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.