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.