BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         WILLIAM LLOYD TUTTLE,
 
         
 
             Claimant,
 
                                                 File No. 780967
 
         VS.
 
         
 
         STANNARDS, INC.,
 
                                               A R B I T R A T I 0 N
 
             Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         FARMERS INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         William Lloyd Tuttle, against his employer, Stannards, Inc., and 
 
         its insurance carrier, Farmers Insurance Group, to recover 
 
         benefits under the Iowa Workers' Compensation Act, as a result of 
 
         an injury sustained June 12, 1984.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner in 
 
         Burlington, Iowa, on March 17, 1987.  The record was considered 
 
         fully submitted at close of hearing but for briefs.  A first 
 
         report of injury was filed November 19, 1984.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, and of David B. Dutman, as well as of joint exhibit 1 
 
         and claimant's exhibits 2 through 6. Joint exhibit 1 is medical 
 
         records and reports relating to claimant's injury of June 12, 
 
         1984.  Claimant's exhibit 2 is income tax returns of claimant.  
 
         Claimant's exhibit 3 is receipts for over-the-road expenses.  
 
         Claimant's exhibit 4 is claimant's transcript of grades received 
 
         at Kirkwood Community College.  Claimant's exhibit 5 is the 
 
         deposition of David Booth taken February 25, 1987.  Claimant's 
 
         exhibit 6 is the deposition of William R. Pontarelli, M.D., taken 
 
         February 25, 1987.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant received an injury which arose out of and in the 
 
         course of his employment on June 12, 1984, and that that injury
 
         
 
         
 
         was causally related to claimant's claimed disability.  They 
 
         further stipulated that claimant's healing period benefit 
 
         entitlement terminated August 16, 1985.  The parties indicated 
 
         that the issues remaining are whether claimant is entitled to 
 
         permanent partial disability benefits, the extent of any such 
 
         entitlement, and claimant's rate of weekly compensation in the 
 

 
         event of an award.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that his is unmarried but has a child, 
 
         born October 1, 1984,for whom he must make child support 
 
         payments.  Claimant graduated from high school in 1972 and gave a 
 
         work history as a fishing guide, a restaurant cook, a factory 
 
         worker, and a free standing fireplace builder prior to beginning 
 
         work with Stannards in August 1979.  Claimant's factory work 
 
         largely involved shipping and palletizing, but some quality 
 
         control.  In building free standing fireplaces, claimant worked 
 
         at cutting metal, grinding, welding, and painting, as well as 
 
         shipping the product.  At Stannards, claimant initially worked as 
 
         a laborer helping another trucker, but subsequently drove his own 
 
         van, moving household furniture throughout the United States.  
 
         This involved loading the furniture on the van, driving the van 
 
         to the destination and unloading there.  Claimant was on the road 
 
         approximately twenty-five days each month.  He hired other 
 
         persons to help him and paid them from his gross receipts.  He 
 
         reported that he was not required to stay in motels, but 
 
         preferred to do so.  Claimant ate meals while on the road.  He 
 
         was not reimbursed for either his motel costs or his meal costs.  
 
         Claimant's 1984 1099-MISC with Stannards, Inc., reflects 
 
         nonemployee compensation of $35,565.60. Claimant's 1984 income 
 
         tax return Schedule C, Profit or [Loss] From Business or 
 
         Profession, reflects total business deductions of $15,743 with a 
 
         net profit of $19,823.  Deductions were as follows: bank service 
 
         charges $189; utilities and telephone, $1,272; wages, $7,823; 
 
         food and motels, etc., $4,613; claims, $1,356; postage, $2; and 
 
         packaging material, $488.
 
         
 
              David E. Booth, Jr., testified that he is the accountant for 
 
         Stannards, Inc.  He identified Booth deposition exhibit 1 as 
 
         showing claimant's accrual and cash amounts in the thirteen weeks 
 
         prior to September 5, 1984.  The deposition actually records 
 
         accrual and cash amounts from June 14, 1984 through September 12, 
 
         1984.  Total accrual during that period equalled $15,279.63. Cash 
 
         amounts were $15,885.61. Booth identified Booth exhibit 2 as 
 
         claimant's accrual and cash amounts in the thirteen weeks prior 
 
         to June 12, 1986.  The exhibit actually reflects accruals and 
 
         cash from March 14, 1984 through June 12, 1984.  Accrual amounts 
 
         were $9,863.15. Cash outlays were $10,915.25. Accrual amounts 
 
         represent the actual income claimant earned during a week.  
 
         Accrual amounts are not paid during the week earned, but are paid 
 
         after Stannards receives the accrued
 
         
 
         
 
         commission amounts from Bekin Van Lines.  Cash amounts represent 
 
         monies advanced claimant to permit him to operate his truck.  
 
         Claimant's accrual amount represents 36 percent of the net line 
 
         haul on any run made.  Claimant apparently was also paid for an 
 
         item called accessorial services.  Apparently, both types of 
 
         payments are reflected in the accrual amounts.  Mr. Booth 
 
         testified that claimant's workers' compensation taxable wage was 
 
         calculated by multiplying the gross amount claimant received, 
 
         apparently the accrual amount, by 33 percent.  Hence, the gross 
 
         earnings were considered to be 33 percent of the accrual amount. 
 
          Claimant identified exhibit 3 as his expenses in the thirteen 
 
         weeks immediately prior to his injury.  The exhibit,indicates 
 
         labor amount of $2,565.00; food amounts of $785.49; and motel 
 
         expenses of $187.31, for a total of $3,537.80.
 
         
 
              Claimant testified that he was in above average physical 
 
         condition prior to June 12, 1984 and had had no other back 
 

 
         
 
         
 
         
 
         TUTTLE V. STANNARDS INC.
 
         Page   3
 
         
 
         
 
         injuries.  He admitted he had injured his knee in a motorcycle 
 
         accident in Fall 1979.  Claimant reported his work injury 
 
         occurred as he was loading a car for shipment from California to 
 
         Oregon.  He stated that as he was putting up a walk board, he 
 
         leaned over and had a catch in his back.  He subsequently saw a 
 
         Dr. Miller, a general practitioner, who referred him to Webster 
 
         B. Gelman, M.D. Dr. Gelman performed a laminotomy with removal of 
 
         a central herniated disc, L4-5, on the left on December 14, 1984.  
 
         Claimant subsequently saw William R. Pontarelli, M.D., for 
 
         follow-up care.  Dr. Pontarelli released claimant to return to 
 
         work in August 1985, but advised him not to return to furniture 
 
         loading or long distance driving and to limit his lifting to 20 
 
         pounds.  The employer has not offered claimant work.
 
         
 
              Claimant is currently enrolled in a food service management 
 
         program at Kirkwood Community College.  Claimant reported that he 
 
         started college in Fall 1985 in a premedical program, but 
 
         switched to the food service management program after he had 
 
         difficulties with the medical program.  Claimant's grades and 
 
         classes completed reflect approximately a 3.5 grade point average 
 
         on a base of 4:00.  Claimant's food service management program is 
 
         a two year course.  Following completion of the course, claimant 
 
         will either be able to work as a food service manager, that is, a 
 
         restaurant operator, or as a chef.  Claimant opined that a 
 
         restaurant manager would earn from $9,000 to $15,000 per year 
 
         whereas a chef could earn anything from minimum wage to $15,000 
 
         per year.
 
         
 
              Claimant testified he has considerable back pain which 
 
         physically limits what he can do.  Claimant reported taking 1600 
 
         mg. of Motrin most days, and stated that he cannot snow or water 
 
         ski or back pack or do Twaekuondo.  He reported he can only play 
 
         one or two games of pool per day and cannot ride his motorcycle 
 
         as he used to.  Claimant reported that a job as a chef could 
 
         involve heavy lifting and might involve standing for long
 
         
 
         periods of time.  He says he does not know if he could do this.  
 
         He opined he could handle the job of restaurant manager, however. 
 
          Claimant has gained forty pounds since his injury date.  
 
         Claimant stated that Dr. Pontarelli did not believe this was a 
 
         significant factor in claimant's back pain, however.  Claimant 
 
         has been diagnosed as manic-depressive.  Claimant stated 
 
         medication controls his condition and that his manic-depression 
 
         neither affects his work nor his school.  At times, he gets 
 
         nervous, however.
 
         
 
              Claimant testified that since his injury he has applied for 
 
         work as a restaurant cook, but did not receive that job.  He also 
 
         applied for work as a "job coach" at Goodwill Industries.  There, 
 
         he was one of forty applicants and was told he did not have 
 
         enough experience working with the handicapped.  The company 
 
         offering the cooking job went bankrupt within a week of his 
 
         application.
 
         
 
              David B. Dutman, testified that he is a food service 
 
         instructor at Kirkwood Community College and also owns a 
 
         restaurant.  He characterized claimant as a highly motivated 
 
         student who has missed several days.  Mr. Dutman reported that 
 
         claimant had indicated he missed time either because of his back 
 

 
         
 
         
 
         
 
         TUTTLE V. STANNARDS INC.
 
         Page   4
 
         
 
         
 
         or because his medications were bothering him.  On 
 
         cross-examination, Mr. Dutman reported that he was not aware that 
 
         claimant was taking medications for manic-depression and stated 
 
         he was unable to tell whether claimant could not attend because 
 
         of medications for his back or because of medications for that 
 
         condition.
 
         
 
              Dutman testified that claimant has stated he cannot lift 
 
         over forty pounds and gets assistance with lifting large items.
 
         
 
              Dutman reported that an average student graduating from the 
 
         Kirkwood course would initially receive wages of from $9,000 to 
 
         $15,000 per year while an above average student would start 
 
         generally at approximately $13,000 per year.  He characterized 
 
         claimant as an above average to excellent student.  Dutman 
 
         reported the part-time chef in his own restaurant who has 
 
         completed the Kirkwood course earns $4.50 per hour or about 
 
         $9,000 per year.  The manager, also a Kirkwood graduate, has had 
 
         three years additional training at the Hyde Park Culinary 
 
         Institute and has worked at Stouffers Restaurant.  He earns 
 
         $20,000 per year.
 
         
 
              Dr. Pontarelli, a board certified orthopedic surgeon, has 
 
         opined claimant has a 20 percent body as a whole permanent 
 
         partial impairment under the American Academy of Orthopedic 
 
         Surgeons standards.  In his deposition, Dr. Pontarelli reported 
 
         that he last saw claimant in February 1987 and that claimant 
 
         should not perform any frequent, that is, no more than once an 
 
         hour, lifting of more than twenty pounds and is to change 
 
         positions as often as necessary to relieve pain in his back.
 
         
 
         
 
         The doctor reported that while he had used the term degenerative 
 
         disc disease in a report, he had meant that restoration of 
 
         claimant's previous condition following his injury was not 
 
         possible.  The doctor characterized claimant's prognosis as poor 
 
         in that claimant can be expected to have chronic, persistent low 
 
         back pain, with recurrent problems needing medical treatment 
 
         through conservative measures.  He noted a very small possibility 
 
         exists that claimant will eventually require a spinal fusion.  
 
         Dr. Pontarelli stated a 50-50 percent possibility exists that 
 
         claimant would have less back problems if he were to lose the 
 
         weight he has gained since his injury.
 
         
 
              F. Richard Walton, M.D., Diplomate, American Board of 
 
         Surgery, examined claimant on February 7, 1986.  Claimant had 
 
         straight leg raising on the right to 60 degrees, on the left to 
 
         60 degrees.  Claimant denied any numbness or tingling in his legs 
 
         and no neurological deficit was noted.  Dr. Walton opined that 
 
         claimant had 20 percent permanent partial impairment under the 
 
         AMA Evaluation of Permanent Impairment Guides.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              We consider the permanent partial disability benefits 
 
         entitlement issue:
 

 
         
 
         
 
         
 
         TUTTLE V. STANNARDS INC.
 
         Page   5
 
         
 
         
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated. Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              In Parr v. Nash Finch Co., (Appeal decision, October 31, 
 
         1980) the Industrial Commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the
 
         
 
              injury that the court was indicating justified a 
 
              finding of "industrial disability." Therefore, if a 
 
              worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it 
 
              would appear this would justify an award of industrial 
 
              disability.  This would appear to be so even if the 
 
              worker's "capacity" to earn has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden, 288 N.W.2d 181.
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted. Id.
 
         
 
              Claimant has a moderately severe functional impairment as 
 
         well as a medically imposed 20 pound lifting restriction and a 
 
         need to change positions frequently.  He cannot return to his 
 
         former position as an over-the-road trucker.  The employer has 
 
         apparently made no effort to rehire claimant in other less 
 
         demanding work.  Claimant's own efforts at immediate reemployment 
 
         appears minimal and do not reflect a serious desire for gainful 
 
         work at this time.  Claimant has enrolled in college courses.  
 
         While his initial premedical program might have been overly 
 
         ambitious, his current food services program appears ideally 
 
         suited to his pretrucking employment experience.  He is doing 
 
         very well in his courses and is characterized as an above average 
 
         to exceptional student.  He may have difficulties performing some 
 
         of a chef's duties, but does not expect difficulties working as a 
 
         restaurant manager.  Beginning and long-term wages are also 
 
         greater for a restaurant manager than for a chef. (See Dutman 
 

 
         
 
         
 
         
 
         TUTTLE V. STANNARDS INC.
 
         Page   6
 
         
 
         
 
         testimony.) Claimant is a young worker.  He is bright and appears 
 
         flexible.  His noninjury related maniac-depression appears well 
 
         controlled.  Claimant testified it has interfered with his life 
 
         functioning.
 
         
 
         His career change should prove a much easier adjustment for him 
 
         than a like change would be for an older worker.  While his 
 
         initial earnings likely will be considerably less than he would 
 
         have earned as a trucker, his overall earnings should stabilize 
 
         modestly below the net profit reported on his 1984 income tax 
 
         return.  Net profit rather than gross intake is the appropriate 
 
         measure of claimant's lost earning capacity as net profit in 
 
         claimant's case best reflects his actual livelihood.  We are also 
 
         mindful that claimant's 1984 income tax return reflects net 
 
         profit over approximately an eight month and not a twelve month 
 
         period, however.  Weighing all the above factors, claimant is 
 
         found to have a reduction of earning capacity of 25 percent.
 
         
 
         
 
         
 
              We consider the rate issue.
 
         
 
              Section 85.36, unnumbered paragraph 1, provides:
 
         
 
                   The basis of compensation shall be the weekly 
 
              earnings of the injured employee at the time of the 
 
              injury.  Weekly earnings means gross salary, wages, or 
 
              earnings of an employee to which such employee would 
 
              have been entitled had the employee worked the customary 
 
              hours for the full pay period in which the employee was 
 
              injured, as regularly required by the employee's 
 
              employer for the work, or employment for which the 
 
              employee was employed, computed or determined as follows 
 
              and then rounded to the nearest dollar.
 
         
 
              Claimant was paid by his output.  Therefore, section 
 
         85.36(6) applies.  Section 85.36(6) provides:
 
         
 
              In the case of an employee who is paid on a daily, or 
 
              hourly basis, or by the output of the employee, the 
 
              weekly earnings shall be computed by dividing by 
 
              thirteen the earnings, not including overtime or 
 
              premium pay, of sale employee earned in the employ of 
 
              the employer in the last completed period of thirteen 
 
              consecutive calender weeks immediately preceding the 
 
              injury.
 
         
 
              Claimant's injury occurred June 12, 1984.  Therefore, Booth 
 
         deposition exhibit 2 is applicable.  Accrued amounts represent 
 
         amounts claimant earned in the employ of the employer during that 
 
         period.  Accrual amounts were $9,863.15. Claimant had a total of 
 
         $3,537.80 in expenses for labor, food and motels in that period.  
 
         When that figure is deducted from the total accruals, the 
 
         resulting sum, $6,325.35, is considerably more than the one-third 
 
         amount, $3,254.84, on which defendants have calculated claimant's 
 
         compensation rate.  Hence, defendants' compensation rate has no 
 
         ready correlation to claimant's actual spendable earnings.  The 
 
         question remains, however, whether claimant's expense amounts 
 
         must be excluded from gross earnings in calculating his rate.  
 

 
         
 
         
 
         
 
         TUTTLE V. STANNARDS INC.
 
         Page   7
 
         
 
         
 
         Section 85.61(12) states that reimbursement of expenses and 
 
         expense allowances are excluded from gross wages.
 
         
 
              Claimant never received an expense reimbursement; therefore, 
 
         the question, in part, is whether any of claimant's total accrual 
 
         amounts should be considered an expense allowance under section 
 
         85.61(12). Claimant received 36 percent of the gross from each 
 
         load hauled.  He was required to pay all his own expenses from 
 
         that amount.  Claimant testified he was free to decide which 
 
         expenses he incurred on each load and that he could have worked 
 
         without hiring labor or staying in motels.  Presumably,
 
         
 
         
 
         
 
         he also had control over the quantity and quality of the food 
 
         which he purchased and consumed.  Defendants did not expressly 
 
         deliniate any portion of claimant's earnings as an expense 
 
         allowance but for providing that only one-third of the gross 
 
         accruals would be used to calculate claimant's rate.  As noted, 
 
         that figure has little bearing to claimant's actual expenses.  
 
         Defendants have not provided other evidence suggesting how it 
 
         relates to control over the type and quantity of employee 
 
         expenses.  Claimant's level of control over his own income 
 
         appears to have been so great that no amount of that income may 
 
         be considered as expense allowance.  We find that claimant had 
 
         made a prima facie showing that his rate should be calculated on 
 
         the total accrued amounts.  Defendants have not shown evidence as 
 
         to why rate calculations on that total is inappropriate; nor have 
 

 
         
 
         
 
         
 
         TUTTLE V. STANNARDS INC.
 
         Page   8
 
         
 
         
 
         they provided evidence of a more appropriate rate calculation 
 
         figure.  Claimant's rate, therefore, is calculated on the total 
 
         accrual amount.  See McCarty v. Freymiller Trucking,, Inc., file 
 
         numbers 729340, 729341,Appeal Decision filed February 25, 1986.
 
         
 
              Claimant is not married, but is required to support his 
 
         dependent child.  The child was conceived but not born on 
 
         claimant's injury date.  Afterborn children are entitled to 
 
         benefits following a death arising out of and in the course of 
 
         the employment.  Computation of rate under section 85.36 is based 
 
         on the maximum number of exemptions for actual dependency, to 
 
         which the employee was entitled on the date on which the employee 
 
         was injured, however.  Section 85.61(10). Claimant could not have 
 
         taken an exemptions for his then unborn child on his injury date.  
 
         Therefore, his rate is that of a single person entitled to one 
 
         exemption.  Claimant's rate is $390.40.
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant has a moderately severe functional impairment.
 
         
 
              Claimant has a 20 pound lifting restriction.
 
         
 
              Claimant is a younger worker and a high school  graduate.
 
         
 
              Claimant cannot return to truck driving and the employer has 
 
         not offered him other work.
 
         
 
              Claimant has made only minimal efforts to seek other 
 
         employment at this time.
 
         
 
              Claimant is enrolled in a community college food service 
 
         course which is well suited to his past work experience as a 
 
         restaurant chef.
 
         
 
              Claimant is doing well in his food service course.
 
              Claimant could perform the duties of a restaurant manager 
 
         but might have some difficulty with lifting required of a chef.
 
         
 
              Claimant is an above-average to exceptional student.
 
         
 
              An above-average student can expect a starting salary of 
 
         approximately $13,000 as a restaurant manager.
 
         
 
              Claimant's net profit for the approximately eight month 
 
         period he worked in 1984 was $19,823.
 
         
 
              Over time, claimant's income in food service work should 
 
         stabilize modestly before that amount.
 
         
 
              Claimant's dependent child was conceived but not born on 
 
         claimant's injury date.
 
         
 
              Claimant would not have been entitled to an exemption for 
 
         the child on his injury date.
 
         
 
              Claimant's rate is computed for a single person with one 
 

 
         
 
         
 
         
 
         TUTTLE V. STANNARDS INC.
 
         Page   9
 
         
 
         
 
         exemption.
 
         
 
              No part of claimant's gross compensation from the employer 
 
         was designated expense allowance.
 
         
 
              Claimant chooses the type and amount of costs he would incur 
 
         in driving for the employer.
 
         
 
              Claimant's rate of weekly compensation is computed on the 
 
         gross compensation he received.
 
         
 
              Claimant was paid on the basis of his output.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his June 12, 1984 injury of twenty five percent 
 
         (25%).
 
         
 
              Claimant's rate of weekly compensation if three hundred 
 
         ninety and 40/100 dollars ($390.40).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for one hundred twenty-five (125) weeks at the rate of 
 
         three hundred ninety and 40/100 dollars ($390.40) with those 
 
         payments to commence August 16, 1985.
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30
 
         
 
              Defendants pay costs pursuant to Division of Industrial
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
              Signed and filed this 7th day of April, 1987.
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. J. W. McGrath
 
         Attorney at Law 
 
         4th & Dodge
 
         Keosauqua, Iowa 52565
 

 
         
 
         
 
         
 
         TUTTLE V. STANNARDS INC.
 
         Page  10
 
         
 
         
 
         
 
         Mr. George E. Wright
 
         Attorney at Law
 
         607 Eighth Street
 
         Fort Madison, Iowa 52626
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803; 3001; 3002; 1901
 
                                                 Filed 4-7-87
 
                                                 Helen Jean Walleser
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         WILLIAM LLOYD TUTTLE,
 
         
 
              Claimant,
 
                                                 File No. 780967
 
         VS.
 
         
 
         STANNARDS, INC.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         FARMERS INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants
 
         _________________________________________________________________
 
         
 
         1803; 3001; 3002; 1901
 
         
 
              Twenty-five percent industrial disability awarded younger 
 
         worker with back injury who was retraining for food services 
 
         career.  Claimant had been a haul commission trucker.  Weekly 
 
         rate computed on gross commission.  Child conceived but unborn on 
 
         injury date not considered in computing weekly rate.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         LESLIE WENGER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 781030
 
         STURGEON TRUCK LINES,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         THE HARTFORD,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because he failed to establish an injury arising out 
 
         of and in the course of employment.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits A through Y. Both parties 
 
         filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                     I.  Whether claimant sustained an injury which arose 
 
              out of and in the course of his employment.
 
         
 
                    II.  Whether there is a causal relationship between 
 
              that injury and any disability.
 
         
 
                   III.  Whether claimant is entitled to healing period 
 
              and permanent partial disability benefits.
 
         
 
                    IV.  Whether the correct compensation rate has been 
 
              established.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will only be briefly expanded upon 
 
         here.
 
              Claimant alleges he sustained a work injury on October 14, 
 
         1984 when a solution of diesel fuel and anti-gel compound 
 
         splashed into his eyes while he was refueling the truck he was 
 
         driving for defendant-Sturgeon Truck Lines, Inc. (hereinafter 
 
         Sturgeon).  Claimant rinsed his eyes out with water immediately 
 
         afterwards.  At his next stop he called Robert Sturgeon, owner of 
 

 
         Sturgeon Truck Lines, Inc., and reported the splashing incident.  
 
         Sturgeon told claimant to seek medical attention if necessary.  
 
         However, claimant did not seek medical attention at that time 
 
         because he felt the irritation would subside.  Claimant continued 
 
         to drive for Sturgeon for two weeks following the splashing 
 
         incident before he was terminated by Strugeon for misconduct.  
 
         Claimant was denied unemployment compensation as a result of his 
 
         misconduct in the performance of his duties with Sturgeon.
 
         
 
              Two days after his termination claimant sought medical 
 
         treatment for his eyes from Steven Bascom, M.D., a family 
 
         practice physician.  Claimant related a history of the October 
 
         14, 1984 fuel splashing incident.  Dr. Bascom diagnosed a 
 
         chemical conjunctivitis caused by the October 14 incident.  Dr. 
 
         Bascom then referred claimant to Gilbert W. Harris, M.D., an 
 
         ophthalmologist, who found permanent scarring above the pupil in 
 
         claimant's left eye.  This scarring diminishes claimant's 
 
         eyesight.  Dr. Harris diagnosed claimant's condition a chemical 
 
         keratitis and attributed the condition to the October 14 
 
         incident.  Claimant was also examined by Robert S. Brown, M.D., 
 
         an ophthalmologist who also found scarring and concurred with Dr. 
 
         Harris' diagnosis.
 
         
 
              However, claimant failed to inform any of these doctors 
 
         about his prior eye problems which had begun in his childhood and 
 
         reoccurred in July 1984.  Specifically, claimant had corneal 
 
         scarring of the left eye as early as 1963 (see Exhibit Q and 
 
         Deposition of Dr. Krachmer, page 11, lines 13-16) and in July 
 
         1984 claimant saw N. L. Krueger, M.D., about problems with his 
 
         left eye.  Dr. Krueger noted redness and irritation in both eyes 
 
         and referred claimant to Louis H. Fingerman, M.D., an 
 
         ophthalmologist.  On July 25, 1984 Dr. Fingerman found ulceration 
 
         in the upper portion of the cornea in claimant's left eye and 
 
         diagnosed this condition as herpes simplex dendritic keratitis.  
 
         Claimant filed an unsuccessful workers' compensation claim as a 
 
         result of the July 1984 eye problem.
 
         
 
              Claimant states that he was unaware of Dr. Fingerman's 
 
         specific diagnoses and states that he did not give Dr. Bascom a 
 
         history of his prior eye problems because he did not ask for one.  
 
         Although Drs. Brown and Harris asked claimant about prior 
 
         injuries to his eye, claimant states he did not give them a 
 
         history of his eye problems because he did not fully understand 
 
         his prior condition.
 
         
 
         
 
         
 
         
 
              Upon learning of claimant's prior problems Drs. Brown and 
 
         Harris changed their opinion about the cause of the corneal 
 
         scarring.  They now opine that the corneal scarring is the result 
 
         of recurrence of the herpes simplex dendritic keratitis.
 
         
 
              Much of the remaining medical testimony in this matter 
 
         discusses whether splashing diesel fuel and anti-gel compound in 
 
         the eye may cause a recurrence of herpes simplex dendritic 
 
         keratitis.
 
         
 
              Dr. Bascom opines that it is possible that splashing diesel 
 
         fuel into claimant's eye would precipitate reactivation of herpes 
 
         simplex dendritic keratitis.  Dr. Fingerman opines that the 
 
         anti-gel and diesel fuel was probably a precipitating factor in 
 
         the recurrence of the keratitis.  However, he acknowledges that 
 
         just about anything could cause herpes simplex dendritic 
 

 
         
 
         
 
         
 
         WENGER V. STURGEON TRUCK LINES
 
         Page   3
 
         
 
         
 
         keratitis to flare up.
 
         
 
              Dr. Brown opines that its a possibility that diesel fuel and 
 
         anti-gel compound could reactivate herpes simplex dendritic 
 
         keratitis.  He also opines that the steroids prescribed by Drs.  
 
         Harris and Bascom could quite possibly reactivate herpes simplex 
 
         dendritic keratitis unless they were prescribed with an antiviral 
 
         drop.  Dr. Harris also opines that there is a possibility the 
 
         October 14 incident reactivated the herpes simplex dendritic 
 
         keratitis.
 
         
 
              Drs. Bascom, Brown, Harris and Fingerman were all asked in 
 
         their depositions if they agreed with the following statement 
 
         which appears in Duane and Jaeger, Ophthalmology Vol. IV Chap. 
 
         19, p. 4, a recognized ophthalmological reference book and 
 
         concerns reactivation of herpes simplex dendritic keratitis.  
 
         "Mild trauma, exposure to strong sunlight, menstruation, 
 
         psychiatric disturbances (25), or fever, particularly in 
 
         association with respiratory or intestinal infection, appear to 
 
         precede recurrent episodes and are usually accepted as 
 
         precipitating factors on this account although nothing is known 
 
         of the mechanism responsible." All agreed with this statement.
 
         
 
              However, Dr. Krachmer who has reviewed the medical records 
 
         in this case opines that reactivation can occur without one of 
 
         the factors mentioned in that statement by Duane and Jaeger.  He 
 
         opines that usually the precipitating factor cannot be 
 
         identified.
 
         
 
              Claimant has received training as an emergency medical 
 
         technician and as a combat medic.  He also has received training 
 
         in mortuary science.
 
         
 
         
 
         
 
         
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                 ANALYSIS
 
         
 
              Claimant argues that the arbitration decision fails because 
 
         the deputy did not make a finding of fact on whether claimant 
 
         sustained an injury to his eye on October 14, 1984@ Claimant 
 
         further argues that his consistent description throughout these 
 
         proceedings of an alleged fuel-splashing incident on October 14, 
 
         1984 together with Bob Sturgeon's testimony that claimant 
 
         reported a fuel-splashing incident to him on that day establish 
 
         that claimant sustained an injury to his eye as a result of 
 
         splashing fuel into his eye on October 14, 1984.
 
         
 
              Mere consistency of claimant's statements that he splashed 
 
         fuel into his eyes on October 14, 1984 is insufficient to 
 
         establish that such an incident occurred.  Claimant did not seek 
 
         medical attention at the time of the injury but continued to 
 
         drive.  Conditions and problems that claimant alleges appear 
 

 
         
 
         
 
         
 
         WENGER V. STURGEON TRUCK LINES
 
         Page   4
 
         
 
         
 
         inconsistent with not seeking medical treatment.  Claimant did 
 
         have opportunity to seek medical attention.  Claimant failed to 
 
         disclose his prior eye problems to some of his treating 
 
         physicians.  The explanations offered by claimant for his failure 
 
         to make this disclosure are not acceptable, particularly in light 
 
         of his medical training and the similarity of his present eye 
 
         problems to those that he has had in the past.  Claimant also 
 
         denied that he had ever made a workers' compensation claim before 
 
         this case is in a recorded telephonic interview with someone 
 
         representing Sturgeon (see Joint Ex.  A., p. 2).  However, at the 
 
         arbitration hearing claimant admitted that he had filed a prior 
 
         workers' compensation claim and that that claim concerned the eye 
 
         problems he had in July 1984. (Transcript, pp. 24-25) Claimant is 
 
         not a credible witness.
 
         
 
              Bob Sturgeon's testimony that claimant reported a fuel 
 
         splashing incident to him on October 14, 1984 does not save 
 
         claimant's credibility.  Merely reporting an incident to an 
 
         employer does not establish that such an incident, in fact, 
 
         occurred.
 
         
 
              Since claimant's testimony is found not credible, he must 
 
         rely on the corroboration of an eyewitness or medical testimony 
 
         to establish that he sustained an injury as a result of splashing 
 
         fuel into his eyes on October 14, 1984.  No eyewitness testimony 
 
         is presented.  Claimant did not see a physician until nearly two 
 
         weeks following the alleged fuel-splashing incident.  Dr. 
 
         Bascom's findings of redness and irritation to claimant's eyes, 
 
         at that time, are not sufficient to establish that the 
 
         fuel-splashing incident occurred.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant is not a credible witness.
 
         
 
              2.  Robert Sturgeon is a credible witness.
 
         
 
              3.  Claimant was in the employ of Sturgeon for approximately 
 
         two weeks beginning on October 14, 1984.
 
         
 
              4.  Claimant's job on October 14, 1984 consisted of over-the 
 
         road truck driving.
 
         
 
              5.  Claimant had medical problems with his left eye 
 
         including scarring over a ten year period during his childhood.
 
         
 
              6.  In July 1984 claimant developed redness and irritation 
 
         in both eyes and he was diagnosed as suffering from herpes 
 
         simplex dendritic keratitis in the left eye.
 
         
 
              7.  Claimant filed an unsuccessful workers' compensation 
 
         claim with an employer as a result of his eye problems in July 
 
         1984.
 
         
 
              8.  On November 2, 1984 claimant was again found by 
 
         physicians to have irritation and redness in both eyes.
 
         
 
              9.  After November 1984, the right eye cleared but permanent 
 
         scarring was found in the left eye which permanently and severely 
 

 
         
 
         
 
         
 
         WENGER V. STURGEON TRUCK LINES
 
         Page   5
 
         
 
         
 
         impaired claimant's vision in his left eye as a result of a 
 
         reoccurrence of the herpes simplex dendritic keratitis.
 
         
 
              10.  A reoccurrence of herpes simplex dendritic keratitis 
 
         can be precipitated by mild trauma, psychological disturbances, 
 
         colds, fever, and respiratory infections.
 
         
 
              11.  A reoccurrence of herpes simplex dendritic keratitis 
 
         can occur without a clear precipitating cause.
 
         
 
              12.  Claimant failed to prove that on October 14, 1984 he 
 
         splashed diesel fuel and anti-gel into his eyes.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence that on October 14, 1984 he suffered an injury arising 
 
         out of and in the course of employment.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That claimant shall pay the costs of this action including 
 
         the transcription of the hearing proceedings.
 
         
 
         
 
              Signed and filed this 10th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                           DAVID E. LINQUIST
 
                                           ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl
 
         Mr. Barry Moranville
 
         Attorneys at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1100 - 1108.5 - 1402.2
 
                                            1402.3 - 2200
 
                                            Filed July 10, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         LESLIE WENGER,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 781030
 
         STURGEON TRUCK LINES,
 
                                                 A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         THE HARTFORD,
 
         
 
              Insurance Carrier, 
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
              Claimant alleged an eye injury from splashing fuel into his 
 
         eyes.  Claimant found not credible--failed to disclose prior eye 
 
         problems to treating physicians--denied he had made prior 
 
         workers' compensation claim for eye problems then admitted that 
 
         he had done so at the hearing.  No other support in the record 
 
         for the injury claimant alleged.  No injury arising out of and in 
 
         the course of employment.  Affirmed.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HUGH GALEN MEHL,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         IOWA DEPARTMENT OF                         File  No. 781559
 
         TRANSPORTATION,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Hugh Galen 
 
         Mehl against the Iowa Department of Transportation, his employer, 
 
         and the state of Iowa, insurance carrier.  Claimant seeks 
 
         compensation for permanent partial disability as a result of the 
 
         injury he sustained on November 19, 1984.  The case was heard at 
 
         Fort Dodge, Iowa on September 11, 1987 and was fully submitted 
 
         upon conclusion of the hearing.  The record in the proceeding 
 
         consists of testimony from Hugh Galen Mehl and Edward M. 
 
         Bergeson.  The record also contains jointly offered exhibits 1 
 
         through 9.
 
         
 
                                      ISSUES
 
         
 
              The only issue presented for determination is the amount of 
 
         permanent partial disability caused by the injury.  The 
 
         employer's liability and all other matters of potential dispute 
 
         were established by stipulation of the parties.  The rate of 
 
         compensation was stipulated to be $175.36 per week.  The healing 
 
         period, pursuant to section 85.34(l) was stipulated to run from 
 
         November 27, 1984 until April 29, 1985, the date upon which it 
 
         was stipulated that any compensation for permanent partial 
 
         disability should become payable.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at the hearing was considered when 
 
         deciding the case even though it may not necessarily be referred 
 
         to in this decision.
 
         
 
              The facts of this case as far as the occurrences leading up 
 
         to the injury, the treatment and claimantOs return to work are 
 
         undisputed.  The evidence presents little in the way of 
 

 
         
 
         
 
         
 
         MEHL V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   2
 
         
 
         controversy between the parties regarding claimant's description 
 
         of his complaints and continuing symptoms.  Both claimant and 
 
         Bergeson appear to be fully credible witnesses.
 
         
 
              Hugh Galen Mehl is a 37-year-old single man who has been 
 
         employed by the Iowa Department of Transportation since May, 
 
         1977.  Prior to that time, he had driven a truck in the Army, ran 
 
         a punch press in a factory, operated heavy equipment during 
 
         construction at the Fort Dodge Airport, worked on a railroad gang 
 
         crew and performed construction work as a laborer and as an 
 
         electrician's helper.
 
         
 
              During the years of his employment with the Iowa Department 
 
         of Transportation, claimant has performed a variety of 
 
         activities.  These include mowing, repairing signs, driving 
 
         trucks, operating snowplows and repairing highway blowouts.  
 
         Claimant presently earns $9.01 per hour.
 
         
 
              Claimant is not a high school graduate.  He was kicked out 
 
         of high school during what he indicated should have been his 
 
         senior year.
 
         
 
              Claimant related sustaining several injuries.  He separated 
 
         his shoulder in 1981 while playing softball.  In 1983, he broke 
 
         his right ankle at work.
 
         
 
              On November 19, 1984, claimant injured his low back while 
 
         loading fence posts onto a truck.  He reported the injury to his 
 
         supervisor.  Claimant initially sought chiropractic treatment, 
 
         but did not improve.  He then sought care from Roy M. Hutchinson, 
 
         M.D., who ordered physical therapy.  When the therapy did not 
 
         resolve claimant's complaints, he was referred to Mercy Hospital 
 
         in Des Moines, Iowa where he came under the treatment of S. Randy 
 
         Winston, M.D., a neurosurgeon.  After a CT scan showed a 
 
         herniated L5-Sl lumbar disc, hemilaminectomy surgery was 
 
         performed (exhibit 2, page 19).  After a relatively uneventful 
 
         course of recuperation from the surgery,.claimant was released to 
 
         return to work effective April 29, 1985 (exhibit 3, pages 1-6).
 
         
 
              On March 2, 1987, Dr. Winston issued a report in which he 
 
         rated claimant as having a permanent partial impairment of three 
 
         percent of the body as a whole.  He found that claimant had full 
 
         range of motion of his back with no discernible weaknesses or 
 
         abnormal reflexes (exhibit 8).  Dr. Winston explained the basis 
 
         for his rating in exhibit 9.
 
         
 
              Since returning to work in April, 1985, claimant has 
 
         continued to perform his job in a manner which his supervisor, 
 
         Edward M. Bergeson, considered as being "real good" in comparison 
 
         to the work performed by claimant's co-workers.  Bergeson 
 
         characterized claimant as one of the better workers.  Bergeson 
 
         stated that if he did not have personal knowledge of the fact of 
 
         claimant's injury that occurred in 1984, he would not be able to 
 
         tell that claimant had a back problem through normal observation.  
 
         Bergeson testified that he observes employees daily.  He stated 
 
         that claimant has performed without any restriction on his 
 
         activity and without any complaint from co-workers alleging,that 
 
         claimant was not doing his share of the work.  Bergeson indicated 
 
         that claimant did occasionally complain of back pain.
 
         
 

 
         
 
         
 
         
 
         MEHL V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   3
 
         
 
              Claimant testified that the surgery performed by Dr. Winston 
 
         greatly improved his condition.  He stated that currently he has 
 
         some residual problems, however.  Things which claimant indicated 
 
         bothered him include riding a lawnmower, standing on concrete, 
 
         sitting in a hard chair and driving his pickup.  Claimant 
 
         testified that he still does everything at work he did prior to 
 
         his injury, but that he cannot do some things as well or as 
 
         quickly and that he has to be more careful.  He stated that he 
 
         never has a day at work when he is completely free from pain.  
 
         Claimant testified that it takes him longer to perform 
 
         maintenance on equipment than it did prior to the injury and that 
 
         bending over to work on equipment is painful.  Claimant stated 
 
         that riding the tractors used to cut grass bothers him, but that 
 
         the larger equipment aggravates him less than the smaller units.
 
         
 
              Claimant testified that he has experienced difficulties in 
 
         attempting to engage in social activities and sports.  Claimant 
 
         stated that he has tried, but been unable, to play softball or 
 
         basketball since the injury.  He does play golf and bowl, 
 
         although the activities do bother his back.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The only issue to be determined is claimant's entitlement to 
 
         compensation for permanent partial disability.  The facts in the 
 
         case are relatively undisputed.  Both witnesses appear credible.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              When evaluating industrial disability, the actual impairment 
 
         rating that is assigned is important only as it gives some 
 
         indication of the overall degree of physical impairment.  Small 
 
         numerical differences are not as important as physical functional 
 
         capacities.  Dr. Winston assigned a three percent impairment 
 
         rating.  This may or may not be consistent with AMA guides, but 
 
         the AMA guides are not the exclusive means of determining 
 
         impairment ratings.  Division of Industrial Services Rule 
 
         343-2.4. Regardless of whether claimant's impairment is three 
 
         percent or five percent, it is apparent that he has had a good 
 
         result from surgery.  His functional limitations are small when 
 
         compared to the limitations sometimes seen in other individuals 
 
         who have had a similar injury and surgery.
 
         
 
              Industrial disability, or loss of earning capacity, in a 
 

 
         
 
         
 
         
 
         MEHL V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   4
 
         
 
         workers' compensation case is quite similar to impairment of 
 
         earning capacity, an element of damages in a tort case.  
 
         Impairment of physical capacity creates an inference of lessened 
 
         earning capacity.  The basic element to be determined, however, 
 
         is the reduction in value of the general earning capacity of the 
 
         person rather than the loss of wages or earnings in a specific 
 
         occupation.  Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977)) 100 A.L.R.3rd 143.  Post-injury earnings 
 
         create a presumption of earning capacity commensurate with those 
 
         earnings, but they are not synonymous with earning capacity.  2 
 
         Larson Workmen's Compensation Law, section 57.21(d).  ClaimantOs 
 
         educational background is such that he does not appear to be well 
 
         suited for academic pursuits.  Physical labor is his expected 
 
         career field.  At the present time, he appears to be getting 
 
         along well in that field.
 
         
 
              Claimant's spine has been compromised by surgery.  He does 
 
         have a small permanent functional impairment.  Claimant's ability 
 
         to perform strenuous physical activity has been impaired, albeit 
 
         by a small amount.  He has not suffered any actual loss of 
 
         earnings and, in the record made, it appears that he will not if 
 
         he is able to continue in his employment with the Iowa Department 
 
         of Transportation.  His employment appears to be relatively 
 
         secure.  His present assignment and the present method of 
 
         assigning work within the work crew of which claimant is a part 
 
         allows him the flexibility needed to permit him to continue in 
 
         that type of work.  Work assignments and practices are, however, 
 
         a matter of policy that is determined by management.  Management 
 
         styles and policies are known to change.  If, for example, the 
 
         practice of trading off when performing jackhammer work would 
 
         change and claimant was assigned to be the designated jackhammer 
 
         operator, he would likely have very serious problems.  There is 
 
         no indication in the record that such a change is anticipated, 
 
         but common knowledge is sufficient to establish that any change 
 
         in supervisory personnel brings with it a potential for change in 
 
         supervisory practices.  The one thing that is certain about the 
 
         future is uncertainty.  Change is more likely than absence of 
 
         change.  While claimant's disability from an industrial 
 
         standpoint is small, it cannot be held to be nonexistent.  It is 
 
         therefore found and concluded that Hugh Galen Mehl has a 5% loss 
 
         of earning capacity and a 5% permanent partial disability in 
 
         industrial terms, compensable under the provisions of section 
 
         85.34(2)(u).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Hugh Galen Mehl has had a relatively good result from 
 
         his laminectomy surgery, but continues to have back pain daily.
 
         
 
              2.  Claimant continues to perform the same type of work that 
 
         he performed at the time of injury, but he does so with pain and 
 
         with some small limitation of his physical abilities.
 
         
 
              3.  Claimant and Bergeson are credible witnesses.
 
         
 
              4.  Claimant is a 37-year-old single man.
 
         
 
              5.  Claimant did not complete high school.
 
         
 
              6.  All of claimant's work experience has been in the field 
 

 
         
 
         
 
         
 
         MEHL V. IOWA DEPARTMENT OF TRANSPORTATION
 
         Page   5
 
         
 
         of moderate to heavy physical labor.
 
         
 
              7.  Claimant has a permanent physical impairment in the 
 
         range of 3%-5%.
 
         
 
              8.  Claimant has sustained a 5% impairment of his earning 
 
         capacity.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has a 5% permanent partial disability when the 
 
         same is evaluated industrially under the provisions of section 
 
         85.34(2)(u).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         twenty-five (25) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred seventy-five and 
 
         36/100 dollars ($175.36) per week payable commencing April 29, 
 
         1985.
 
         
 
              All amounts are past due and owing and shall be paid in a 
 
         lump sum together with interest pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by the agency pursuant to Division of 
 
         Industrial Services Rule 343-3.l.
 
         
 
              Signed and filed this 24th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Robert P. Ewald
 
         Assistant Attorney General
 
         Iowa Department of Transportation
 
         800 Lincoln Way
 
         Ames, Iowa 50010
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.40, 1803
 
                                               Filed February 24, 1988
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         HUGH GALEN MEHL,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         IOWA DEPARTMENT OF                         File No. 781559 
 
         TRANSPORTATION,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40, 1803
 
         
 
              Thirty-seven-year-old claimant, who had not completed high 
 
         school, sustained a back injury and underwent laminectomy 
 
         surgery.  He had a good result from surgery and returned to the 
 
         same employment duties without any medically imposed physical 
 
         restrictions.  Claimant continued to complain of pain on a daily 
 
         basis, which was aggravated by many of the activities in which he 
 
         engaged in his employment.  He discontinued some of his 
 
         recreational off-work pursuits due to the pain.  He had a small 
 
         degree of permanent physical impairment in the range of 3%-5%.  
 
         Claimant awarded 5% permanent partial disability industrially.
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CRAIG A. SERVANTEZ,
 
         
 
              Claimant,                         File No. 781823
 
         
 
         vs.
 
         
 
         ARMOUR FOOD COMPANY (CONAGRA),      A R B I T R A T I O N
 
         
 
              Employer,                         D E C I S I O N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a continuation of the proceeding in arbitration 
 
         brought by Craig A. Servantez against Armour Foods, his former 
 
         employer, Travelers Insurance Company, the employer's insurance 
 
         carrier, and the Second.Injury Fund of Iowa.  The only issues 
 
         remaining for determination in this case are whether the employer 
 
         and/or the Second Injury Fund of Iowa are liable for payment of 
 
         additional compensation under the provisions of the fourth 
 
         unnumbered paragraph of Iowa Code section 86.13.
 
         
 
              The case was heard and fully submitted on January 4, 1988 at 
 
         the Cerro Gordo County Courthouse in Mason City, Iowa.  The 
 
         record in this proceeding consists of testimony from Craig A. 
 
         Servantez, the deposition of Jon Stuart Scoles, all the evidence 
 
         that was received as exhibits at the hearing conducted on this 
 
         case in April, 1986 and the decision that resulted from that 
 
         April, 1986 hearing.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              A prior arbitration decision was entered in this case on 
 
         September 17, 1986 which awarded the claimant four days of 
 
         healing period benefits and thirty weeks of permanent partial 
 
         disability compensation based upon an injury of October 11, 1984.  
 
         The injury was the result of an overuse syndrome affecting 
 

 
         
 
         
 
         
 
         SERVANTEZ V. ARMOUR FOOD COMPANY (CONAGRA)
 
         PAGE   2
 
         
 
         
 
         
 
         claimant's right and left upper extremities.  The decision found 
 
         that the claimant had sustained a six percent permanent 
 
         impairment of the right upper extremity and a four percent 
 
         permanent impairment of the left upper extremity.  The decision 
 
         also found that claimant had a 20% permanent partial disability, 
 
         industrially, and ordered the Second Injury Fund of Iowa to pay 
 
         the claimant 26 weeks of permanent partial disability benefits 
 
         under the Second Injury Fund statutes.  The decision made a 
 
         specific finding of fact that the claimant was not a credible 
 
         witness.  Based upon that finding, the claimant was denied 
 
         compensation for an alleged hernia injury.  The prior decision 
 
         found that the claimant had suffered an injury to his right knee 
 
         in 1973 which resulted in a 20% permanent partial impairment of 
 
         his right leg.
 
         
 
              At the most recent hearing, the claimant testified that 
 
         reports containing his impairment ratings from Timothy Mead, 
 
         M.D., and John R. Walker, M.D., were sent to the employer's 
 
         insurance carrier shortly after the reports were issued.  The 
 
         claimant testified that he had not been evaluated by any other 
 
         physician for purposes of determining his physical impairment.  
 
         Claimant testified that he received no payments for permanent 
 
         partial disability prior to the entering of the arbitration 
 
         decision and was never given any explanation of the reason why 
 
         permanent partial disability had not been paid in accordance with 
 
         the ratings made by either of the physicians.  Claimant stated 
 
         that no explanation was given by the Second Injury Fund for its 
 
         failure to pay any weekly compensation prior to the time of the 
 
         decision and that neither the employer nor the Second Injury Fund 
 
         offered any evidence contrary to claimant's claim at the time of 
 
         the prior hearing.  Claimant denied asking witnesses to lie on 
 
         his behalf and could give no explanation of why they would 
 
         testify that he had asked them to lie.
 
         
 
              Honorable Jon Stuart Scoles testified by way of deposition, 
 
         defendants' exhibit T, that he had initially represented the 
 
         employer and insurance carrier in this case and that the denial 
 
         of the claimant's claim and defense of the case was based upon 
 
         their belief that the claimant was not credible and that, by 
 
         virtue of his lack of credibility, he would be unable to carry 
 
         the burden of proving his claim (exhibit T, pages 4-7).
 
         
 
              No evidence was introduced by the Second Injury Fund with 
 
         regard to the reason for its denial of the claimant's claim.
 
         
 
              The agency file indicates that the claimant's petition was 
 
         filed in this case on May 1, 1985 and that, at the time of the 
 
         original filing, the Second Injury Fund, as well as the employer, 
 
         were parties defendant.
 
         
 
              In all other respects, the evidence in the case is 
 
         adequately summarized in the arbitration decision filed September 
 
         17, 1986.  That summary is incorporated herein by this reference 
 
         and will not be totally restated.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The fourth unnumbered paragraph of Iowa Code section 86.13 
 
         states:
 
         
 
              If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, 
 

 
         
 
         
 
         
 
         SERVANTEZ V. ARMOUR FOOD COMPANY (CONAGRA)
 
         PAGE   3
 
         
 
         
 
         
 
              the industrial commissioner shall award benefits in 
 
              addition to those 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.
 
         
 
              The burden of proof of an entitlement to the additional 
 
         benefits rests on the claimant, consistent with the general rule 
 
         that the burden of proving an entitlement to anything rests on 
 
         the proponent.  Rule 14(f)(5), Rules of Appellate Procedure; 
 
         Norland v. Iowa Department of Job Service, 412 N.W.2d 904, 910 
 
         (Iowa 1987).
 
         
 
              The penalty which can be assessed requires a delay in 
 
         commencement of benefits without reasonable or probable cause or 
 
         excuse.  The Iowa Supreme Court has not yet ruled upon how that 
 
         standard is to be determined, but the Wisconsin Court of Appeals 
 
         has addressed the issue in the case Kimberly-Clark Corporation v. 
 
         Labor and Industry Review Commission, 405 N.W.2d 684 (Wisconsin 
 
         1987).  The Wisconsin statute authorizes a penalty to be assessed 
 
         for failure to pay compensation when the claim is not "fairly 
 
         debatable."  The Wisconsin court had permitted an employee to 
 
         maintain a tort action for bad faith denial of compensation 
 
         benefits.  Coleman v. American Universal Insurance Company, 273 
 
         N.W.2d 220 (Wisconsin 1979).  The Iowa Supreme Court has declined 
 
         to recognize such a tort, but indicated that, in those states 
 
         which recognize such a cause of action, it is necessary for the 
 
         insured (claimant) to show: (1) the absence of a reasonable basis 
 
         for denying benefits provided by the policy, and (2) the 
 
         insurer's knowledge or reckless disregard of the lack of a 
 
         reasonable basis for denying the claim.  Pirkl v. Northwest 
 
         Mutual Insurance Association, 348 N.W.2d 633 (Iowa 1988); Higgins 
 
         v. Blue Cross, 319 N.W.2d 232 (Iowa 1984).
 
         
 
              The Wisconsin court, in a case dealing with bad faith on the 
 
         part of an insurer, stated that there must be some reasonable 
 
         basis, whether it concerns a question of fact or a question of 
 
         law, which lead a reasonable insurer to conclude that it need not 
 
         make payment on the claim.  Anderson v. Continental Insurance 
 
         Company, 271 N.W.2d 368 (Wisconsin 1978).  The Wisconsin court 
 
         ruled that the lack of a reasonable basis to deny a claim may be 
 
         interred from the insurer's or employer's conduct where there is 
 
         a reckless disregard of a lack of a reasonable basis for denial 
 
         or a reckless indifference to the facts or to the proof submitted 
 
         by the insured.  The criteria established by the Wisconsin court 
 
         seems well-reasoned. It is consistent with the standards found in 
 
         3 Larson Workmen's Compensation Law, section 83.41, which deals 
 
         with penalties.  This same standard has been followed by the 
 
         undersigned in other cases and will be followed in this case.
 
         
 
              The issue concerning whether the fourth unnumbered paragraph 
 
         of Code section 86.13 applies to payments from the Second Injury 
 
         Fund is a case of first impression.  The Iowa Supreme Court has 
 
         ruled that the provisions for commutation found in Iowa Code 
 
         sections 85.45-85.48 do not apply to the Fund.  McKee v. Second 
 
         Injury Fund of Iowa, 378 N.W.2d 920 (Iowa 1985).  The undersigned 
 
         has previously ruled that, when additional compensation is 
 
         awarded, it becomes due and payable on the date of the decision 
 
         which awards it.  The rationale for that decision is that any 
 
         other treatment would result in a complex formula with pyramiding 
 
         of interest and penalties, a result which the legislature does 
 
         not appear to have intended.  Klein v. Furnas Elec. Co., 384 
 

 
         
 
         
 
         
 
         SERVANTEZ V. ARMOUR FOOD COMPANY (CONAGRA)
 
         PAGE   4
 
         
 
         
 
         
 
         N.W.2d 370 (Iowa 1986).
 
         
 
              It is held that the fourth unnumbered paragraph of section 
 
         86.13, like the provisions for commutation, do not apply to the 
 
         Second Injury Fund of Iowa.  In making this determination, it 
 
         should be noted that the employer's access to information and 
 
         ability to control the events following a work-related injury are 
 
         quite different from that of the Second Injury Fund.  The 
 
         employer, in many cases, has actual knowledge of the injury when 
 
         it occurs or receives prompt notification of the injury due to 
 
         the employee's absence from work.  The employer is given the 
 
         right to choose and select medical care under the provisions of 
 
         section 85.27 and has access to medical records dealing with the 
 
         treatment and recovery of the employee.  The Second Injury Fund 
 
         does not accumulate that information at the time the events occur 
 
         and only becomes privy to it after such time as litigation has 
 
         been commenced and records are obtained through the process of 
 
         discovery.  The Second Injury Fund has no control of the medical 
 
         care that is received and has no control of whether or not the 
 
         employee returns to work in any capacity with the employer.  In 
 
         short, the Second Injury Fund does not even have any basis for 
 
         knowing that an injury has occurred until such time as claim is 
 
         made, which claim may well be made several years after the 
 
         injurious incident, particularly if the employer has voluntarily 
 
         paid weekly compensation and medical benefits.  The chain of 
 
         events can have become quite stale by the time the Second Injury 
 
         Fund is made aware that an investigation is needed.
 
         
 
              The intent of the Second Injury Fund is to lessen the 
 
         disincentives which exist for hiring previously injured workers. 
 
         3 Larson Workmen's Compensation Law, section 83.41.  Applying the 
 
         penalty provisions of section 86.13 could not be reasonably 
 
         expected to have any significant effect on the legislation's 
 
         primary intent of encouraging the hiring of handicapped workers.
 
         
 
              It is understood that the Second Injury Fund of Iowa is 
 
         currently administered in a manner that is so conservative that 
 
         claims are seldom paid without litigation, regardless of the 
 
         knowledge or information provided to the administrator of the 
 
         Fund.  It is understood that a much lower proportion of the 
 
         claims against the Second Injury Fund are settled by the parties 
 
         than is commonly seen with claims against other respondents 
 
         before this agency.  Nevertheless, the interest provisions of 
 
         section 85.30 of The Code apply to benefits payable by the Fund 
 
         which are not paid commencing upon the completion of payments by 
 
         the employer.  Even though the Fund presumably has its funds 
 
         invested and suffers little actual loss as a result of the 
 
         interest it is ordered to pay, that interest is deemed to be a 
 
         sufficient incentive to encourage the Fund to make prompt 
 
         payments of amounts which are obviously due.  The Fund should be 
 
         administered in a manner consistent with the beneficent purpose 
 
         of the workers' compensation act that has consistently been 
 
         directed by the Iowa Supreme Court.  Caterpillar Tractor Company 
 
         v. Shook, 313 N.W.2d 503, 506 (Iowa 1981).  If the legislature 
 
         had intended that claimants be able to obtain benefits from the 
 
         Second Injury Fund without resorting to litigation, it could have 
 
         readily made some provision in section 86.13 or sections 85.63 
 
         through 85.69 of The Code to encourage the Fund to make prompt 
 
         payment of amounts which are clearly due.
 
         
 
              When the claimant testified in this most recent hearing, his 
 
         appearance and demeanor were observed, but the brevity of the 
 

 
         
 
         
 
         
 
         SERVANTEZ V. ARMOUR FOOD COMPANY (CONAGRA)
 
         PAGE   5
 
         
 
         
 
         
 
         hearing was such that the undersigned would not dispute the 
 
         findings regarding the claimant's credibility which were made by 
 
         the deputy as a result of the prior hearing.
 
         
 
              Defendants were ultimately correct with regard to their 
 
         denial of benefits with regard to the claimant's hernia injury.  
 
         Defendants have indicated that they chose to deny payment on the 
 
         basis of their belief that the claimant was not credible.  They 
 
         certainly had reason, as found by the deputy in the prior 
 
         decision, to question the claimant's credibility with regard to 
 
         the hernia.  Once any witness' credibility has been successfully 
 
         impeached, the credibility of all of the testimony from that 
 
         witness is subject to question.  The basis for challenging 
 
         credibility is not limited to matters or testimony directly 
 
         related to the subject matter of the impeachment.  "Falsus in 
 
         uno, falsus in omnibus", (false in one, false in all), as found 
 
         in the case Callahan v. Shaw, 24 Iowa 411 (1868) is as valid a 
 
         statement now as it was in 1868.  It is found that there was 
 
         adequate basis for questioning the claimant's credibility, and 
 
         resultingly his ability to prove the validity of all his claims.  
 
         That one issue, by itself, constitutes sufficient cause for 
 
         denial of the claim and denial of the voluntary payment of 
 
         compensation by the employer and its insurance carrier.  If the 
 
         Second Injury Fund were liable for additional compensation under 
 
         the fourth unnumbered paragraph of Code section 86.13, any matter 
 
         which constituted reasonable or probable cause or excuse for lack 
 
         of payment by the employer would also extend to the Second Injury 
 
         Fund.  It should be noted that the Fund is not compelled to pay 
 
         until such time as the employer has completed making its 
 
         payments.
 
         
 
              In addition to the credibility issue, this case presented an 
 
         injury which was in the nature of overuse syndrome.  It was not a 
 
         traumatic event which would be clearly recognizable.  It could 
 
         have easily been the result of off-work activities.  It is not 
 
         the type of injury which would necessarily be expected to result 
 
         in permanent disability.  The medical reports from Dr. Mead 
 
         clearly stated that the only basis for the impairment ratings 
 
         which he assigned was the loss of grip strength.  In view of the 
 
         claimant's impaired credibility and in view of the fact that grip 
 
         strength may very well be subject to conscious control by the 
 
         claimant, it was not unreasonable for the defendants to continue 
 
         to deny compensation, in spite of the impairment ratings from 
 
         Drs. Mead and Walker and the lack of any contrary rating from any 
 
         physician.
 
         
 
              Medical opinions are not binding upon the trier of fact 
 
         where the history upon which the opinion is based is in some 
 
         manner defective.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965).  In view of the questions which had arisen regarding 
 
         the claimant's credibility, it was not unreasonable for 
 
         defendants to decline to accept the uncontroverted opinions from 
 
         Drs. Mead and Walker because the trier of fact would have had 
 
         ample reason to reject their opinions because the accuracy of the 
 
         history given to them and the validity of the claimant's grip 
 
         strength tests were subject to question.
 
         
 
              This decision should not be considered an indication that 
 
         doubt regarding a claimant's credibility is always a defense to a 
 
         claim for additional benefits under the fourth unnumbered 
 
         paragraph of section 86.13.  It is a defense only in those cases, 
 

 
         
 
         
 
         
 
         SERVANTEZ V. ARMOUR FOOD COMPANY (CONAGRA)
 
         PAGE   6
 
         
 
         
 
         
 
         such as this, where the record shows a bona fide, good faith 
 
         basis for questioning the claimant's credibility.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The claimant sustained various work injuries to his 
 
         right and left upper extremities during the period January 19, 
 
         1984 through October 11, 1984 and the last injury of October 11, 
 
         1984 resulted in permanent impairment of six percent of the right 
 
         upper extremity and four percent of the left upper extremity.
 
         
 
              2.  The claimant was treated for his work injuries to his 
 
         upper extremities by Timothy Mead, M.D., an orthopaedic surgeon, 
 
         who found that the claimant had permanent impairment which was 
 
         causally related to the work injuries, and issued a report of his 
 
         findings on April 9, 1985.
 
         
 
              3.  The employer and insurance carrier became aware of Dr. 
 
         Mead's evaluation within a reasonable time following April 9, 
 
         1985, but refused payment of permanent partial disability 
 
         compensation to the claimant.
 
         
 
              4.  John R. Walker, M.D., on or about June 20, 1985, 
 
         evaluated permanent impairment in claimant's right and left upper 
 
         extremities which he related to claimant's work activities with 
 
         the defendant employer.
 
         
 
              5.  The defendant employer and its insurance carrier became 
 
         aware of Dr. Walker's evaluation within a reasonable period of 
 
         time after the report was issued by Dr. Walker, but refused to 
 
         make payment of permanent partial disability compensation to the 
 
         claimant.
 

 
         
 
         
 
         
 
         SERVANTEZ V. ARMOUR FOOD COMPANY (CONAGRA)
 
         PAGE   7
 
         
 
         
 
         
 
         
 
              6.  No other orthopaedic surgeons have evaluated claimant 
 
         for permanent impairment or issued opinions that the permanent 
 
         impairment was not related to the work the claimant performed for 
 
         the defendant employer.
 
         
 
              7.  The claimant's testimony regarding an alleged hernia was 
 
         found to be lacking in credibility.
 
         
 
              8.  The witness Jon Stuart Scoles is credible.
 
         
 
              9.  The defendant Second Injury Fund of Iowa became aware of 
 
         claimant's claim no later than May of 1985 and, in the exercise 
 
         of reasonable diligence, would have been aware of the preexisting 
 
         problem in claimant's leg and of the impairment ratings by Drs.  
 
         Mead and Walker shortly after the issuance of Dr. Walker's report 
 
         in June, 1985.
 
         
 
             10.  The employer had adequate, bona fide reason to question 
 
         the claimant's credibility in general.
 
         
 
             11.  The questions concerning the claimants credibility were 
 
         sufficient to create a reasonable basis for questioning whether 
 
         or not he had been injured in the manner which he reported.
 
         
 
             12.  The claimant's lack of credibility constituted a 
 
         reasonable basis for questioning the histories which he gave to 
 
         the physicians who examined him and the accuracy of the tests of 
 
         his grip strength which were conducted.
 
         
 
             13.  Defendants Armour Foods and Travelers Insurance Company 
 
         did not act unreasonably or without reasonable or probable cause 
 
         or excuse when they denied the payment of compensation for 
 
         healing period and/or permanent partial disability to the 
 
         claimant.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The burden of proving that there has been a delay in 
 
         commencement of benefits without reasonable or probable cause or 
 
         excuse rests on the claimant who alleges that such has occurred.
 
         
 
              3.  Where the testimony of any witness is impeached with 
 
         regard to any matter or subject, the credibility of all testimony 
 
         from that witness is compromised.
 
         
 
              4.  The defendant employer and its insurance carrier had 
 
         reasonable or probable cause or excuse to deny payment of 
 
         claimant's claim due to the reasons which existed for questioning 
 
         the claimant's credibility.
 
         
 
              5.  The penalty provisions of the fourth unnumbered 
 
         paragraph of Iowa Code section 86.13 do not apply to the Second 
 
         Injury Fund of Iowa.
 
         
 
              6.  If the provisions of section 86.13 did apply to the 
 
         Second Injury Fund of Iowa, any ground which would justify the 
 
         employer's denial of the claim would likewise justify the Second 
 
         Injury Fund's denial of the claim.
 

 
         
 
         
 
         
 
         SERVANTEZ V. ARMOUR FOOD COMPANY (CONAGRA)
 
         PAGE   8
 
         
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 7th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. C. Bradley Price
 
         Mr. Mark A. Wilson
 
         Attorneys at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
         Mr. Craig Kelinson
 
         Special Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
                                              1400, 1401, 1402, 3200
 
                                              3203, 3800, 4000, 4000.2
 
                                              Filed October 7, 1988
 
                                              MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CRAIG A. SERVANTEZ,
 
         
 
              Claimant,                           File No. 781823
 
         
 
         vs.
 
         
 
         ARMOUR FOOD COMPANY (CONAGRA),        A R B I T R A T I O N
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         1401
 
         
 
              At the original hearing, the claimant was found to not be 
 
         credible.  Where the testimony of any witness or claimant is 
 
         impeached, the credibility of all evidence from that witness is 
 
         compromised.
 
         
 
         1402, 4000
 
         
 
              It was held that, in any proceeding for section 86.13 
 
         penalty, the claimant has the burden of proving his entitlement 
 
         to those additional benefits.
 
         
 
         4000, 4000.2
 
         
 
              The Wisconsin standards of Kimberly-Clark Corporation and 
 
         the standards of 3 Larson, section 83.41 were recognized as 
 
         correct.
 
         
 
         4000, 4000.2
 
         
 
              It was held that, where the defendants deny a claim on the 
 
         basis of the perceived lack of credibility of the claimant, and 
 
         have a reasonable basis for questioning the credibility of the 
 
         claimant, the denial is not unreasonable or without probable 
 
         cause or excuse.
 
         
 
         
 
         
 
         
 
         
 
         3200, 3203, 3800, 4000
 
         
 
              It was held that the penalty provisions of section 86.13 do 
 
 
 
         not apply to the Second Injury Fund of Iowa, but that interest 
 
         does apply to Second Injury Fund benefits which are not timely 
 
         paid.