr. Dennis Hanssen
 
        Attorney at Law
 
        Terrace Center, STE 111
 
        2700 Grand Ave
 
        Des Moines, IA 50312
 
        
 
        Mr. Cecil Geottsch
 
        Attorney at Law
 
        1100 Des Moines Bldg
 
        Des Moines, IA 50309-2464