BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GREGORY J. SCHMITZ,
 
         
 
              Claimant
 
                                                   File No. 835114
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         UMTHUN TRUCKING COMPANY,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and                                          F I L E D
 
         
 
         INTERCONTINENTAL INSURANCE                  AUG 15 1989
 
         MANAGERS, INC.,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Gregory J. 
 
         Schmitz, claimant, against Umthun Trucking Company, employer 
 
         (hereinafter referred to as Umthun)., and Intercontinental 
 
         Insurance Managers, Inc., insurance carrier, defendants, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on October 3, 1986.  On December 8, 1988, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written evidence was received during the hearing 
 
         from both parties.
 
         
 
              According to the prehearing report the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On October 3, 1986, claimant received an injury which 
 
         arose out of and in the course of his employment with Umthun.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from March 28, 1987 through September 22, 
 
         1987 and defendants agree that he was not working during this 
 
         time.
 
         
 
              3.  The work injury of October 3. 1986, was a cause of both 
 
         temporary and permanent disability.
 
         
 
              4.  With reference to computing claimant's rate of weekly 
 
         compensation, it was agreed that claimant was married and 
 
         entitled to 3 exemptions on his tax returns at the time of the 
 
         alleged injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  All requested medical benefits have been or will be paid 
 
         by defendants.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  The extent of claimant's entitlement to weekly 
 
         benefits for disability;
 
              
 
               II.  Claimant's rate of weekly compensation; and,
 
              
 
              III.  Claimant's entitlement to penalty,benefits under Iowa 
 
         Code section 86.13 for an unreasonable denial or delay in payment 
 
         of weekly benefits.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Umthun for only 2 
 
         weeks prior to the work injury as an over-the-road truck driver.  
 
         Prior to his employment, he was trained by Umthun.  Claimant was 
 
         charged a fee for this training and claimant signed a training 
 
         agreement in which he agreed to repay Umthun with interest via 
 
         monthly payroll deductions from his wages in the amount of 
 
         $154.01. Claimant earned 18.5 cts per mile in his job at the time 
 
         of the alleged injury.  According to claimant, he was to receive 
 
         regular pay in the amount of 21.5 cts per mile upon completion of 
 
         a 90 day probationary period.  Defendants' witnesses disagreed 
 
         with claimant's testimony concerning the amount of the increase 
 
         in mileage rate after the completion of the probationary period. 
 
         However, the employee handbook submitted into evidence supports 
 
         claimant's testimony.  Employer records indicate claimant was a 
 
         good student and a good probationary driver up to the time of his 
 
         work injury.  Claimant drove a total of 3,275 miles for Umthun 
 
         prior to the injury.
 
         
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified that on October 3, 1986, while on a road trip, 
 
         he attempted to place a tarp on his trailer.  Claimant said that 
 
         the tarp was wet causing him to slip and fall from the top of the 
 
         trailer to the ground landing on his back.  Claimant also struck 
 
         his left arm on the trailer during the fall.  Claimant received 
 
         immediate medical attention and was transported to a local 
 
         hospital with complaints of arm and back pain.  At the hospital, 
 
         claimant was diagnosed as suffering from a fracture of his arm in 
 
         two places and a fracture of the wrist.  After his discharge from 
 
         the hospital and return home, Jerry Jochims, M.D., an orthopedic 
 
         surgeon, began treatment of claimant's injuries.  Dr. Jochims 
 
         diagnosed that claimant had also suffered a 25 percent 
 
         compression fracture of the T9 vertebra in his spine.  On October 
 
         14, 1986, Dr. Jochims noted that such compression fracture can be 
 
         associated with physical impairment.  Claimant remained under the 
 
         care of Dr. Jochims until he was authorized to return to full 
 
         duty as a truck driver on December 3, 1986.  Claimant testified 
 
         that he believed at the time that he could return to work but 
 
         after only a few hours of driving he had to terminate his driving 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         due to the onset of severe back pain.  Claimant returned to Dr. 
 
         Jochims who took him off work for another month.  Claimant was 
 
         then released to light duty on January 26, 1987, with 
 
         restrictions against lifting over 30 pounds and no prolonged 
 
         driving.  Claimant then was assigned to washing trucks and 
 
         cleaning the maintenance areas. Claimant said that much of this 
 
         work aggravated his back such as handling tarps, bending over 
 
         while sweeping, washing trucks and pushing a broom.  Claimant was 
 
         paid $5.00 per hour from this work and also received in addition 
 
         workers' compensation checks to supplement his income to the 
 
         level of his normal compensation rate.  On February 5, 1987, Dr. 
 
         Jochims reported to Umthun that claimant should be able to return 
 
         to full duty by March 1, but that in any event he would be left 
 
         with permanent residuals due to the compression and wrist 
 
         fractures.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On February 12, 1987, without explanation in his reports, 
 
         Dr. Jochims released claimant to return to truck driving 
 
         apparently without examining claimant.  Claimant objected to 
 
         Umthun stating that he could not return to driving with the seats 
 
         Umthun had in its trucks.  However, he did state that he felt 
 
         that he could continue on light duty.  Claimant could not return 
 
         to Dr. Jochims until February 24, 1987.  At the time of this 
 
         appointment he complained to Dr. Jochims about continual pain 
 
         even while performing light duty work.  However, the defendant 
 
         employer had reported to Dr. Jochims that claimant had been 
 
         performing farm chores at his parents' farm.  Claimant admitted 
 
         at hearing that he performed such chores but was compelled to do 
 
         so by his father's "by-pass" surgery.  He denied that this work 
 
         was heavy indicating that he would only feed horses each day by 
 
         rolling out bales, cutting the twine and flaking away small 
 
         pieces of hay for the horses.  He explained that none of this 
 
         activity required lifting over 10 pounds.  Dr. Jochims, at the 
 
         time of the February 24, 1987 appointment, confronted claimant 
 
         with the information furnished to him by Umthun and that he did 
 
         not think that claimant was giving the return to work a fair 
 
         trial.  He recommended to claimant at the time that claimant 
 
         receive a second opinion evaluation. Claimant then agreed with 
 
         Judy Percel from the Umthun Safety Department to return back to 
 
         light duty on February 27, 1987.  At that time, claimant was 
 
         subsequently fired by the safety director, Kenneth Scott.
 
         
 
              The facts surrounding claimant's termination by Scott were 
 
         highly contested at hearing.  Claimant testified that while he 
 
         was on his way to Umthun on the day he was to report back for 
 
         work he stopped at his grandparents' home and telephoned Kenneth 
 
         Scott. Claimant testified that such a procedure was what he was 
 
         supposed to do according to the employee manual when he had 
 
         questions about returning to work.  Claimant said that he told 
 
         Scott that his back hurt and wondered what he would be assigned 
 
         to that day.  He said that Scott responded by firing him for not 
 
         reporting for duty. Claimant said that he then appealed to the 
 
         owner of Umthun in a subsequent telephone call a few minutes 
 
         later but the owner refused to rescind the termination.
 
         
 
              Claimant testified at hearing that he also was dissatisfied 
 
         about returning to light duty status because of his pay.  While 
 
         he was on light duty, the compensation carrier credited against 
 
         the compensation rate the sum of $200.00 a week claimant received 
 
         for light duty work which resulted in a much lower compensation 
 
         check. However, Umthun not only deducted the usual withholding 
 
         taxes from his light duty pay, but also continued to deduct the 
 
         full loan payment for claimant's training.  Claimant's check from 
 
         Umthun for the light duty work between January 26, 1987 and 
 
         February 6, 1987, was a total sum of $.45 after these deductions.  
 
         Claimant's workers' compensation checks were lowered to 
 
         approximately $90 for the light duty work.  Claimant testified 
 
         that he complained to Judy Percel that he could.not live on this 
 
         income.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Scott, the safety director, also testified that claimant 
 
         complained to him of the pay situation when he called in at the 
 
         time he was fired.  Scott said that claimant told him that he 
 
         wanted the pay situation resolved before he returned to work. 
 
         Scott stated that he told claimant that he should have reported 
 
         for work and then attempted to resolve the pay problem.  Scott 
 
         said that if he had done so, he would have ended the deduction 
 
         until claimant returned to full duty.  No explanation was offered 
 
         by Scott as to why he failed to know of the pay problem earlier 
 
         as a written report dated February 13, 1987, by Judy Percel, 
 
         verified claimant's testimony with reference to his complaint to 
 
         her about the pay problem.
 
         
 
              A terminal manager at Umthun testified that he told claimant 
 
         never to work in excess of his physical limitations.  He also 
 
         testified that it was the usual practice at Umthun to only "write 
 
         up" a tardy employee after their first offense.  No explanation 
 
         was offered as to why claimant was the exception.  Although 
 
         claimant had been disciplined on one prior occasion for horseplay 
 
         at the terminal, he had not been previously disciplined for 
 
         tardiness or any failure to report for work.
 
         
 
              All of claimant's weekly benefits for healing period were 
 
         terminated by defendant employer's insurance carrier after 
 
         claimant's termination on the grounds:that he refused to return 
 
         to light duty work.  Also, no weekly benefits for permanent 
 
         disability were paid at anytime prior to hearing.  The evidence 
 
         indicates that two offers of settlement were made by defendants 
 
         prior to hearing for payment of weekly benefits but both were in 
 
         the form of lump sum settlements for a full settlement of all 
 
         claims.  Therese VanDorpe, the claim supervisor of Umthun's 
 
         insurance carrier, testified at hearing that no other offer was 
 
         made as she wanted to settle all the claims at one time and have 
 
         a closed file.  She admitted that no weekly benefits for 
 
         permanent disability were paid to claimant prior to hearing.
 
         
 
              In April 1987, claimant received the second opinion 
 
         evaluation recommended by Dr. Jochims from Charles Cassel, M.D., 
 
         another orthopedic surgeon.  Dr. Cassel recommended use of a "TNS 
 
         [sic] unit, an electrical stimulation device to relieve pain," 
 
         physical therapy and anti-inflammatory medication along with ice 
 
         packs.  Claimant was recommended to limit his bending and weight 
 
         lifting for 3 or 4 months and then "he might try to return to 
 
         former occupation."
 
         
 
              In September 1988, Dr. Jochims reevaluated claimant.  He 
 
         noted that claimant was now using the TENS unit as recommended by 
 
         Dr. Cassel.  He rated claimant's disability as constituting a 24 
 
         percent permanent partial impairment to the body as a whole as a 
 
         result of the back and wrist problems.  In June 1988, Dr. Cassel 
 
         opined that claimant suffers from a 20 percent permanent partial 
 
         impairment.  Neither doctor set forth what work restrictions, if 
 
         any, claimant may have given this impairment rating.
 
         
 
              Claimant has not returned to truck driving since leaving 
 
         Umthun.  He testified that he would have physical difficulties in 
 
         doing so due to truck vibrations and bumps.  He said that he has 
 
         applied to and was rejected by three truck driving companies 
 
         since leaving Umthun.  One employer said that he did not have 
 
         enough experience and the others stated that they rejected him 
 
         because of the termination by Umthun.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that after 18 months of unemployment he 
 
         was forced to begin working for a hardware and lumber company 
 
         performing manual labor to earn a living.  This work consisted of 
 
         moving and loading lumber by hand and with a forklift truck. 
 
         Lifting duties comprised approximately two hours a day in this 
 
         job and claimant said that his back continued to bother him when 
 
         he performed such work but that he just "bared the pain."  
 
         Claimant said that he was then laid off and began working for a 
 
         local home center business.  Claimant said that he works 13 hours 
 
         a day, 5 days a week in this job.  Although lifting and moving 
 
         furniture occupied two hours a day, the balance of the day he 
 
         rearranged warehouses and swept the floors.  Claimant said that 
 
         his back pain has persisted and he continues to have nightly hot 
 
         showers, extensive laying on a couch when he returns home and 
 
         back rubs to alleviate pain.  He said that he continues to use 
 
         his TENS unit. Claimant explained that he has no choice but to 
 
         remain on the job to earn a living.  Claimant said that the home 
 
         center was scheduled to close in March 1989 and he will then 
 
         attempt to seek retraining at a local school.  He said that he 
 
         cannot plan on performing jobs in the future requiring heavy 
 
         lifting.
 
         
 
              Claimant is 30 years of age.  He dropped out of high school 
 
         during the eleventh grade.  He said that he had a C average in 
 
         school and quit because he simply was not interested in school. 
 
         Claimant's past employment history consists mainly of manual 
 
         labor work in such jobs as an elevator company, assembly work for 
 
         a manufacturer of water tanks, carpentry work for a manufacturer 
 
         of homes, various construction jobs in roofing, street and 
 
         highway repairs along with cement work.  Claimant was a gas 
 
         station attendant at one period of time.  Despite the wide 
 
         variety of jobs he has held, claimant testified that he never was 
 
         unemployed more than a month prior to the work injury.  He said 
 
         that he was never on welfare and had no serious injuries before 
 
         October 1986.
 
         
 
              Claimant's appearance and demeanor at hearing indicated he 
 
         was testifying in a candid and truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding must be made as credibility was 
 
         at issue with reference to the circumstances of claimant's 
 
         termination and the extent of the disability.
 
         
 
                I.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury,,and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a resuit of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 
 
         251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
         Decision, February 28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  He was able to fully perform physical tasks 
 
         involving heavy lifting; repetitive lifting, bending, twisting 
 
         and stooping; and prolonged standing and sitting.
 
         
 
              Claimant's treating physician, Dr. Jochims, has given 
 
         claimant a significant permanent impairment rating of 24 percent 
 
         to the body as a whole.  Dr. Cassel has given a 20 percent 
 
         rating. The treating physician's rating will be utilized for the 
 
         purposes of the undersigned's findings of impairment.  However, 
 
         neither Dr. Jochims nor Dr. Cassel has imposed permanent work 
 
         restrictions. The absence of the restrictions is unusual.  It 
 
         would be wholly inconsistent for those doctors to believe that 
 
         claimant has suffered functional impairment or loss of use of his 
 
         body but is able to fully perform any amount or type of work.  
 
         The undersigned must conclude that the reason claimant's 
 
         physicians have never delineated his work restrictions is because 
 
         these doctors were never asked to do so.  Therefore, claimant's 
 
         testimony must be heavily relied upon to identify his physical 
 
         limitations.
 
         
 
              The release of claimant to full driving duties by Dr. 
 
         Jochims without an examination and after some sort of exparte 
 
         communication by defendants is also quite unusual.  Obviously the 
 
         doctor was reacting to what facts that were imparted to him.  The 
 
         exact nature of these facts is somewhat confusing.  If the doctor 
 
         was relying upon the farm work allegations of the claims 
 
         adjuster, it would be unfounded given claimant's explanation of 
 
         these activities at hearing.  Certainly feeding hay to horses for 
 
         a brief time each day is much less physically demanding than a 
 
         full eight hours a day of manual labor even if it were light duty 
 
         work.
 
         
 
              It must be concluded from the evidence that heavy labor work 
 
         is not suitable employment for claimant.  Although claimant was 
 
         working in a job requiring such labor at the time of hearing, his 
 
         credible testimony established that he continues to experience 
 
         considerable pain from this activity and quite rationally 
 
         concluded that he should seek alternative employment.
 
         
 
              Also, it will be found that over-the-road trucking is no 
 
         longer a viable option for claimant's future.  Claimant credibly 
 
         testified that he would have physical difficulty with such work. 
 
         Also, it is apparent from his failure to find work after 
 
         applications to local trucking firms that despite his very good 
 
         training and work record prior to the work injury, claimant has 
 
         not been hired as a driver.  Claimant was a steady, reliable good 
 
         worker before his work injury.  Certainly, a single incidence of 
 
         termination for cause would not normally preclude reemployment in 
 
         the entire truck driving industry.  Obviously, something else is 
 
         involved and is only logical to conclude that the work injury and 
 
         claimant's continuing disability is the cause of the rejections.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Apart from his lost earnings during his healing period which 
 
         will be compensated by healing period benefits, claimant has 
 
         suffered a significant permanent loss in actual earnings as a 
 
         result of his disability due to an inability to return to truck 
 
         driving.  His current work pay is far less than the truck drivers 
 
         at Umthun.
 
         
 
              On the other hand, claimant is young and has a good work 
 
         history outside of Umthun.  His employment since Umthun despite 
 
         his pain is an indication that claimant is motivated to be 
 
         employed in some capacity.
 
         
 
              Although claimant's age should be no barrier to retraining, 
 
         his past education experience is not very good.  It is 
 
         questionable that he could complete an extensive retraining 
 
         program.  GATB scores indicated a doubtful potential for success 
 
         of post high school schooling.
 
         
 
              Finally, even if he had not shown any physical inability to 
 
         return to work or to truck driving, claimant still would be 
 
         eligible for permanent disability benefits in this case under the 
 
         theory of Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980).  It is found that claimant's termination or change in 
 
         employment and resulting loss of wages was due to his work injury 
 
         and not due to any refusal to return to work.  It certainly would 
 
         not be unusual for an injured worker to question his employer as 
 
         to what work he would be assigned to upon a return to light duty 
 
         from a work injury.  Also, it is not unreasonable for an injured 
 
         worker to question a return to work arrangement during a healing 
 
         period in which he would receive less money than if he were not 
 
         working and receiving full healing period benefits.  He may have 
 
         agreed to a payroll deduction for his training loan but for 
 
         Umthun to do so while claimant was in a reduced pay situation 
 
         demonstrates a rather callous disregard of Umthun for its injured 
 
         employees.  The safety director's assertion that he was not aware 
 
         of claimant's pay problem was not credible and not supported by 
 
         the written reports of his own department.  The firing of 
 
         claimant without a past record of absenteeism and contrary to 
 
         Umthun's normal customary practices in such situations is 
 
         likewise evidence that the discharge had an alternative motive.  
 
         The evidence indicates that a dispute obviously developed between 
 
         claimant and the safety director as to his ability to return to 
 
         work.  Although Dr. Jochims sided with Umthun, he recommended a 
 
         second opinion before any further action would be taken.  It 
 
         would appear to this administrative law judge that Umthun's 
 
         safety director decided that he did not want to wait for a second 
 
         opinion and fired claimant on the pretext of the refusal to work.  
 
         It will be found that to do so without following Dr. Jochims' 
 
         advice as to a second opinion is an unreasonable conduct and 
 
         designed to defeat claimant's eligibility for healing period 
 
         benefits.  Therefore, as set forth in Blacksmith, a change in job 
 
         to reduced circumstances occasioned by a work injury is likewise 
 
         compensable under Chapter 85.  As a result of the termination, 
 
         claimant was unemployed for approximately 18 months following 
 
         injury and has not been hired by other trucking firms in the 
 
         area.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It should be noted that the findings of a job service 
 
         hearing officer in denying claimant's unemployment compensation 
 
         benefits is not binding on the undersigned.  Any finding that the 
 
         termination was a voluntary act within the meaning of the 
 
         unemployment compensation law has little application to a 
 
         workers' compensation context.  Furthermore, as the written 
 
         decision itself was not offered into the evidence, the 
 
         undersigned is unaware of such factors as the underlying findings 
 
         of fact; the quality of the hearing (whether it was in person or 
 
         by telephone); the nature and quality of the evidence presented; 
 
         and, the quality of claimant's representation at the hearing.  
 
         Without knowledge of such factors, the doctrine of res judicata 
 
         cannot be applied.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 40 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 200 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 40 percent of 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until claimant returns to work; until claimant is 
 
         medically capable of returning to substantially similar work to 
 
         the work he was performing at the time of the injury; or, until 
 
         it is indicated that significant improvement from the injury is 
 
         not anticipated, whichever occurs first.
 
         
 
              Defense argues that pursuant to Iowa Code section 85.33(3), 
 
         claimant refused to return to light duty work and therefore, is 
 
         not eligible for healing period benefits after this refusal. 
 
         Defendants are correct to the extent that a refusal to return to 
 
         suitable light duty work when there has been a supplementation of 
 
         weekly benefits does suspend healing period benefits.  However, 
 
         defendants are incorrect in their application of Iowa Code 
 
         section 85.33(3) to the facts of this case.
 
         
 
              First, given the payment of wages problem, it cannot be 
 
         found that claimant refused to return to suitable work.  Although 
 
         defendants were certainly within their legal rights to deduct the 
 
         full loan payment from claimant's light duty pay, in so doing, 
 
         claimant was quite justified in objecting.  Suitable light duty 
 
         work under Iowa Code section 85.33(3) is not work in which the 
 
         injured worker receives less income and benefits than he or she 
 
         would receive from payment of full weekly healing period 
 
         benefits.
 
         
 
              Secondly, it is certainly reasonable for an injured worker 
 
         to ask his employer what he or she may be expected to do while on 
 
         light duty.  Injured workers are in most incidents the best judge 
 
         of their own limitations and capabilities.  A delay in reporting 
 
         for work to ask such questions is not a refusal to work.  Third, 
 
         Iowa Code section 85.33(3) suspends healing period benefits only 
 
         during the period of refusal.  Even if claimant had initially 
 
         refused work, when he made a second call to the owner to ask for 
 
         his job back, the refusal to work ended.  Injured workers cannot 
 
         refuse light duty work when the offer for such work is withdrawn. 
 
         When claimant was terminated on the pretext that he refused to 
 
         work, the offer of light duty was rescinded and there was nothing 
 
         for claimant to refuse to invoke a suspension of his healing 
 
         period benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Therefore, claimant is entitled to full healing period 
 
         benefits beginning with his termination on February 27, 1987. 
 
         Claimant's disability was not rated until September 1987, by Dr. 
 
         Jochims.  Whether or not claimant reached maximum healing before 
 
         that time is not known as Dr. Jochims did not speak to the issue 
 
         in his reports.  Although Dr. Jochims stated in February 1987, 
 
         that he had nothing to offer claimant, he did so only with the 
 
         proviso that claimant receive another opinion.  Dr. Cassel saw 
 
         claimant in April 1987, and recommended various treatment 
 
         modalities.  Although Dr. Cassel saw claimant after that time, he 
 
         likewise did not opine when claimant may have reached maximum 
 
         healing prior to his rating in 1988.  Therefore, the date of 
 
         claimant's first rating of impairment on September 22, 1987, 
 
         appears to be the most logical date for termination of healing 
 
         period benefits.
 
         
 
               II.  With reference to the appropriate rate of weekly 
 
         compensation, claimant was employed less than 13 weeks. 
 
         Consequently, his rate of weekly compensation should be 
 
         determined under Iowa Code section 85.36(7).  However, no 
 
         evidence was offered concerning work available to other employees 
 
         in a similar occupation.  The wages of another employee were 
 
         submitted into evidence but nothing was offered to show that that 
 
         employee was representative of the other truck drivers.  Such 
 
         information is necessary if rate is to be determined under 
 
         85.36(7).  Absence such evidence, claimant's gross weekly 
 
         earnings is to be calculated via a method which most accurately 
 
         arrives at claimant's customary earnings.  This is most easily 
 
         accomplished by calculating his average actual earnings during 
 
         the employment. Barker v. City Wide Cartage, I Iowa Industrial 
 
         Commissioner Report 12 (Appeal Decision 1980).  In this case, 
 
         claimant testified that he received $751.52 in earnings in the 
 
         two full weeks he worked prior to the injury.  Claimant's average 
 
         weekly earnings therefore was $375.76.
 
         
 
              Claimant argues that Iowa Code section 85.36(10)(b) applies 
 
         in that claimant was "in training" during his probationary 
 
         status. The evidence shows that Umthun employees received 21.5 
 
         cts per mile after completing the 90 day probationary period.  As 
 
         the evidence also shows that Umthun considered the probationary 
 
         status as a training phrase, claimant is entitled to the 
 
         additional rate. Therefore, claimant's compensation rate will be 
 
         based upon gross earnings using the additional $.03 per mile rate 
 
         or an extra $49.13 per week in weekly earnings.  Therefore, 
 
         claimant's gross weekly rate, for purposes of computing his rate 
 
         of compensation in this case, is $424.89.  Given the stipulation 
 
         of marital status and 3 exemptions in the prehearing report, the 
 
         commissioner's rate booklet for an injury in October 1986, 
 
         indicates that claimant's weekly rate of compensation for this 
 
         case is $266.10.
 
         
 
              III.  Finally, claimant seeks additional weekly benefits 
 
         under Iowa Code section 86.13.  The unnumbered last paragraph of 
 
         this code section states as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                   If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              The Iowa Supreme Court has not delineated the precise legal 
 
         test to be utilize in applying the statutory language.  However, 
 
         guidance can be gleaned from the Iowa Supreme Court decisions 
 
         involving actions against insurance carriers for "bad faith" 
 
         denial of an insurance claim in the law of torts.  Pirkl v. 
 
         Northwestern Mut. Ins. Ass'n, 348 N.W.2d 633 (Iowa 1984); M-Z 
 
         Enterprises v. Hawkeye-Security Ins. Co., 318 N.W.2d 408, 414-15 
 
         (Iowa 1982).  In M-Z Enterprises, although the court denied the 
 
         opportunity to create a separate cause of action in this state 
 
         for a bad faith denial of a claim, the court stated that in those 
 
         states which have recognized such a cause of action, in order to 
 
         prevail, the insured must show the absence of a reasonable basis 
 
         for denying benefits and the insurer's knowledge or reckless 
 
         disregard of the lack of reasonable basis for denying the claim. 
 
         When the claim is "fairly debatable" the insurer is entitled to 
 
         debate it, whether the debate concerns a matter of fact or law. 
 
         M-Z Enterprises at 415 quoting favorably Anderson v. Continental 
 
         Insurance Co., 85 Wis.2d 675.
 
         
 
              Application of the bad faith theory to workers' compensation 
 
         cases was recently dealt with by the Wisconsin Supreme Court who 
 
         does recognize the cause of action for bad faith in Iowa and who 
 
         instructed their Wisconsin hearing officers as follows in 
 
         applying its own statutory bad faith provisions in the workers' 
 
         compensation statutes:
 
         
 
              As we read section 102.lA(1)(b)(p), stats., the issue of bad 
 
              faith is reached only after a formal award has been made to 
 
              claimant.  A hearing examiner than examines the record to 
 
              determine if there is any credible evidence which would 
 
              demonstrate that the claim was fairly debatable.  If the 
 
              examiner finds that there is no credible evidence which the 
 
              employer or insurer could rely upon to conclude that the 
 
              claim was fairly debatable, the examiner must determine if 
 
              the employer's or insurer's actions in denying payment were 
 
              reasonable.  This test is an objective one from the 
 
              standpoint of the employer or insurer.  Would a reasonable 
 
              employer or insurer under like or similar circumstances have 
 
              denied or delayed payment on the claim.  Kimberly-Clark v. 
 
              Labor and Industry Review Commission, 138 Wis.2d 58, 271 
 
              N.W.2d 684, 688 (1987).
 
         
 
              The above approach by the State of Wisconsin is a logical 
 
         and objective approach to the bad faith issue.  Therefore, in 
 
         absence of any other precise test delineated by higher authority, 
 
         the Wisconsin test will be utilized in this case.  Furthermore, 
 
         the Iowa Code section 507B.4(9) which combines a statutory 
 
         laundry list of unfair claim insurance practices is also a 
 
         helpful tool in assessing the reasonableness of claims adjustment 
 
         activity.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Turning to the case sub judice, we must first examine the 
 
         denial of hearing period benefits after claimant's termination 
 
         from Umthun.  The undersigned is of the opinion that the manner 
 
         of claimant's entitlement to healing period after the termination 
 
         of claimant is not "fairly debatable."  As set forth in the 
 
         analysis of claimant's industrial disability, the termination was 
 
         not justified and was clearly a reaction to the dispute between 
 
         claimant and the safety director as to claimant's ability to 
 
         return to work.  To do so without a second opinion as directed by 
 
         Dr. Jochims was unreasonable conduct.  Likewise, it was 
 
         unreasonable conduct to terminate claimant for simply inquiring 
 
         as to the nature of work he would be performing and to question 
 
         the pay circumstances.  Likewise, for the insurance carrier to 
 
         terminate benefits is unreasonable conduct since it was based 
 
         upon unreasonable conduct of the employer.  Therefore, defendants 
 
         jointly will be assessed penalty benefits in the amount of 50 
 
         percent of the healing period benefits entitlement between 
 
         February 27, 1987 and September 22, 1987, or one-half of 29 5/7 
 
         weeks.
 
         
 
              With reference to the payment of permanent disability 
 
         benefits, the issue of claimant's entitlement to some extent of 
 
         permanent disability benefits is likewise not "fairly debatable." 
 
         No physician ever opined that claimant had no physical permanent 
 
         impairment.  Defendants knew of the possibility of permanent 
 
         impairment as early as Dr. Jochims' first office visit in October 
 
         1986.  The insurer knew in September 1987, of the amount of the 
 
         disability according to the treating physician.  Permanent 
 
         impairment was reaffirmed in April 1987, by Dr. Cassel.  Although 
 
         Dr. Jochims did release claimant to truck driving, he never 
 
         opined that claimant did not have some degree of functional 
 
         impairment or loss of use to his body as a whole.  Given the fact 
 
         that claimant had not returned to truck driving, it is 
 
         unreasonable to conclude that he had no permanent disability.
 
         
 
              The claims supervisor for the insurer testified at hearing 
 
         that permanent partial disability benefits were withheld, not 
 
         because of any belief from their part that he had no disability, 
 
         but because defendants wanted a closed file and a full settlement 
 
         of all claims against Umthun and the insurer prior to paying any 
 
         benefits.  In other words, they wanted claimant to give up his 
 
         right to review-reopening and other legal rights before they paid 
 
         any workers' compensation benefits.  Such conduct is unreasonable 
 
         and contrary to the humanitarian principles of the workers' 
 
         compensation acts.  Defendants are under a statutory obligation 
 
         to begin payment of benefits as soon as permanent disability is 
 
         apparent and to continue those payments until such time as 
 
         defendants have reasonable cause to believe that his disability 
 
         has been fully compensated.  They did not do so in this case. 
 
         Therefore, an additional 10 percent or 50 weeks of permanent 
 
         partial disability benefits will be awarded in addition to 200 
 
         weeks awarded as a result of the finding of a loss of earning 
 
         capacity.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  The work injury of October 3, 1986, was a cause of a 
 
         period of total disability from work from February 27, 1987 
 
         through September 22, 1987, at which time claimant reached 
 
         maximum healing.  Claimant was terminated on February 27, 1987, 
 
         on the grounds that he did not timely report for work.  Claimant 
 
         had appealed to the owner of the company to rescind this 
 
         termination but was refused.  Claimant at the time of his 
 
         termination had called the safety director inquiring as to the 
 
         nature of the light duty work for which he would be performing.  
 
         He also complained of a compensation arrangement in which his 
 
         entire light duty earnings were consumed to pay a loan to Umthun 
 
         for his training.  Given the circumstances, claimant did not 
 
         refuse suitable work.
 
         
 
              3.  The work injury of October 3, 1986, was a cause of a 24 
 
         percent permanent partial impairment or loss of use to the body 
 
         as a whole as a residual effect of a compression fracture of a 
 
         spinal vertebra and a fracture of the wrist.  As a result 
 
         claimant has experienced chronic pain since that time while 
 
         performing heavy work or prolonged driving of a truck.
 
         
 
              4.  The work injury of October 3, 1986, and resulting 
 
         permanent partial impairment was a cause of a 40 percent loss of 
 
         earning capacity.  Claimant was terminated from his job as a 
 
         result of his work injury and resulting disability, not because 
 
         of a refusal to work.  The termination was a pretext by Umthun to 
 
         deny healing period benefits.  The termination by Umthun on 
 
         February 27, 1986, was not their customary disciplinary actions. 
 
         The termination was a result of a disagreement between claimant 
 
         and Umthun as to his ability to return to work.  Despite a 
 
         recommendation by claimant's treating physician that a second 
 
         opinion be obtained, claimant was terminated without such a 
 
         second opinion.  As a result of claimant's termination, he was 
 
         unemployed for approximately 18 months.  Claimant has since 
 
         returned to work to two manual labor jobs requiring two hours of 
 
         heavy lifting each day but such work is not suitable and 
 
         precipitates severe back pain.  Claimant only tolerates such pain 
 
         in an effort to remain employed in some capacity and to earn a 
 
         living.  Claimant uses various treatment modalities each day 
 
         including the use of a electronics simulation device to relieve 
 
         pain.  Claimant receives much lower pay in his current work than 
 
         he would receive as a truck driver.  Claimant is unable to return 
 
         to truck driving due to physical limitations and due to the 
 
         circumstances of his termination from Umthun.  Claimant is 30 
 
         years of age and has a tenth grade formal education.  Claimant's 
 
         rehabilitation potential is doubtful given his past educational 
 
         experiences and vocational rehabilitation tests.
 
         
 
              5.  Given the circumstances of this termination, the issue 
 
         of claimant's entitlement to healing period benefits after this 
 
         termination is not fairly debatable.  The actions of Umthun and 
 
         its insurance carrier to deny healing period benefits from 
 
         February 27, 1987 through September 22, 1987, was unreasonable. 
 
         The issue of claimant's entitlement to at least a 20 percent 
 
         permanent partial disability award given the totality of evidence 
 
         available to defendants at the time was not fairly debatable. 
 
         Defendants' position that no permanent partial disability 
 
         benefits would be paid without a full release of liability, lump 
 
         sum payment and a settlement of all claims with a closed file is 
 
         unreasonable given the humanitarian purposes of the workers' 
 
         compensation law.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              6.  Claimant's average weekly earnings at the time of injury 
 
         was $375.76 but he would have received an additional $49.13 per 
 
         week had he completed his probationary/training status prior to 
 
         the injury.  Claimant's gross rate of weekly earnings for 
 
         computing his compensation rate is $424.89.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 200 weeks 
 
         of permanent partial disability benefits; a rate of compensation 
 
         in the amount of $266.10 per week; an additional 14.86 weeks in 
 
         penalty benefits for an unreasonable denial of healing period 
 
         benefits; and, an additional 50 weeks of permanent partial 
 
         disability benefits for an unreasonable denial of weekly benefits 
 
         for permanent disability.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred sixty-six and 10/100 dollars ($266.10) per week from 
 
         September 23, 1987, and an additional fifty (50) weeks of 
 
         benefits at the rate of two hundred sixty-six and 10/100 dollars 
 
         ($266.10) per week from September 23, 1987.
 
         
 
              2.  Defendants shall pay to claimant healing period benefits 
 
         from February 27, 1987 through September 22, 1987, at the rate of 
 
         two hundred sixty-six and 10/100 dollars ($266.10) per week and 
 
         in addition fourteen point eight-six (14.86) weeks from February 
 
         27, 1987.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for weekly 
 
         benefits previously paid.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Commissioner Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 15th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Daniel E. Cahill
 
         Attorney at Law
 
         305 Witte Bldg.
 
         Burlington, Iowa  52601
 
         
 
         Mr. Steven J. Crowley
 
         Attorney at Law
 
         6th Floor Burlington Bldg.
 
         P. 0. Box 517
 
         Burlington, Iowa  52601
 
         
 
         Mr. Craig D. Warner
 
         Attorney at Law
 
         321 N. Third St.
 
         Burlington, Iowa  52601
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803; 1801.1; 4000.2
 
                                            Filed August 15, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GREGORY J. SCHMITZ,
 
         
 
              Claimant,
 
                                                      File No. 835114
 
         vs.
 
                                                    A R B I T R A T I 0 N
 
         UMTHUN TRUCKING COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         INTERCONTINENTAL INSURANCE
 
         MANAGERS, INC.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803 - Industrial disability
 
         
 
              Under the theory of Blacksmith v. All-American, it was held 
 
         that claimant is entitled to permanent disability benefits for a 
 
         termination from employment caused by the work injury regardless 
 
         of whether claimant suffered any permanent restrictions as a 
 
         result of the injury.  Claimant's termination was the result of a 
 
         dispute between claimant and his employer as to the ability to 
 
         return to work not because he failed to report for suitable work. 
 
         Claimant's own witnesses testified that they normally do not 
 
         terminate employees for a first offense of tardiness.  It was 
 
         found that such a termination was against the advice of a 
 
         treating physician as to a second opinion was unreasonable and 
 
         calculated to deny healing period benefits.
 
         
 
         1801.1 - Temporary partial disability
 
         
 
              It was found that it was not a refusal to return to suitable 
 
         work when such work offered would result in a combined income and 
 
         benefit amount which would be less than full healing period 
 
         benefits.  Also, it was not a refusal to work to question the 
 
         employer as to what duties would be assigned prior to reporting 
 
         for work.
 
         
 
         4000.2 - Penalty
 
         
 
              It was held that claimant's termination was a pretext to 
 
         avoid payment of healing period benefits.  The actions of both 
 
         the employer and insurance carrier were held to be unreasonable 
 
         and a full 50 percent penalty (14.86 weeks) was assessed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              It was likewise held that the refusal to pay permanent 
 
         disability benefits was unreasonable.  All medical experts agree 
 
         that the work injury caused at least a 20 percent permanent 
 
         partial impairment and that claimant had not returned to work to 
 
         the work he was performing at the time of the work injury.  The 
 
         claim supervisor admitted at hearing that no permanent partial 
 
         disability benefits were paid because she wanted a lump sum 
 
         settlement of all claims and a closed file.  This was held to be 
 
         contrary to the humanitarian purposes of the workers' 
 
         compensation act.  An additional 50 weeks of penalty benefits was 
 
         awarded.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      3202 5-3203
 
                      Filed May 24, 1991
 
                      CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            VIRGINIA PUTZIER,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File Nos. 804582/835165
 
            WILSON FOODS CORPORATION,     :
 
                      :           A P P E A L
 
                 Employer, :
 
                 Self-Insured,  :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            3202
 
            Claimant's first injury was a laceration injury to the right 
 
            hand.  Claimant later had bilateral carpal tunnel syndrome.  
 
            On appeal, the Second Injury Fund's argument that claimant 
 
            was not entitled to Second Injury Fund benefits because the 
 
            second injury also affected the same member as the first 
 
            injury was rejected.  Although Anderson v. Second Injury 
 
            Fund, 262 N.W.2d 789 (Iowa 1978) states that the second 
 
            injury must be to another member, this does not preclude 
 
            Second Injury Fund liability where the first member is again 
 
            affected, as long as the second injury also results in loss 
 
            to another member as well.  Thus, here, where claimant's 
 
            first injury resulted in a loss to the right hand, and the 
 
            second injury resulted in a loss to both the right hand and 
 
            the left hand, Fund liability was established. 
 
            
 
            5-3203
 
            Other arguments raised by the Second Injury Fund have been 
 
            resolved by the Supreme Court in Neelans and Braden.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      3202 5-3203
 
                      Filed May 24, 1991
 
                      CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            VIRGINIA PUTZIER,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File Nos. 804582/835165
 
            WILSON FOODS CORPORATION,     :
 
                      :           A P P E A L
 
                 Employer, :
 
                 Self-Insured,  :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            3202
 
            Claimant's first injury was a laceration injury to the right 
 
            hand.  Claimant later had bilateral carpal tunnel syndrome.  
 
            On appeal, the Second Injury Fund's argument that claimant 
 
            was not entitled to Second Injury Fund benefits because the 
 
            second injury also affected the same member as the first 
 
            injury was rejected.  Although Anderson v. Second Injury 
 
            Fund, 262 N.W.2d 789 (Iowa 1978) states that the second 
 
            injury must be to another member, this does not preclude 
 
            Second Injury Fund liability where the first member is again 
 
            affected, as long as the second injury also results in loss 
 
            to another member as well.  Thus, here, where claimant's 
 
            first injury resulted in a loss to the right hand, and the 
 
            second injury resulted in a loss to both the right hand and 
 
            the left hand, Fund liability was established. 
 
            
 
            5-3203
 
            Other arguments raised by the Second Injury Fund have been 
 
            resolved by the Supreme Court in Neelans and Braden.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RANDY PIERCE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 835207
 
            RUAN LEASING COMPANY,         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case.
 
            Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                             DAVID E. LINQUIST
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lawrence J. Lammers
 
            Attorney at Law
 
            701 Kahl Building
 
            Davenport, Iowa 52801
 
            
 
            Mr. Matthew J. Brandes
 
            Attorney at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa 52401
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9998
 
                                          Filed April 16, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RANDY PIERCE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 835207
 
            RUAN LEASING COMPANY,         :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE CO.,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-9998
 
            
 
            Deputy's decision summarily affirmed on appeal.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANCE PIERCE,
 
         
 
              Claimant,                                 File No. 835207
 
         
 
         vs.                                         A R B I T R A T I O N
 
         
 
         RUAN LEASING COMPANY,                          D E C I S I O N
 
         
 
              Employer,
 
                                                           F I L E D
 
         and
 
                                                          NOV 21 1989
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY                                      INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
              
 
              This is a proceeding in arbitration brought by claimant 
 
         Rance Pierce against defendant employer Ruan Leasing Company and 
 
         defendant insurance carrier National Union Fire Insurance Company 
 
         to recover benefits under the Iowa Workers' Compensation Act as 
 
         the result of an injury sustained on September 29, 1986.  This 
 
         matter came on for hearing before the undersigned in Davenport, 
 
         Iowa, on May 30, 1989, and was considered fully submitted at the 
 
         close of hearing.  The record in the proceeding consists of the 
 
         testimony of claimant and Tim Howell along with claimant's 
 
         exhibits A through H and defendants' exhibits 1 through 2, both 
 
         inclusive.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the undersigned, the parties have stipulated:  
 
         That an employment relationship existed between claimant and 
 
         employer at the time of the alleged injury; that if claimant has 
 
         sustained permanent disability, it is a scheduled member 
 
         disability to the left leg; that the appropriate rate of weekly 
 
         compensation is $220.87; that all requested medical benefits have 
 
         been or will be paid by defendants; and, that defendants paid 
 
         claimant 88.2 weeks of compensation at the stipulated rate prior 
 
         to hearing.
 
         
 
              Issues presented for resolution include:  Whether claimant 
 
         sustained an injury on September 29, 1986 arising out of and in 
 
         the course of his employment; whether the alleged injury caused 
 
         temporary or permanent disability; the extent of claimant's 
 
         entitlement to compensation for temporary or permanent disability 
 
         and the commencement date of permanent disability, if awarded; 
 
                                                
 
                                                         
 
         taxation of costs.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he began his employment with 
 
         defendant employer in 1985.  His duties included fueling and 
 
         greasing trucks, attending to tires, and the like.
 
         
 
              Claimant described his injury as occurring after he knelt to 
 
         put a jack stand under a truck.  When he attempted to stand, his 
 
         left knee locked, causing sudden and severe pain which worsened 
 
         as he tried to straighten the knee.  Claimant was taken by 
 
         ambulance to a local hospital where his knee was repositioned by 
 
         Ahmed Chamany, M.D. (the company doctor).
 
         
 
              Claimant described a course of treatment.with several 
 
         physicians culminating in surgery at the University of Iowa 
 
         Hospitals and Clinics on April 8, 1987.  Thereafter, claimant has 
 
         also seen physicians for his knee and does not believe that his 
 
         problems have resolved.
 
         
 
              Claimant agreed that he finally sought and obtained work in 
 
         approximately mid-September, 1988.  He is now performing duties 
 
         that are very similar to those he performed for defendant Ruan 
 
         Leasing Company.
 
         
 
              Claimant agreed that he is now under no restrictions.  He 
 
         states that he suffers some pain when he attempts to kneel (under 
 
         his kneecap) and that he is unable to completely bend his leg.
 
         
 
              Claimant agreed on cross-examination that he had suffered 
 
         before the work incident from "catching" of the left knee on 
 
         several occasions, but that the sensation was less painful on 
 
         those occasions.  He stated that the knee would "catch" in a more 
 
         extended position than at the time of the injury under review, 
 
         but did not "lock."
 
         
 
              Claimant agreed that the day before his injury, he had 
 
         suffered a similar "catching" incident when he lowered himself 
 
         from a semi-truck.
 
         
 
              Claimant agreed on cross-examination that he had told Ralph 
 
         H. Congdon, M.D., that he had developed a method of working his 
 
         knee out when it caught.  He stated further that when he had 
 
         given a history to J. M. Hoffman, M.D., he had advised that 
 
         physician of earlier problems with his knee (although Dr. Hoffman 
 
         testified in his deposition that claimant had normal knees).  
 
         Claimant also agreed that he advised Thomas A. Brozovich, D.C., 
 
         by a handwritten history, that his left knee had locked and that 
 
         the date he first noticed symptoms was September 29, 1986; 
 
         further, that this had not happened before.  Claimant explained 
 
         that his meaning was that he had not had prior incidents that he 
 
         was unable to repair himself.
 
         
 
              Tim Howell testified that he was supervising claimant at the 
 
                                                
 
                                                         
 
         time of his injury  and that claimant had suffered an injury when 
 
         he was unable to straighten his leg after placing a jack stand 
 
         under a tractor.  Mr. Howell indicated that claimant did not 
 
         strike anything or twist or turn, but merely knelt down.
 
         
 
              Mr. Howell further testified that claimant, while waiting 
 
         for an ambulance, advised him that "this has happened before, but 
 
         I've always been able to get it straightened out."  Howell 
 
         understood claimant as meaning that he had had several such 
 
         instances in the past.
 
         
 
              Medical records of Mercy Hospital on the date of injury show 
 
         that claimant was seen for a knee injury.  Nurse's notes show 
 
         that claimant denied a history of previous injury, but had 
 
         similar popping sensations of the left knee one week ago while at 
 
         work.
 
         
 
              Dr. Chamany noted that claimant had been injured when 
 
         putting up a jack stand and had no swelling, but slight 
 
         tenderness with no effusion.  Dr. Chamany noticed no crepitation.  
 
         His impression was of extensor dysfunction in the form of 
 
         chondromalacia.  Claimant was treated with a knee immobilizer and 
 
         advised to return in three weeks for follow-up.
 
         
 
              Dr. Chamany prepared a surgeon's report on September 30, 
 
         1986. He described the injury in that report as a sprained knee 
 
         that would not result in permanent defect.  However, he opined 
 
         that claimant's accident at work was the only cause of his 
 
         condition. Dr. Chamany referred claimant to Dr. Congdon.
 
         
 
              Ralph H. Congdon, M.D., saw claimant on several occasions in 
 
         October and November, 1986.  He noted that claimant had remarked 
 
         that the knee had locked before, but that he had always been able 
 
         to "work it out."  Dr. Congdon was unwilling to make a diagnosis 
 
         that might require operative arthroscopy as of the last time he 
 
         saw claimant.
 
         
 
              Thomas A. Brozovich, D.C., saw claimant first on October 22, 
 
         1986.  In a letter of November 21, 1986 to Richard Kreiter, M.D., 
 
         Dr. Brozovich noted that claimant has had severe pain since his 
 
         injury and that on occasion the left knee locks up.  "It seems 
 
         that since the accident the occurrence of the knee locking up has 
 
         become more often.  When the knee does lock he is able to get it 
 
         loose by manual manipulating the knee and sometimes forcing it 
 
         which causes it to release."
 
         
 
              Dr. Brozovich felt unable to treat claimant and referred him 
 
         to Dr. Kreiter and to Dr. Dougherty.
 
         
 
              Dr. Kreiter saw claimant in November and December, 1986.  
 
         His impression was of retropatellar discomfort.  As of December 
 
         11, 1986, he felt that claimant was capable of returning to work.  
 
         He was of the view that claimant might best be seen by the 
 
         University of Iowa Hospitals and Clinics.
 
         
 
                                                
 
                                                         
 
              Claimant was seen by several physicians at the University of 
 
         Iowa.  On February 23, 1987, Dr. Walsh and Greg Palutsis, M.D., 
 
         had an impression of patellofemoral pain with likely 
 
         patellofemoral chondromalacia versus chondroflap.  Surgery was 
 
         planned for April 8, 1987 and performed that date.
 
         
 
              Tom McClain, M.D., and Greg Palutsis, M.D., wrote on April 
 
         9, 1987 that claimant's postsurgical diagnosis was of maltracking 
 
         left patella, plica left knee, patellar chondromalacia.  Surgical 
 
         treatment included left knee arthroscopy, resection of plica, 
 
         lateral retinacular release.
 
         
 
              Claimant was thereafter seen by John J. Schaffer, M.D., who 
 
         was undergoing a fellowship at the University of Iowa Hospitals 
 
         and Clinics.  Dr. Schaffer testified by deposition taken December 
 
         8, 1987:
 
         
 
              Q.  What was the procedure performed on April 8, 1987?
 
         
 
              A.  Mr. Pierce had an arthroscopic examination of the left 
 
              knee.  At that time the findings were that he had a plica in 
 
              the medial peripatellar region.  The determination was also 
 
              made at surgery that he had some lateral maltracking of the 
 
              patella.  He also had.some softening of the cartilage which 
 
              we term chondromalacia on the lateral patellar facet.  
 
     
 
                 
 
                                                         
 
              Because of these findings the patient had a resection of the 
 
              plica and a lateral retinacular release.
 
         
 
              Q.  You've used some technical terms, Doctor.  Could you 
 
              indicate first for the record what the nature of a 
 
              maltracking patella would be?
 
         
 
              A.  A maltracking patella is a patella which moves in and 
 
              out of the trochlear groove of the femur in an abnormal 
 
              fashion. In this patient's case the patella was seen to 
 
              track laterally, which means that during its excursion from 
 
              flexion to extension through part of that range of motion it 
 
              was displaced laterally more than normal.
 
         
 
              Q.  What if the record indicates or if you have an opinion 
 
              based on a reasonable medical certainty is the cause of the 
 
              maltracking of the patella in this particular instance?
 
         
 
              A.  In a patient -- in a patient that has had no previous 
 
              trauma or injury to the knee, the maltracking is a 
 
              congenital condition which is caused by its inherent tissue 
 
              material and its own particular anatomical makeup.
 
         
 
              Q.  Okay. When you refer to a history of trauma or absence 
 
              of a history of trauma, what type of a traumatic event are 
 
              you referring to?
 
         
 
              A.  Something that would have broken the skin, penetrated 
 
              the retinacular structures thereby causing scarring, and 
 
              this would include his prior surgical procedures.
 
         
 
         (Dr. Schaffer deposition, page 10, line 13 through page 11, line 
 
         21)
 
         
 
              Dr. Schaffer further testified:
 
         
 
              Q.  And what is a "chondromalacial"?
 
         
 
              A.  Chondromalacia is merely a pathological term denoting 
 
              some irregularity of any articular surface or articular 
 
              cartilage.
 
         
 
              Q.  And where in this particular patient was the 
 
              chondromalacia noted to be present?
 
         
 
              A.  The operative report does not identify the specific 
 
              location in this particular patient.  It identifies it as 
 
              being underneath the patella, but not any specific location 
 
              on the patellar articular surface.
 
         
 
              Q.  And what is the cause of a condition like 
 
              chondromalacia?
 
         
 
              A.  There are many causes, and they can be tremendously 
 
              varied.  Any mechanical factors can cause it.  A specific 
 
                                                
 
                                                         
 
                   traumatic incident can cause it. A pathologic process such 
 
              as infection or rheumatic disorder can cause it.
 
         
 
         (Dr. Schaffer deposition, page 13, line 9 through line 24)
 
         
 
              Dr. Schaffer further testified:
 
         
 
              Q.  Just to clear up any question, would a history of 
 
              squatting and locking be the type of trauma that would be 
 
              expected to produce the abnormalities of these three kinds, 
 
              that being the maltracking patella, the tight retinacular 
 
              structures or the plica?
 
         
 
              A.  No.
 
         
 
              Q.  What is the ordinary prognosis for conditions of this 
 
              kind, and once again referring to the maltracking patella, 
 
              tight retinacular structures and plicas?
 
         
 
              A.  These --
 
         
 
              Q.  If it would be easier to do it individual, however you 
 
              want.
 
         
 
              A.  Synovial plicas in a very small percentage of cases 
 
              cause problems.  The tight retinacular structures.which are 
 
              the cause of the maltracking, so they can really be 
 
              categorized as the same thing -- one produces the other -- 
 
              can produce chondromalacia and peripatellar pain.  It 
 
              doesn't always, and it's a very variable situation.  Some 
 
              people have normal patellar tracking and have 
 
              chondromalacia.  Other people have patellar maltracking and 
 
              do not have chondromalacia or peripatellar pain.
 
         
 
              Q.  What about the existence of the two conditions in 
 
              conjunction, the plica and then a maltracking patella?
 
         
 
              A.  This patient had a medial synovial plica which would not 
 
              in any way have any bearing on his maltracking.
 
         
 
              Q.  Would the stresses associated with everyday wear and 
 
              tear be expected to eventually produce symptoms from this -- 
 
              these kinds of conditions?
 
         
 
              A.  That's unable to be predicted.  As I mentioned, 
 
              sometimes it does and sometimes it doesn't.
 
         
 
         (Dr. Schaffer deposition, page 14, line 17 through page 15, line 
 
         21)
 
         
 
              Dr. Schaffer was of the view that claimant could anticipate 
 
         further improvement as of the date his deposition was taken. 
 
         However, he did rate claimant as having a lower extremity 
 
         impairment rating of 20 percent based on guidelines published by 
 
         the American Academy of Orthopaedic Surgeons.  Dr. Schaffer also 
 
                                                
 
                                                         
 
         testified that resolution of symptoms for.the pain produced by 
 
         softening and frayed cartilage can vary greatly from weeks to 
 
         years, and that his rating was based on claimant's 
 
         symptomatology. If claimant's symptoms resolved, then his 
 
         impairment would resolve.  Dr. Schaffer also opined that based on 
 
         claimant's physical findings, he did feel that claimant should be 
 
         able to return to work.
 
         
 
              As to the question of causal connection, Dr. Schaffer 
 
         testified:
 
         
 
              Q.  Do you have an opinion, Dr. Schaffer, based on 
 
              reasonable medical certainty as to whether the knee locking 
 
              incident of September 29th, 1986, as described by the 
 
              patient and subsequent treatment is the cause of his present 
 
              disability?
 
         
 
              A.  I cannot comment on his treatment between the date of 
 
              initial injury and the first presentation to our clinic. 
 
              However, a locking episode such as described can incite a -- 
 
              it can be the cause of the problems that he's having.
 
         
 
              Q.  Okay. We -- the opinion requested would be more than a 
 
              mere possibility.  Is it -- I guess the question would be: 
 
              Can you state with any degree of medical certainty in this 
 
              case as to whether or not the mal -- I'm sorry -- the 
 
              present disability is caused by this knee locking incident 
 
              that he described?
 
         
 
              A.  According to the patient, he had no symptoms prior to 
 
              this, and it is a medically known fact that an incident such 
 
              as the patient experienced can cause the problem.  If his 
 
              account of the the incident is correct, then I would 
 
              attribute the problems that he has now to that incident.
 
         
 
         (Dr. Schaffer deposition, page 20, line 18 through page 21, line 
 
         13)
 
         
 
              Claimant was also seen for evaluation by Barry Lake Fischer, 
 
         M.D.  Dr. Fischer opined on December 9, 1986, that claimant had 
 
         sustained a sprain injury to the left knee which had resulted in 
 
         probable internal derangement of the knee.  There was a loss of 
 
         range of motion and crepitus with flexion and extension of the 
 
         left knee indicating underlying joint pathology.  There was 
 
         residual loss of muscle tone and atrophy of the left thigh.  It 
 
         was Dr. Fischer's opinion that the claimant sustained an injury 
 
         and was still in need of treatment and disabled from work 
 
         return.
 
         
 
              Dr. Fischer's letter does not indicate that he was aware of 
 
         claimant's history of "catching" or locking of the knee before 
 
         the work injury.
 
         
 
              Claimant was also seen for evaluation by Albert R. Coates, 
 
         M.D., on February 18, 1988.  Dr. Coates is an orthopaedic surgeon 
 
                                                
 
                                                         
 
         and a Diplomat of the Board of Orthopaedic Surgery.  Dr. Coates 
 
         found that claimant's left knee revealed scars of arthroscopic 
 
         surgery with a centered patella.  Dr. Coates noted that claimant 
 
         had a long retinacular release which he could palpate.  Claimant 
 
         had no ligamentous instability, although he showed mild 
 
         subpatellar crepitance.  There was no effusion and claimant had 
 
         basically full range of motion, although with pain on resisted 
 
         extension.  Claimant complained of peripatellar pain and pain 
 
         with compression at the patellofemoral joint.  Claimant had 
 
         weakness in extension and flexion.
 
         
 
              Dr. Coates had an impression of patellofemoral joint 
 
         disease. He opined that claimant was predestined to develop 
 
         patellofemoral joint problems because of malalignment and 
 
         maltracking of the quadriceps mechanism.  He felt that claimant 
 
         did carry some persistent pain in the knee, but that he should be 
 
         able to maintain gainful employment.  In a letter of May 25, 1988 
 
         to defendants' attorney, he opined that claimant had reached 
 
         maximum healing at approximately eight weeks after his 
 
         arthroscopic procedure and had suffered a five percent permanent 
 
         partial impairment of the use of his left leg by reason of his 
 
         continued pain.
 
         
 
              Dr. Coates was of the impression that claimant had sustained 
 
         his first symptoms after squatting on September 29, 1986.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
 
 
               
 
                                                         
 
         evidence that he received an injury on September 29, 1986 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury.  [citations 
 
              omitted.] Likewise a personal injury includes a disease 
 
              resulting from an injury....The result of changes in the 
 
              human body incident to the general processes of nature do 
 
              not amount to a personal injury.  This must follow, even 
 
              though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of 
 
              those natural changes does not constitute a personal injury 
 
              even though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                 ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 29, 1986 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
                                                
 
                                                         
 
         Lindahl v. L. O Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The real fighting issue in this case is whether claimant's 
 
         injury arose out of his employment.  Claimant was working on the 
 
         job at a place where he was expected to be and in the course of 
 
         his employment at the time of the incident on September 29, 
 
         1986.
 
         
 
              Obviously, claimant had a preexisting condition.  His own 
 
                                                
 
                                                         
 
         testimony and the history he gave to Drs. Hoffman and Brozovich 
 
         show that claimant had suffered similar "catching" incidents in 
 
         the past.  The work incident involved a "locking" that claimant 
 
         was unable to release.himself.
 
         
 
              The evidence is convincing that claimant suffered an 
 
         incident at work at the time alleged.  Sequelae involved a 
 
         substantial aggravation of claimant's condition, resulting in 
 
         surgery and apparent permanent impairment.  However, claimant was 
 
         only kneeling at his work at the time of his incident and 
 
         suffered no particular trauma.
 
         
 
              Therefore, it is essential first to determine whether 
 
         claimant has sustained his burden of proof in establishing an 
 
         injury arising out of his employment.  That is, has he shown that 
 
         the injury arose out of his employment as opposed to being a 
 
         congenital problem that might have worsened at any time without 
 
         regard to whether he was on the job or not.
 
         
 
              As has been seen, Dr. Chamany prepared a surgeon's report 
 
         containing his opinion that the work accident was the only cause 
 
         of claimant's condition (although he believed the condition was 
 
         merely a strained knee that would not result in permanent 
 
         defect). Although Dr. Chamany did not note any awareness of 
 
         claimant's preexisting history, nurse's notes of September 29 and 
 
         September 30 reflect that claimant denied a history of previous 
 
         injury, but had one incident of "similar popping" one week ago.  
 
         Nurse's notes of September 30 reflect that claimant remarked the 
 
         knee had "locked before but he has always been able to 'work it 
 
         out'."  A copy of those notes were sent to Dr. Chamany, but it is 
 
         unclear whether they were in his possession or had come to his 
 
         attention at the time he prepared the surgeon's report.
 
         
 
              Dr. Schaffer replaced Dr. Walsh as a resident under Dr. 
 
         Palutsis.  Dr. Schaffer opined that claimant's maltracking 
 
         patella was a congenital condition.  Dr. Schaffer opined that a 
 
         causal connection does exist between claimant's locking incident 
 
         at work and his present disability.  However, Dr. Schaffer did 
 
         not directly testify as to whether the locking incident was 
 
         causally connected to claimant's work.  On the other hand, he did 
 
         testify that a history of squatting and locking would not be the 
 
         type of trauma that would be expected to cause the three types of 
 
         abnormalities found in claimant's knee:  the maltracking patella, 
 
         the tight retinacular structures, or the plica.
 
         
 
              Dr. Fischer opined that claimant sustained an injury, but it 
 
         does not appear that he was aware of claimant's preexisting 
 
         history.
 
         
 
              Dr. Coates was of the view that claimant was predestined to 
 
         develop patellofemoral joint problems because of malalignment and 
 
         maltracking of the quadriceps mechanism.
 
         
 
              Of the physicians that have discussed causal connection, it 
 
         appears that Dr. Coates and Dr. Schaffer are of the view that 
 
                                                
 
                                                         
 
         claimant's condition was essentially congenital in nature.  While 
 
         Drs. Chamany and Fischer have opined that a causal connection 
 
         exists between the work incident and claimant's disability, it 
 
         does not appear that Dr. Fischer was aware of claimant's 
 
         preexisting history.  Similarly, it is unclear whether Dr. 
 
         Chamany was aware of the extent of claimant's preexisting 
 
         history, and he was in any event not aware of the structural 
 
         abnormalities in claimant's knee discovered at the time of 
 
         surgery.
 
         
 
              Based upon the foregoing, it is held that claimant has 
 
         failed to meet his burden of proof in establishing an injury 
 
         arising out of his employment with defendant Ruan Leasing 
 
         Company.
 
         
 
                           FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Prior to the alleged work injury of September 29, 1986, 
 
         claimant had a history of "catching" of the left knee, although 
 
         he was on each occasion able to release the knee through his own 
 
         manipulation.
 
         
 
              2.  Claimant suffered an incident at work while kneeling on 
 
         September 29, 1986, although there was no traumatic event or 
 
         unusual twisting.
 
         
 
              3.  Claimant's knee was found to suffer from structural 
 
         abnormalities:  a maltracking patella, tight retinacular 
 
         structures, and a plica.
 
         
 
             
 
                                                         
 
              4.  Based on an absence of previous trauma, claimant's 
 
         structural abnormalities are congenital.
 
         
 
              5.  It has not been shown that claimant's work caused any 
 
         increased danger to claimant or that the work caused the locking 
 
         incident of September 29, 1986, in the sense that this incident 
 
         may have occurred at any time that claimant knelt, and to a 
 
         lesser degree had done so on previous occasions.
 
         
 
                          CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant has failed to establish that he sustained an 
 
         injury arising out of his employment relationship with defendant 
 
         Ruan Leasing Company on September 29, 1986.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Costs of this action shall be assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 21st day of November, 1989.
 
         
 
         
 
         
 
                                        
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         copies To:
 
         
 
         Mr. Lawrence J. Lammers
 
         Attorney at Law
 
         701 Kahl Building
 
         Davenport, Iowa  52801
 
         
 
         Mr. Matthew J. Brandes
 
         Attorney at Law
 
         1200 MNB Building
 
         Cedar Rapids, Iowa  52401
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1402.30
 
                                            Filed November 21, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANCE PIERCE,
 
         
 
              Claimant,
 
         
 
         vs.                                           File No. 835207
 
         
 
         RUAN LEASING COMPANY,                      A R B I T R A T I O N
 
         
 
              Employer,                                D E C I S I O N
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1402.30
 
         
 
              Claimant failed to prove injury arising out of employment 
 
         where he suffered three congenital malformations in knee and had 
 
         history of knee "catching" before similar work incident.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAULETTE L. TREWIN,
 
         
 
              Claimant,                               File No. 835353
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         FROHWEIN STORES, INC.,                       D E C I S I O N
 
              
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 27 1990
 
         AUTO-OWNERS INSURANCE CO.,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Paulette L. 
 
         Trewin against her former employer, Frohwein Stores, Inc., and 
 
         Auto-Owners Insurance Company, the employer's insurance carrier. 
 
         The case was heard and fully submitted at Mason City, Iowa on 
 
         August 2, 1989.  The record in the proceeding consists of 
 
         testimony from Paulette L. Trewin, James Hulne, Lisa Trewin and 
 
         Denise Glosser.  The record contains claimant's exhibits 1 
 
         through 13 and defendants' exhibits A, D, D-1, I, J, K, L, M, N 
 
         and 0.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks additional compensation for temporary partial 
 
         disability, permanent partial disability, additional compensation 
 
         under the fourth unnumbered paragraph of Iowa Code section 86.13, 
 
         interest and costs.  Claimant asserts that she is permanently 
 
         totally disabled and relies upon the odd-lot doctrine.
 
         
 
                               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 previously listed 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.
 
         
 
              Paulette L. Trewin is a 46-year-old woman who lives at New 
 
         Hampton, Iowa.  She is a 1961 high school graduate and was 
 
         formerly licensed as a cosmetologist.  Her work history includes 
 
         bookkeeping, bartending, candling eggs, secretarial work, 
 
         managing an apartment complex and managing a Casey's Convenience 
 
         Store.  She stated that she has been employed most of her life.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On September 30, 1986, claimant was working as the manager 
 
         of a Casey's Convenience Store owned by Frohwein Stores, Inc.  
 
         While assisting in the process of unloading a truck of 
 
         merchandise, she lifted a case of antifreeze and reported hearing 
 
         a "pop" which was accompanied by the onset of pain in her low 
 
         back, left hip and leg.  Claimant continued working, but stated 
 
         that the pain steadily worsened.  On the following day, she 
 
         sought medical treatment from Richard K. Reams, M.D.  After a 
 
         period of conservative treatment consisting of medication, rest 
 
         and physical therapy, she returned to work on approximately 
 
         January 20, 1987. The parties stipulated that claimant had been 
 
         paid her full healing period entitlement running from October 6 
 
         through October 14 and also from October 18, 1986 through January 
 
         19, 1987.
 
         
 
              Claimant seeks temporary partial disability compensation for 
 
         the period running from January 20, 1987 through February 16, 
 
         1987.  Claimant's exhibit 3 which is dated January 27, 1987 
 
         indicates that Ron E. Johnson, M.D., claimant's treating 
 
         orthopaedic surgeon, authorized her to resume work, but stated 
 
         that she needed to be able to sit at times.  Dr. Johnson also 
 
         indicated that if claimant were unable to tolerate working 8-10 
 
         hours per day, she should start working on a part-time basis such 
 
         as four hours per day (claimant's exhibit 3).  Claimant's exhibit 
 
         2, page 4 shows that claimant was authorized to increase her work 
 
         day to nine hours commencing February 16, 1987.  Defendants' 
 
         exhibit N shows that claimant returned to work on January 19, 
 
         1987 and that she worked 36 hours during the first week which 
 
         ended January 24, 1987; she worked 36 hours during the second 
 
         week which ended January 31, 1987; she worked 37 hours during the 
 
         third week which ended February 7, 1987.  Exhibit N shows that 
 
         claimant resumed working nine hours per day on February 9, 1987 
 
         and thereafter worked the normal 50 hours per week which was 
 
         indicated in her contract with the employer to be the normal work 
 
         week. Defendants' exhibit M purports to be a record of claimant's 
 
         earnings, but the undersigned is unable to determine from the 
 
         exhibit whatever amount of wages were paid to claimant during the 
 
         three weeks that she resumed working six hours per day.
 
         
 
              Claimant continued to work as the manager of the Casey's 
 
         store from February 9, 1987 until November 9, 1987 when the store 
 
         was sold to Casey's General Stores, Inc., and her employment was 
 
         terminated (defendants' exhibit L, page 5).  Claimant testified 
 
         that she had been told that she would be retained as an employee, 
 
         but that it was necessary for her to sign a waiver regarding her 
 
         back in order to do so.  Claimant stated that she was advised by 
 
         a representative of Auto-Owners Insurance Company that she should 
 
         not sign the waiver.  She refused to do so and her employment was 
 
         not continued.
 
         
 
              Since November 9, 1987, claimant has engaged in extensive 
 
         job seeking activities.  She has had the services of certified 
 
         rehabilitation consultant Denise Glosser.  At the time of 
 
         hearing, she had been unsuccessful in obtaining any employment 
 
         despite searching as far away as the Waterloo and Charles City 
 
         areas.  She obtained a temporary job as a receptionist and 
 
         bookkeeper in September of 1988 (defendants' exhibit D, pages 62, 
 
         69 and 74). Claimant was initially hired to be the manager of a 
 
         Coastal Mart store.  She actually started work, but the decision 
 
         to hire her was then reversed due to "the legalities involved" 
 
         with her back condition (defendants' exhibit D-1, page 17).  At 
 
         the time of hearing, claimant had still not found any work 
 
         despite her very extensive search and ample qualifications.  
 
         Claimant had been under serious consideration for several 
 
         positions, but was never the person actually selected for the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         job.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Denise Glosser expressed the opinion that claimant's better 
 
         chances for obtaining employment were in the areas of 
 
         secretarial, bookkeeping, receptionist or convenience store 
 
         manager.  Glosser stated that earnings in those fields in the 
 
         area of claimant's residence would range from minimum wage to 
 
         approximately $6.50 per hour.  Claimant stated that bookkeeping 
 
         is an occupation with relatively frequent job openings.  Glosser 
 
         felt that there was a stable market for claimant's work skills in 
 
         the area where she resides and that claimant will be able to 
 
         obtain employment ultimately, although she had no opinion how 
 
         long it would take for claimant to obtain work.
 
         
 
              Claimant testified that she continues to experience pain in 
 
         her low back, left hip and left leg.  She stated that at times 
 
         the pain is slight while at other times it worsens.  She stated 
 
         that activity causes it to worsen.  Claimant reported having a 
 
         problem with her right knee from an injury that occurred in 1980 
 
         or 1982. She stated that she has thrombophlebitis in it, but that 
 
         it does not cause her any difficulty in standing, although it 
 
         does cause some problem with bending.
 
         
 
              Claimant testified that since the injury she has 
 
         discontinued many of her former recreational activities including 
 
         bowling, dancing, boating and riding in a car for more than 15 or 
 
         20 miles. Claimant stated that her daughter and Jim Hulne assist 
 
         in performing the housework in the home where they live.  
 
         Claimant wears a TENS unit and a back brace at times.
 
         
 
              Lisa Trewin, claimant's daughter, and James Hulne, who 
 
         resides with claimant, both testified that prior to claimant's 
 
         injury she had been a quite active individual, but that she has 
 
         now ceased most recreational activities.  Lisa and James 
 
         confirmed that they now perform a substantial part of the 
 
         housework.  James testified that he now pays all of the household 
 
         expenses in the home where they live, but that prior to the time 
 
         claimant was injured, she had shared in the expenses.
 
         
 
              Claimant lost her car shortly prior to hearing and is now 
 
         restricted in job seeking to places in New Hampton to which she 
 
         can walk.  Both Lisa and James stated that claimant appears to be 
 
         in pain a great deal of the time.
 
         
 
              Claimant testified that when she was initially off work, 
 
         benefits were not paid to her until December of 1986 when she 
 
         received ten weeks of benefits in a lump sum.  Claimant was 
 
         notified by a letter dated February 10, 1989 that she would 
 
         receive three more weeks of permanent partial disability 
 
         compensation (claimant's exhibit 13).  Claimant testified that 
 
         she last received benefits on March 6, 1989.
 
         
 
              Claimant's medical treatment has been provided by family 
 
         practitioner Richard K. Reams, M.D., and R. E. Johnson, M.D., an 
 
         orthopaedic surgeon.  Claimant has been evaluated by orthopaedic 
 
         surgeon John R. Walker, M.D., by James L. Blessman, M.D., and 
 
         Marshall Flapan, M.D., at the Mercy Pain Clinic, and by 
 
         neurosurgeon Thomas Carlstrom, M.D.  Their respective assessments 
 
         of claimant's condition. are not irreconcilable.  Dr. Reams 
 
         indicated that claimant should not lift more than 25 pounds, that 
 
         she needs to avoid prolonged standing and that she should sit and 
 
         change positions frequently (claimant's exhibit 4).  Dr. Johnson 
 
         fitted claimant with the lumbar corset and recommended that she 
 
         follow a lifting limit of 20 pounds and avoid repetitive lifting. 
 
         He recommended that she alternate between sitting and ambulating 
 
         positions (claimant's exhibit 9).  Dr. Johnson rated claimant as 
 
         having a 15 percent permanent impairment of the body as a whole 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (claimant's exhibit 6).  Dr. Walker examined claimant in 
 
         February, 1988 and diagnosed her condition as a lumbosacral 
 
         sprain and left sacroiliac sprain.  He stated that she has a 
 
         temporary impairment of 35 percent, but that it could be reduced 
 
         with appropriate treatment (claimant's exhibit 7).  Dr. Blessman 
 
         reported that claimant's condition was diagnosed as chronic 
 
         lumbosacral strain and that she has a permanent impairment of 
 
         5-10 percent of the body as a whole.  X-rays, a CT scan and an 
 
         MRI were all interpreted as normal (claimant's exhibit 8).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Carlstrom diagnosed claimant's condition as myofascial 
 
         low back pain (defendants' exhibit I, page 7).  He felt that the 
 
         MRI scan showed a possible small herniated disc at the L4-5 level 
 
         on claimant's left side (defendants, exhibit I, page 6).  Dr. 
 
         Carlstrom indicated, however, that the MRI findings did not 
 
         correlate with the symptoms which claimant expressed (defendants' 
 
         exhibit I, pages 6, 15 and 16).  Dr. Carlstrom assigned a six 
 
         percent permanent impairment rating of the whole person due to 
 
         the low back disorder which was caused by the September, 1986 
 
         lifting incident (defendants' exhibit I, pages 8 and 9).  He felt 
 
         that claimant could work if she avoids heavy physical work, heavy 
 
         lifting, cramped postures and prolonged sitting or standing.  He 
 
         felt that,she could lift a maximum of 30-35 pounds or 20-25 
 
         pounds repetitively (defendants, exhibit I, pages 9, 10 and 24).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 30, 1986 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant denied having sustained any injuries to her back 
 
         either prior or subsequent to the stipulated September 30, 1986 
 
         injury.  Dr. Carlstrom expressed the opinion that a causal 
 
         relationship existed between that injury and claimant's permanent 
 
         back problems.  No contrary evidence appears in the record.  It 
 
         is therefore determined that the September 30, 1986 lifting 
 
         injury is a proximate cause of the permanent disability which 
 
         currently afflicts Paulette Trewin due to the condition of her 
 
         low back.
 
         
 
              It was stipulated in the prehearing report that claimant had 
 
         been paid all healing period compensation which was due at the 
 
         stipulated rate of $184.13 per week.  Claimant seeks temporary 
 
         partial disability compensation.  She would be entitled to 
 
         receive temporary partial disability compensation under Code 
 
         section 85.31 if she were paid less during the first three weeks 
 
         of her return to work than her normal salary.  From the record 
 
         made in this case, it is not possible for the undersigned to make 
 
         an appropriate computation as the undersigned is unable to 
 
         determine whatever amount it was that claimant was paid when she 
 
         returned to work during the period of January 19, 1987 through 
 
         February 7, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis 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.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant seeks compensation for permanent disability and 
 
         relies upon the odd-lot doctrine.  Claimant's physical impairment 
 
         and physical activity restrictions are of the type which should 
 
         not render her incapable of working as a convenience store 
 
         manager, receptionist, bookkeeper or secretary.  These are the 
 
         types of work which she performed prior to the injury and the 
 
         types of work which she still appears to be capable of 
 
         performing. The geographical area of her residence is primarily 
 
         rural in nature and it would be expected that job openings would 
 
         not be particularly frequent.  Claimant's back injury has been, 
 
         however, an extremely detrimental factor in her ability to 
 
         maintain or obtain employment.  She was apparently able to manage 
 
         the Casey's store since she did so for several months after her 
 
         injury.  The real problems in this case which affect this 
 
         claimant are not so much her physical limitations as the limited 
 
         number of job opportunities in the area of her residence and the 
 
         reluctance of employers to hire an employee with known physical 
 
         ailments, particularly back problems.
 
         
 
              It is determined that Paulette Trewin, despite her exemplary 
 
         job search, has not established a prima facie showing of 
 
         permanent, total disability.  Her physiological injury is simply 
 
         not sufficient to characterize her as being totally disabled.  On 
 
         the other hand, the fact that she was able to perform her job as 
 
         a store manager for several months does not establish that she 
 
         sustained no permanent loss of earning capacity as a result of 
 
         her injuries.  Claimant now has medically imposed activity 
 
         restrictions which will eliminate her from some predominantly 
 
         light or sedentary positions which have some lifting 
 
         requirements. They eliminate her from jobs which require 
 
         prolonged standing. They eliminate her ability to change 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         occupational fields from those in which she has been employed in 
 
         the past to those which might require more physical activity.  In 
 
         areas of.limited job availability, the ability to change one's 
 
         field of work is a quite valuable factor.  When all the material 
 
         factors of industrial disability are considered, it is determined 
 
         that Paulette L. Trewin has sustained a 30 percent permanent 
 
         partial disability as a result of the injuries she sustained on 
 
         September 30, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In making this assessment, it is recognized that an award of 
 
         permanent partial disability compensation is not a penalty 
 
         imposed on the employer when an employee loses her employment as 
 
         a result of the injury.  An employer has an opportunity to limit 
 
         the amount of damages which it pays in the form of an award of 
 
         industrial disability compensation by keeping the employee 
 
         employed and avoiding the often harsh, full economic impact which 
 
         often accompanies loss of a job.  When an employer does so, it is 
 
         entitled to share in the benefits which result from the continued 
 
         employment and earnings of the employee.  When the employment 
 
         does not continue and the employee is forced to reenter the 
 
         employment market and experiences a substantial loss of earnings, 
 
         the employer is required to pay compensation for the full loss of 
 
         earning capacity as is demonstrated, to a large degree, by the 
 
         employee's actual earnings, or lack thereof.
 
         
 
              Claimant seeks interest.  Interest is simply an adjustment 
 
         made for the time value of money.  Since defendants delayed 
 
         payment of claimant's initial healing period compensation, 
 
         claimant is entitled to recover interest on that healing period 
 
         compensation from the date each payment came due until the date 
 
         of the ten-week lump sum payment.  Claimant is also entitled to 
 
         recover interest on permanent partial disability compensation 
 
         commencing January 19, 1987, the day claimant returned to work at 
 
         six hours per day.  [In the event that temporary partial 
 
         disability is paid for the time span running from January 19, 
 
         1987 through February 7, 1987, defendants' obligation to pay 
 
         permanent partial disability compensation commenced February 9, 
 
         1987 (defendants' exhibit N, page 7).]  As with the healing 
 
         period compensation, claimant is entitled to recover interest 
 
         from the date each payment came due until the date it is actually 
 
         paid. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Farmers 
 
         Elevator Co. Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); 
 
         section 85.30, Code of Iowa; Benson v. Good Samaritan Center, 
 
         file number 765734 (ruling on rehearing, October 18, 1989).
 
         
 
              Claimant seeks a penalty under the fourth unnumbered 
 
         paragraph of section 86.13.  It is often difficult to assess the 
 
         appropriate amount of permanent partial disability which results 
 
         from an injury.  Claimant's continued employment as the Casey's 
 
         store manager was evidence of a small amount of industrial 
 
         disability, as opposed to the amount which was actually paid 
 
         voluntarily or awarded herein.  The failure to pay more than 13 
 
         percent is determined to have been the result of a reasonable, 
 
         good faith evaluation of the case.  A penalty is therefore not 
 
         warranted for the failure to voluntarily pay a greater amount.
 
         
 
              There was a delay in the commencement of permanent partial 
 
         disability compensation until approximately the time that 
 
         claimant's employment was terminated.  Again, the failure to 
 
         recognize and pay the claim promptly when claimant returned to 
 
         work is not found to have been a result of unreasonable action or 
 
         unfair claim handling practices.  The prehearing report indicates 
 
         that payments were commenced on December 8, 1987.  Claimant's 
 
         exhibit 5 indicates that it was on December 8, 1987 that Dr. 
 
         Johnson provided his permanent impairment rating.  When the 
 
         employee has returned to work, without any loss of actual 
 
         earnings and without any rating of physical impairment by a 
 
         physician, it is not necessarily unreasonable for defendants to 
 
         fail to make payment of permanent partial disability 
 
         compensation.  The time at which payments were commenced was not 
 
         an unreasonable time for defendants to have realized that some 
 
         permanent partial disability existed.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A problem with the timeliness of payments does exist in this 
 
         case.  First, the notice of termination of benefits as shown by 
 
         claimant's exhibit 13 appears to have been given approximately 
 
         three weeks prior to the payment of the last weekly benefit, 
 
         rather than the 30 days which is required by the statute.  
 
         Further, when initially adjusting the claim and deciding to pay 
 
         permanent partial disability compensation, it should have been 
 
         recognized that the payment should have commenced at the end of 
 
         the healing period.  In December of 1987, when the decision was 
 
         made to pay benefits, there should have been a lump sum payment 
 
         paid, together with interest, to pay the amount which had then 
 
         accrued and the remaining balance then paid in weekly payments.  
 
         From the record in this case it appears as though payments were 
 
         merely commenced on December 8, 1987 and then paid out on a 
 
         weekly basis over the next 65 weeks ending on approximately March 
 
         6, 1989 as shown in section 9 of the prehearing report.  The 
 
         record in this case contains no showing of any reasonable cause 
 
         or excuse for the failure to pay the accrued amounts in a lump 
 
         sum.  A penalty will therefore be imposed for the delay which 
 
         resulted from commencing weekly payments in December of 1987, 
 
         rather than paying an initial lump sum and also for giving less 
 
         than 30 days' notice of the termination of weekly benefits.
 
         
 
              It is not required that the full 50 percent penalty be 
 
         imposed in every case, although it has often been the 
 
         undersigned's practice to do so when weekly benefits are 
 
         unreasonably denied.  In this case, a penalty in the total amount 
 
         of $1,000.00, approximately 10 percent, is imposed rather than 
 
         the full 50 percent of the approximate $10,000.00 of benefits 
 
         which were unreasonably delayed.  Of the total $1,000.00, the 
 
         amount is attributable first to provide so much additional 
 
         compensation as is necessary to provide a full 30 days of 
 
         payments before the weekly permanent partial disability 
 
         compensation was terminated. The balance of the $1,000.00 is the 
 
         penalty for the unreasonable delay in commencement and premature 
 
         termination of benefits, in particular the failure to pay the 
 
         accrued amount in a lump sum once the determination to make 
 
         voluntary payments had been made and the termination on less than 
 
         30 days' notice.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Paulette L. Trewin, a resident of New Hampton, Iowa, was 
 
         injured at New Hampton, Iowa when lifting in the course of her 
 
         employment with Frohwein Stores, Inc.
 
         
 
              2.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that 
 
         she performed at the time of injury from October 6 through 
 
         October 14 and from October 18, 1986 through January 19, 1987, as 
 
         stipulated in the prehearing report, when claimant returned to 
 
         work.
 
         
 
              3.  As a result of the injury, Paulette Trewin is restricted 
 
         in her ability to lift, carry, stand or sit for prolonged periods 
 
         of time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  Claimant has experienced a 30 percent reduction of her 
 
         earning capacity as a result of the September 30, 1986 injury.
 
         
 
              5.  Claimant's weekly compensation for permanent partial 
 
         disability was terminated upon less than 30 days' written notice 
 
         without her actually returning to work.
 
         
 
              6.  It was unreasonable for defendants to delay claimant's 
 
         permanent partial disability attributable to the period of time 
 
         running from January 20, 1987 through December 8, 1987 by paying 
 
         it in weekly benefits rather than paying it to claimant in a lump 
 
         sum, once the decision to pay permanent partial disability 
 
         compensation had been made.
 
         
 
              7.  A penalty of $1,000.00 is appropriate for the premature 
 
         termination of benefits and the delay in payment of permanent 
 
         partial disability compensation that occurred in this case.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant is entitled to recover 150 weeks of 
 
         compensation for permanent partial disability.
 
         
 
              3.  Claimant is not entitled to recover compensation for 
 
         temporary partial disability as the record does not contain any 
 
         evidence upon which the appropriate computation of the amount due 
 
         can be made.
 
         
 
              4.  Claimant is entitled to recover a penalty in the amount 
 
         of $1,000.00 for the unreasonable termination of permanent 
 
         partial disability compensation with less than 30 days of advance 
 
         written notice and for the delay in payment of permanent partial 
 
         disability compensation.
 
         
 
              5.  Claimant is entitled to recover interest on all weekly 
 
         compensation which was not paid at the time it came due.
 
         
 
              6.  Claimant is entitled to recover the costs of this action 
 
         including $2.00 for the cost of service of the original notice 
 
         and petition and $85.00 for the cost of a medical report from Dr. 
 
         Walker.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred fifty (150) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of one hundred eighty-four and 
 
         13/100 dollars ($184.13) per week payable commencing January 20, 
 
         1987.  The entire amount thereof is now past due and owing and 
 
         shall be paid to claimant in a lump sum together with interest 
 
         computed from the date each weekly payment came due until the 
 
         date of actual payment pursuant to Iowa Code section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant interest 
 
         on the healing period compensation which was delayed from the 
 
         date each payment came due until the date of actual payment 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
         thousand and 00/100 dollars ($1,000.00) as and for a penalty 
 
         under the fourth unnumbered paragraph of Iowa Code section 86.13.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action including two and 00/100 dollars ($2.00) for the cost of 
 
         certified mail of the original notice and petition and 
 
         eighty-five and 00/100 dollars ($85.00) for the cost of a medical 
 
         report from Dr. Walker pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of  February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney a-E Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1801.1, 1803, 3003, 4000.1
 
                                            4000.2, 4100
 
                                            Filed February 27, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAULETTE L. TREWIN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 835353
 
         FROHWEIN STORES, INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         AUTO-OWNERS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1801.1, 3003
 
         
 
              The evidence introduced failed to contain wage payment 
 
         information from which an award of temporary partial disability 
 
         could be computed.  The claim for temporary partial disability 
 
         was therefore denied.
 
         
 
         1803, 4100
 
         
 
              Claimant, who had been out of work for approximately one and 
 
         one-half years, despite extensive good faith job seeking, was 
 
         held to not be an odd-lot employee because she clearly had 
 
         marketable job skills.  Claimant awarded 30 percent permanent 
 
         partial disability.
 
         
 
         4000.1, 4000.2
 
         
 
              Defendants did not initially commence voluntary payment of 
 
         permanent partial disability and when they terminated payment of 
 
         permanent partial disability, they did so with less than 30 days' 
 
         notice.  When permanent partial disability payments were 
 
         commenced, it was done without paying benefits which had accrued 
 
         from the end of the healing period to the date that the decision 
 
         to commence payments was made.  Weekly payments were merely 
 
         commenced.  It was held that failure to pay the accrued benefits 
 
         in a lump sum was unreasonable.  A penalty of $1,000.00, 
 
         approximately ten percent of the amount delayed, was assessed for 
 
         the delay and premature termination.