Page   1
 
            
 
            
 
            
 
            
 
            5-3002; 5-1803; 5-4000.2; 5-3800
 
            Filed March 24, 1992
 
            Byron K. Orton
 
            JMI
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            RONALD LEE MEYERS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :     File Nos. 881251/913214
 
            HOLIDAY EXPRESS CORPORATION,  :                
 
                                          :
 
                 Employer,                :            A P P E A L
 
                                          :
 
            and                           :          D E C I S I O N
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-3002 - Rate of compensation - weekly benefit rate
 
            In computing claimant's weekly rate of compensation, short 
 
            weeks were not included in the 13 weeks prior to claimant's 
 
            injury for determining rate under Iowa Code section 
 
            85.36(6); Lewis v. Aalf's Mfg. Co., I Iowa Indus. Comm'r 
 
            Rpt. 206, 207 (Appeal Decision 1980) and Anderson v. 
 
            Highrise Construction Specialists, Inc., File No. 850996, 
 
            (Iowa Industrial Commissioner Appeal Decision July 31, 1990.
 
            
 
            5-1803 - Permanent partial disability benefits
 
            Using the AMA Guides to the Evaluation of Permanent 
 
            Impairment, claimant's treating physician gave him a 22 
 
            percent impairment rating, apportioning 10 percent to the 
 
            first injury and 12 percent to the second injury.  Lay 
 
            testimony was presented in an attempt to show that 
 
            claimant's loss of use of his left knee exceeded doctor's 
 
            assessment.  This was rejected and doctor's rating accepted 
 
            as more consistent with the evidence presented.
 
            
 
            5-4000.2 - Penalty benefits
 
            In most cases, the time between accrual of the obligation 
 
            and payment of benefits was less than one month.  The 
 
            longest delay was slightly over two months.  The length of 
 
            time involved does not warrant imposition of a penalty.  
 
            Curtis v. Swift Independent Packing, IV Iowa Industrial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Commissioner Report 88, 93 (1984).
 
            
 
            5-3800 - Interest
 
            
 
                 As has been done in previous decisions, the parties 
 
            were directed to calculate interest on any weekly benefits 
 
            not paid when due based on Iowa Code section 85.30 and if 
 
            further intervention by this agency is needed to resolve any 
 
            dispute as to such calculations, the parties were warned in 
 
            advance of the possibility that a certified public 
 
            accountant may be retained as an expert and the cost thereof 
 
            assessed to one or several parties as may seem just.  
 
            Terwilliger v. Snap-On Tools Corp., Appeal Decision filed 
 
            May 24, 1991 (presently on Judicial review) and Simonson v. 
 
            Snap-On Tools Corp., Arbitration Decision filed on January 
 
            31, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD LEE MEYERS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        File Nos. 881251;
 
                                          :         913213 & 913214
 
            HOLIDAY EXPRESS CORPORATION,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ronald 
 
            Lee Meyers, claimant, against Holiday Express Corporation, 
 
            employer, and Liberty Mutual Insurance Company, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of injuries sustained on March 
 
            15, 1988 and December 21, 1988.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on September 12, 1991, in Storm Lake, Iowa.  
 
            The record was considered fully submitted at the close of 
 
            the hearing.  The record in this case consists of joint 
 
            exhibits I-II; claimant's exhibits A-E; defendants' exhibits 
 
            1-5; claimant's testimony and testimony from the following 
 
            witnesses:  Diane Meyers, Terry McCubbins, Glen Menssen, Tim 
 
            Egeland, Michael Sjoblom and Sheila Schichtl.  At the 
 
            hearing, the undersigned excluded from evidence pages 1-15 
 
            of exhibit A and pages 44-48 of exhibit D.  Taken under 
 
            advisement was the relevancy of claimant's exhibit B.  After 
 
            reviewing the total record in this case, exhibit B is 
 
            determined to be relevant and material to some of the issues 
 
            in this case and therefore admitted into evidence.
 
            
 
                 At the hearing, claimant moved to dismiss litigation in 
 
            File No. 913213.  The verbal dismissal was accepted by the 
 
            undersigned deputy and this decision orders petition number 
 
            913213 dismissed with prejudice.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 The parties have stipulated as follows:
 
            
 
                  1.  That an employer-employee relationship existed 
 
            between claimant and Holiday Express Corporation;
 
            
 
                  2.  That claimant sustained injuries on March 15, 1988 
 
            and December 21, 1988, which arose out of and in the course 
 
            of his employment with employer;
 
            
 
                  3.  That claimant's March 15, 1988 and December 21, 
 
            1988, injuries are causally connected to temporary and 
 
            permanent disabilities;
 
            
 
                  4.  That claimant's March 15, 1988 injury entitles him 
 
            to weekly compensation for healing period from March 21 
 
            through May 15, 1988 and July 8 through July 11, 1988;
 
            
 
                  5.  That claimant's March 15, 1988 injury entitles him 
 
            to temporary partial disability benefits for the period from 
 
            July 12 through August 5, 1988;
 
            
 
                  6.  That claimant's December 21, 1988 injury entitles 
 
            him to weekly compensation benefits for the healing period 
 
            from December 23, 1988 through July 24, 1989;
 
            
 
                  7.  That the type of permanent disability is a 
 
            scheduled member disability;
 
            
 
                  8.  That the commencement dates for permanent partial 
 
            disability are May 16, 1988 and July 25, 1989;
 
            
 
                  9.  That for the purpose of computing the rate of 
 
            weekly compensation benefits, claimant is married and 
 
            entitled to five exemptions.
 
            
 
                 10.  That at the time of his March 15, 1988 injury, 
 
            claimant's gross weekly earnings were $369.77;
 
            
 
                 11.  That at the time of his December 21, 1988 injury, 
 
            claimant's gross weekly earnings were $478.00; and,
 
            
 
                 12.  That claimant has previously paid expenses in the 
 
            amount of $244.66.
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            September 12, 1991, the following issues have been submitted 
 
            for resolution:
 
            
 
                 1.  The rate of compensation relevant to the injury sus
 
            tained on March 15, 1988;
 
            
 
                 2.  Whether claimant is entitled to healing period 
 
            benefits from August 25, 1989 through January 9, 1990, as a 
 
            result of his December 21, 1988 injury;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if any;
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 4.  The extent of credit for weekly compensation paid 
 
            by defendants; and,
 
            
 
                 5.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered the testimony 
 
            at the hearing, arguments made, evidence contained in the 
 
            exhibits herein and makes the following findings:
 
            
 
                 Claimant is a 32 year old married man with three 
 
            dependent children.  He completed the twelfth grade of 
 
            school.  Since September 1990, he has been a full time 
 
            college student.  On November 15, 1987, he went to work for 
 
            Holiday Express Corporation as an over-the-road truck 
 
            driver.  He was a student driver until January 12, 1988, 
 
            when he completed his training program.  He injured his left 
 
            knee on March 15, 1988 and was off work until May 15, 1988.  
 
            He returned to work and reinjured his left knee on December 
 
            21, 1988.  He was off work until July 24, 1989.  He returned 
 
            to work as a truck driver until he quit on August 15, 1989.  
 
            He has not been employed since that time.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            on April 22, 1977, claimant was playing soccer and tore 
 
            ligaments in his left knee.  An arthrotomy and repair of 
 
            torn ligaments was performed on April 28, 1977 (Exhibit I, 
 
            pages 1-5).
 
            
 
                 In April 1982, claimant suffered a partial tear of the 
 
            anterior cruciate of his left knee.  On April 6, 1982, he 
 
            underwent left arthroscopy (Ex. I, p. 8).
 
            
 
                 On March 15, 1988, claimant sustained a left knee 
 
            injury while unloading a truck.  He initially saw R. P. 
 
            Bose, M.D., who referred him to J. Michael Donohue, M.D., 
 
            for evaluation on March 22, 1988.  A diagnostic arthroscopy 
 
            was performed on March 24, 1988 and an acute tear of the 
 
            left lateral meniscus was noted.  Also noted was an old 
 
            chondral lesion in both femoral condyles and an anterior 
 
            cruciate ligament (Ex. I, pp. 10-13).
 
            
 
                 Dr. Donohue put claimant in an aggressive 
 
            rehabilitation program.  When examined on May 10, 1988, 
 
            claimant was back to full activities.  Dr. Donohue released 
 
            him to return to work without restrictions as of May 16, 
 
            1988 (Ex. I, p. 18).
 
            
 
                 In June 1988, claimant twisted his left knee while 
 
            unloading a truck.  He was examined by Dr. Donohue on June 
 
            28, 1988, and diagnosed with probable breakdown of 
 
            adhesions.  His work activities were modified and physical 
 
            therapy resumed.  He was released for full duty with no 
 
            limitations as of August 6, 1988 (Ex. I, pp. 20-28).
 
            
 
                 Claimant twisted his left knee on December 21, 1988, 
 
            while climbing into his truck.  He was seen by David M. 
 
            Lindgren, M.D., on December 28, 1988, and a possible medial 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            meniscus tear was assessed.  Dr. Lindgren took claimant off 
 
            work because he was unable to fully extend his knee.  Dr. 
 
            Donohue saw claimant for follow-up evaluation and 
 
            reinstituted his home exercise program.  Claimant's 
 
            condition did not improve with conservative therapy and on 
 
            February 14, 1989, he underwent a diagnostic arthroscopy.  
 
            The results showed:  (1) Osteochondral flap right 
 
            mediofemoral condyle; (2) Partial anterior cruciate ligament 
 
            strain; and (3) Previous medial and lateral meniscectomies 
 
            and early degenerative changes in both the medial and 
 
            lateral compartments (Joint Ex. l, p. 38).  The condyle 
 
            lesion was excised and debrided down to bleeding subchondral 
 
            bone.  Claimant was treated postoperatively and put on a 
 
            nonweight bearing status.  On March 14, 1989, claimant was 
 
            started on weight-bearing with crutches.  During the period 
 
            of rehabilitation, claimant experienced intermittent 
 
            flare-ups and some improvement in his condition.  On July 
 
            18, 1989, he was fitted with a Lenox-Hill brace.  Dr. 
 
            Donohue released claimant to return to work on July 25, 
 
            1989, with no restrictions as to number of hours worked per 
 
            day and no weight lifting restrictions.  However, he was 
 
            instructed to wear a left knee brace and not to load or 
 
            unload the truck (Ex. I, pp. 29-58).
 
            
 
                 After quitting his job on August 15, 1989, claimant pre
 
            sented to Dr. Donohue on August 28, 1989.  Claimant related 
 
            that he quit his job because he was asked to work in excess 
 
            of 19 consecutive days.  At this time, Dr. Donohue 
 
            recommended that claimant limit his time at work to five 
 
            days per week (Ex. I, p. 65).
 
            
 
                 In response to inquiry from claimant's attorney, Dr. 
 
            Donohue stated on October 20, 1989, that in his opinion 
 
            claimant sustained a lateral meniscus tear of the left knee 
 
            on March 15, 1988, which was a new injury.  In addition, a 
 
            defect of the medial femoral condyle and mild anterior 
 
            cruciate laxity attributable to his previous injury was 
 
            evident (Ex. I, p. 70).  Dr. Donohue further opined that the 
 
            second arthroscopy performed on February 14, 1989, showed a 
 
            new injury to the medial femoral condyle which, although 
 
            abnormal at the time of the first arthroscopy, did not have 
 
            extensive damage to the cartilage.  In addition, claimant 
 
            sustained further injury to a previously injured anterior 
 
            cruciate ligament (Ex. I, pp. 67-70).
 
            
 
                 In January 1990, Dr. Donohue gave claimant a 22 percent 
 
            permanent impairment rating to the left knee.  He attributed 
 
            10 percent to the lateral meniscus tear sustained in March 
 
            of 1988 and the remaining 12 percent to the injury of 
 
            December 1988 (Ex. I, p. 77).
 
            
 
                 On May 24, 1991, claimant saw Robert Weatherwax, M.D., 
 
            for a disability examination.  Based on clinical and 
 
            laboratory findings, Dr. Weatherwax tentatively rated 
 
            claimant at five percent permanent impairment from loss of 
 
            meniscus substance and an additional 25 percent lower limb 
 
            impairment based on loss of the anterior cruciate ligament 
 
            (Ex. I, p. 84).
 
            
 
                                conclusions of law
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 The first issue to be determined involves the proper 
 
            rate of compensation in File No. 881251 in claimant's March 
 
            15, 1988 injury.  Claimant correctly argues that the period 
 
            from December 20, 1987 through January 1, 1988, should not 
 
            be included in computing his rate of compensation.  Claimant 
 
            testified that this time off work was not a typical 
 
            scheduled time off.  At that time he was a student driver 
 
            and in training.  His lead driver decided not to work during 
 
            that period of time and since claimant could not take the 
 
            truck out on his own, he was forced to take the eight days 
 
            off.  Defendants presented no evidence to the contrary.
 
            
 
                 The parties were unable to reach an agreement as to the 
 
            rate of compensation in the event of an award.  Applicable 
 
            wage information was submitted.  Iowa Code section 85.36 
 
            provides in pertinent part:
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's  employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar:
 
            
 
                     ...
 
            
 
                    6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 
                 weeks immediately preceding the injury.
 
            
 
                 This agency has determined that 85.36 must be read in 
 
            light of the unnumbered paragraph and that partial weeks are 
 
            not to be considered.  Schotanus v. Command Hydraulics, 
 
            Inc., I Iowa Industrial Commissioner Report 294 (1981).  
 
            Vacation periods have been ignored in selecting the 13 weeks 
 
            to be used for rate purposes.  Lewis v. Aalf's Manufacturing 
 
            Co., I Iowa Industrial Commissioner Report 206 (Appeal 
 
            Decision 1980) (District Court affirmed);  Anderson v. 
 
            Highrise Construction Specialists, Inc., File No. 850996, 
 
            (Iowa Industrial Commissioner Appeal Decn. July 31, 1990).
 
            
 
                 Excluding the unrepresentative week from December 20, 
 
            1987 through January 1, 1988, claimant's gross weekly 
 
            earnings were $369.77.  Using the Guide to Iowa Workers' 
 
            Compensation Claim Handling benefit schedule for July 1, 
 
            1987, the weekly compensation rate for a married employee 
 
            with five exemptions is $247.55 per week.  Therefore, the 
 
            proper rate of weekly compensation in claimant's March 15, 
 
            1988 injury is determined to be $247.55 per week.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to additional healing period benefits as a result 
 
            of his December 21, 1988 work injury.  Claimant contends 
 
            that he is entitled to additional healing period benefits 
 
            from August 25, 1989 through January 9, 1990.
 
            
 
                 Section 85.34(l), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until:  (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or, (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 The record clearly indicates that on July 25, 1989, Dr. 
 
            Donohue released claimant to return to work without 
 
            limitation as to maximum hours a day of weight lifting.  He 
 
            was restricted only as to loading or unloading and required 
 
            to wear his left knee brace (Ex. I, p. 58).  In response to 
 
            an inquiry from claimant and his attorney, Dr. Donohue 
 
            reported on September 27, 1989, as follows:
 
            
 
                 I again related to the patient that in reviewing 
 
                 my notes, I have not noted a specific restriction 
 
                 with respect to the hours work on the patient's 
 
                 part after returning to work.  I related to the 
 
                 patient as I have previously related to his 
 
                 attorney that I rely on my written notes in these 
 
                 matters and that it will be my testimony in any 
 
                 legal proceedings related to this matter that 
 
                 specific restriction on the allowed hours worked 
 
                 or days in a row worked was not given when the 
 
                 patient was released for work on 7-25-89.
 
            
 
            (Jt. Ex. 1, p. 71)
 
            
 
                 Claimant testified that upon his return to work he 
 
            worked five days from July 25 through July 29, 1989 and 16 
 
            consecutive days starting July 31, 1989.  He further stated 
 
            that on August 14, 1989, employer requested that he continue 
 
            to drive another hour but he refused and quit via telephone 
 
            from Sioux City, Iowa.  Sheila Schichtl, safety director at 
 
            Holiday Express, testified that claimant came to employer's 
 
            office two or three days later and wanted his job back.  
 
            However, the company refused to rehire him.
 
            
 
                 Claimant returned to Dr. Donohue on August 25, 1989, 
 
            with right knee complaints.  At this time, Dr. Donohue 
 
            limited claimant to working five days in a working week (Ex. 
 
            I, p. 65).  In response to a letter from claimant's 
 
            attorney, Dr. Donohue wrote on January 17, 1990:  "With 
 
            respect to the actual healing, the patient's healing period 
 
            with respect to his most recent injury was completed on 
 
            January 9, 1990....I again believe the patient has reached 
 
            maximal medical improvement." (Ex. l, p. 74).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Despite claimant's contentions to the contrary, the 
 
            record speaks for itself.  Dr. Donohue released claimant to 
 
            return to work on July 25, 1989, without any specific 
 
            restrictions as to the allowed hours worked or consecutive 
 
            days worked.  This determination on the part of Dr. Donohue 
 
            that claimant was medically capable of returning to 
 
            substantially similar employment and the fact that claimant 
 
            did return to his prior work activity terminates his healing 
 
            period.  Claimant admitted and employer corroborated that he 
 
            quit his job on August 14, 1989.  No physician authorized 
 
            claimant to be off work at that time.  Therefore, claimant 
 
            has failed to prove by a preponderance of the evidence 
 
            further entitlement to healing period benefits.
 
            
 
                 Also to be determined is the extent of claimant's 
 
            entitlement to permanent partial disability benefits.
 
            
 
                 Dr. Donohue, claimant's treating physician, gave him a 
 
            28 percent permanent impairment rating to the left lower 
 
            extremity.  He apportioned 22 percent of it to claimant's 
 
            injuries on March 15, 1988 and December 21, 1988.  He 
 
            further apportioned 10 percent to claimant's March 15, 1988 
 
            injury and 12 percent to his December 21, 1988 injury (Ex. 
 
            I, pp. 74 & 77).  On May 24, 1991, Dr. Weatherwax, a 
 
            one-time examining physician, rated claimant's impairment 
 
            loss to the left lower extremity at 30 percent.  He did not 
 
            attempt any apportionment nor did he disclose the mea
 
            surement standard utilized to reach his percentage 
 
            conclusion (Ex. l, p. 84).
 
            
 
                 Dr. Donohue, disclosed that he had utilized the AMA 
 
            Guides to the Evaluation of Permanent Impairment, Third 
 
            Edition.  In doing so, he stated:  "As you should know, 
 
            consideration for pain and discomfort, loss of coordination, 
 
            dexterity, endurance and strength are not rateable."  (Ex. 
 
            1, p. 83)
 
            
 
                 Evidence considered in assessing the loss of use of a 
 
            particular scheduled member may entail more than a medical 
 
            rating pursuant to standardized guides for evaluating 
 
            permanent impairment.  A claimant's testimony and 
 
            demonstration  of difficulties incurred in using the injured 
 
            member and medical evidence regarding general loss of use 
 
            may be considered in determining the actual loss of use 
 
            compensable.  Soukup v. Shores Co., 222 Iowa 272, 268 N.W.2d 
 
            598 (1936); Langrehr v. Warren Packaging Corp., 
 
            Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner, 179 (January 22, 1980).  Consideration is not 
 
            given to what effect the scheduled loss has on claimant's 
 
            earning capacity.  The scheduled loss system created by the 
 
            legislature is presumed to include compensation for reduced 
 
            capacity to labor and to earn.  Schell v. Central 
 
            Engineering Co., 232 Iowa 421, 4 N.W.2d 339 (1942).  See 
 
            Roberts v. Pizza Hut of Washington, Inc., II Iowa 
 
            Industrial Commissioner Report, 317, 320 (1982); Sheflett v. 
 
            Clearfield Veterinary Clinic, II Iowa Industrial 
 
            Commissioner Report, 334, 347 (1982); and Webster v. John 
 
            Deere Component Works, II Iowa Industrial Commissioner 
 
            Reports, 435, 450 (1982).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Division of Industrial Services Rule 343-2.4(85) 
 
            provides in pertinent part as follows:
 
            
 
                 The Guides to the Evaluation of Permanent 
 
                 Impairment published by the American Medical 
 
                 Association are adopted as a guide for determining 
 
                 permanent partial disabilities under Iowa Code 
 
                 section 85.34(2) "a" - "r".  The extent of loss or 
 
                 percentage of permanent impairment may be 
 
                 determined by use of this guide and payment of 
 
                 weekly compensation for permanent partial 
 
                 scheduled injuries made accordingly....Nothing in 
 
                 this rule shall be construed to prevent the 
 
                 presentations of other medical opinion or guides 
 
                 for the purpose of establishing that the degree of 
 
                 permanent impairment to which the claimant would 
 
                 be entitled would be more or less than the 
 
                 entitlement indicated in the AMA guide.
 
            
 
                 Chapter 17A.14(5) of the Iowa Administrative Procedure 
 
            Act states:  "The agency's experience, technical competence, 
 
            and specialized knowledge may be utilized in the evaluation 
 
            of the evidence."  Based upon the total evidence presented 
 
            in this case, it is determined that Dr. Donohue's rating is 
 
            more consistent with the total evidence than the one-time 
 
            assessment made by Dr. Weatherwax.  The undersigned is not 
 
            persuaded that claimant is entitled to an increase in 
 
            rating.  In this regard, it is noted that Dr. Donohue has 
 
            been claimant's treating physician since March 1988.  After 
 
            claimant's initial injury on March 15, 1988, Dr. Donohue 
 
            released claimant to return to work without restrictions as 
 
            of May 16, 1988 (Ex. I, p. 18).  After claimant twisted his 
 
            left knee in July 1988, Dr. Donohue released him without lim
 
            itations on August 6, 1988 (Ex. I, p. 28).  Another reinjury 
 
            in December 1988, culminated in an arthroscopic evaluation 
 
            on February 14, 1989, which showed an osteochondral flap 
 
            along the medial femoral condyle and a previous tear of his 
 
            anterior cruciate ligament.  After extensive follow-up 
 
            therapy, Dr. Donohue released claimant to return to work on 
 
            July 25, 1989.  He imposed no limitations on the number of 
 
            hours or the consecutive days to be worked and no lifting 
 
            restrictions.  Claimant was advised to wear his left knee 
 
            brace and to avoid loading and unloading his truck (Ex. 1, 
 
            p. 58).  After claimant quit his job, and based on his 
 
            subjective complaints, Dr. Donohue limited claimant to a 
 
            five day work week.
 
            
 
                 At the hearing, claimant testified that he has 
 
            experienced persistent left knee discomfort since December 
 
            1988 which interferes with his ability to walk, run, climb, 
 
            stoop, twist, bend and sit.  However, claimant made no 
 
            mention of these complaints to Dr. Donohue or Dr. 
 
            Weatherwax.  Claimant testified that he has sustained a 70 
 
            percent loss of use of his left leg based on pain and an 
 
            inability to engage in certain activities.  Although 
 
            claimant and four lay witnesses testified that he cannot sit 
 
            for prolonged periods of time without experiencing 
 
            significant discomfort, it was apparent to the undersigned 
 
            that claimant was able to sit throughout the course of a 
 
            five hour hearing without apparent discomfort or alternating 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            between sitting and standing.  Furthermore, claimant 
 
            testified that he attends college classes for four hours a 
 
            day and spends another four hours studying at home.  
 
            Accordingly, the undersigned concludes that the evidence 
 
            does not warrant changing Dr. Donohue's 22 percent 
 
            impairment rating.
 
            
 
                 Another issue for resolution involves the question of 
 
            whether claimant is entitled to penalty benefits under Iowa 
 
            Code section 86.13.  This section provides in pertinent part 
 
            that:
 
            
 
                 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 chapters 85, 85A, 
 
                 or 85B, up to fifty percent of the amount of 
 
                 benefits that were unreasonably delayed or denied.
 
            
 
                 Claimant alleges that unreasonable delays occurred in 
 
            processing weekly claims and that defendants' failure to pay 
 
            voluntary benefits to the extent he believes appropriate was 
 
            unreasonable.
 
            
 
                 In determining entitlement to penalty benefits, the 
 
            appropriate standard is whether defendants' unreasonably 
 
            withheld or terminated benefits. nclusions regarding the date payment was made, the due 
 
            date for payment and the amount of payment due.  Claimant 
 
            correctly states that payments should be applied first to 
 
            accrued interest up to the date of payment and then to 
 
            principal amounts due.  Huner v. Doolittle, 3 Greene 76-77 
 
            (Iowa 1851).  The parties are directed to calculate interest 
 
            on any weekly benefits not paid when due pursuant to Iowa 
 
            Code section 85.30 and the instructions found on pages VI - 
 
            VII of the Guide to Iowa Workers' Compensation Claim 
 
            Handling book.
 
            
 
                 For purposes of determining the date upon which 
 
            payments were made, it is held that payments shall be deemed 
 
            "made" on the day deposited into the United States mail 
 
            addressed to claimant or, if not so mailed, on the date made 
 
            available to claimant.
 
            
 
                 If further intervention by this agency is needed to 
 
            resolve any dispute as to such calculations, the parties are 
 
            warned in advance of the possibility that a certified public 
 
            accountant might be retained as an expert and the cost 
 
            thereof assessed to one or several parties as may seem just.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In File No. 913213:
 
            
 
                 Claimant shall take nothing from this proceeding and by 
 
            agreement of the parties this claim is dismissed with 
 
            prejudice.
 
            
 
                 In File No. 881251:
 
            
 
                 Defendants shall pay claimant twenty-two (22) (10 x 
 
            220) weeks of permanent partial disability benefits at the 
 
            rate of two hundred forty-seven and 55/l00 dollars ($247.55) 
 
            per week commencing May 16, 1988.
 
            
 
                 In File No. 913214:
 
            
 
                 Defendants shall pay claimant twenty-six point 
 
            five-seven-one (26.571) weeks (12 x 220) of permanent 
 
            partial disability benefits at the rate of three hundred 
 
            nine and 29/l00 ($309.29) per week commencing July 25, 1989.
 
            
 
                 Defendants shall receive credit for all weekly benefits 
 
            voluntarily paid, regardless of how they are denominated.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 The cost of this action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E State St
 
            Algona  IA  50511
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            P O Box 1680
 
            Ft Dodge  IA  50501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           3002; 5-1803; 4000.2; 3800
 
                           Filed September 30, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD LEE MEYERS,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        File Nos. 881251;
 
                                          :         913213 & 913214
 
            HOLIDAY EXPRESS CORPORATION,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            3002 - Rate of compensation - weekly benefit rate
 
            In computing claimant's weekly rate of compensation, 
 
            unrepresented weeks were not included in the 13 weeks prior 
 
            to claimant's injury for determining rate under Iowa Code 
 
            section 85.36(6); Lewis v. Aalf's Mfg. Co., I Iowa Indus. 
 
            Comm'r Rpt. 206, 207 (Appeal Decision 1980) and Anderson v. 
 
            Highrise Construction Specialists, Inc., File No. 850996, 
 
            (Iowa Industrial Commissioner Appeal Decision July 31, 
 
            1990).
 
            
 
            
 
            5-1803 - Permanent partial disability benefits
 
            Using the AMA Guides to the Evaluation of Permanent 
 
            Impaily benefits not 
 
            paid when due based on Iowa Code section 85.30 and if 
 
            further intervention by this agency is needed to resolve any 
 
            dispute as to such calculations, the parties were warned in 
 
            advanced of the possibility that a certified public 
 
            accountant may be retained as an expert and the cost thereof 
 
            assessed to one or several parties as may seem just.  
 
            Terwilliger v. Snap-On Tools Corp., Appeal Decision filed 
 
            May 24, 1991 (presently on judicial review) and Simonson v. 
 
            Snap-On Tools Corp., Arbitration Decision filed on January 
 
            31, 1991.
 
 
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            RONALD LEE MEYERS,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                            File Nos. 881251/913214
 
            HOLIDAY EXPRESS CORPORATION,    
 
                                                 R E M A N D
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            This matter is on remand from the Iowa Court of Appeals, 
 
            Meyers v. Holiday Express Corp., No. 93-23, Filed January 
 
            25, 1994, a decision unpublished as of this date.  The Court 
 
            remanded to the industrial commissioner for computation of 
 
            the healing period for August 25, 1989 to January 9, 1990 
 
            and to order payment of the award.  The court of appeals has 
 
            made its finding on the issue of entitlement to additional 
 
            healing period benefits for this time period.  No further 
 
            discussion on this issue is necessary and entitlement to 
 
            benefits will be ordered as directed by the court of 
 
            appeals.
 
            
 
            The court of appeals also remanded for the following 
 
            determinations:  the extent to which Iowa Code section 86.13 
 
            penalty benefits apply; whether claimant is entitled to 
 
            services pursuant to Iowa Code section 85.27; and 
 
            reevaluation of the assessment of costs following the court 
 
            of appeals decision.
 
            
 
            Only the record, findings of fact, and conclusions of law 
 
            necessary to comply with the remand will be discussed.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The prehearing report/order submitted at the hearing on 
 
            September 12, 1991 stipulated that the type of permanent 
 
            disability is a scheduled member disability.  At the 
 
            evidentiary hearing the following testimony and dialogue 
 
            took place:
 
            
 
            Q.  Did Dr. Donahue [sic] fit you with braces?
 
            A.  Yes, he did.  I am presently wearing one.
 
            Q.  How many?
 
            A.  Two different braces.
 
            Q.  And were those paid for by the defendants?
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            A.  Yes, they were.
 
            Q.  Did you have any problems with those braces?
 
            A.  Yes, this one here, you see it's been refurbished here 
 
            lately, and it's been the third refurbishing.  I also have 
 
            received a different brace but the top strap is too small.  
 
            It's like putting on a tourniquet.
 
            Q.  Have you asked Dr. Donahue [sic] to replace that brace?
 
            A.  Yes, I have, I have on many occasions.
 
            Q.  And has he?
 
            A.  No, he hasn't.
 
            Q.  And did you through me ask the defendants to provide you 
 
            with a doctor who would furnish an appropriate brace?
 
            A.  Yes.
 
            Q.  Who was that doctor that they furnished?
 
            A.  Dr. Weatherwax.
 
            Q.  Did you see Dr. Weatherwax on May 4, 1991?
 
            A.  Yes, I did.
 
            Q.  And did you ask him about the brace?
 
            A.  Yes, I did.
 
            Q.  And was he willing to do anything about it?
 
            A.  No, he wasn't, he referred me back to Dr. Donahue [sic].  
 
            All he did was change, the previous brace had a 10 degree 
 
            stop here on the inside joint, and he changed that because 
 
            he didn't feel 10 degrees was sufficient to a 20 degree 
 
            stop.
 
            ....
 
            THE COURT:  Can we get the issue of the brace cleared up?
 
            MR. TREVINO:  I will call Dr. Donahue's [sic] office.
 
            THE COURT:  Today.
 
            MR. TREVINO:  And say send the damn brace in, we will pay 
 
            for it, if that is a problem.  Does that satisfy you, Mr. 
 
            Meyers?
 
            A.  Yes, thank you.
 
            THE COURT:  Does that satisfy you?
 
            MR. SOLDAT:  Yes, it does.
 
            THE COURT:  I will address the other issues in the decision.  
 
            I don't think I have to bother with that one.
 
            
 
            (Transcript, pages 64-65 and 177-178)
 
            Claimant filed an application for rehearing of the September 
 
            30, 1991 arbitration decision.  None of the issues raised in 
 
            the application for rehearing dealt with claimant's 
 
            entitlement to medical benefits or the deputy's failure to 
 
            address any issue relating to medical benefits.  Claimant 
 
            filed an appeal and an amendment to notice of appeal.  The 
 
            amendment to notice of appeal filed February 13, 1992 listed 
 
            the "errors assigned on appeal."  None of the listed "errors 
 
            assigned on appeal" dealt with the issue of claimant's 
 
            entitlement to medical benefits.
 
            It was stipulated in the prehearing report/order that 
 
            claimant was entitled to healing period benefits March 
 
            21-May 15, 1988; July 8-11, 1988; and December 23, 1988 - 
 
            July 24, 1989; temporary partial disability benefits July 12 
 
            - August 5, 1988; and permanent partial disability benefits 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            commencing May 16, 1988 for the March 15, 1988 injury and 
 
            July 25, 1989 for the December 21, 1988 injury.  The parties 
 
            also stipulated when weekly benefit compensation drafts were 
 
            issued (pages 4-5 of prehearing report).  For the period 
 
            March 21 through May 15, 1988 the drafts were issued 
 
            beginning April 5, 1988 and weekly thereafter.  For the 
 
            period July 8-11, 1988 no draft was issued.  For the period 
 
            December 23, 1988 through July 24, 1989 the drafts were 
 
            issued beginning January 6, 1989 and weekly through July 28, 
 
            1989.  The draft issued July 28, 1989 was for the period 
 
            July 21 through July 27, 1989.  For the period July 11, 1988 
 
            through July 31, 1988 the drafts were issued July 26 and 
 
            August 10, 1988.  For the period July 26 through October 10, 
 
            1989 the drafts were issued October 31, 1989 and February 
 
            14, 1991.  For the period October 11, 1989 through June 30, 
 
            1990 the drafts were issued beginning February 16, 1990 and 
 
            weekly through July 3, 1990.  Also on February 14, 1991 
 
            drafts were issued for interest for the period March 28, 
 
            1988 through June 30, 1990; temporary partial disability for 
 
            the period July 11 through August 7, 1988; temporary total 
 
            disability [sic] for the periods May 5 through July 24, 
 
            1989; December 23, 1988 through May 4, 1989 and March 28, 
 
            1988 through May 15, 1988.
 
            
 
                             CONCLUSIONS OF LAW
 
            
 
            The first issue to be resolved is the extent to which Iowa 
 
            Code section 86.13 penalty benefits apply.  Iowa Code 
 
            section 86.13 provides in relevant part:
 
               
 
               If a delay in commencement or termination of benefits 
 
            occurs without reasonable or probable cause or excuse, the 
 
            industrial commissioner shall award benefits in addition to 
 
            those benefits payable under this chapter, or chapter 85, 
 
            85A, or 85B, up to fifty percent of the amount of benefits 
 
            that were unreasonably delayed or denied.
 
            Claimant seeks to recover a penalty under the fourth 
 
            unnumbered paragraph of Iowa Code section 86.13.  Section 
 
            86.13 permits an award of up to 50 percent of the amount of 
 
            benefits delayed or denied if a delay in commencement or 
 
            termination of benefits occurs without reasonable or 
 
            probable cause or excuse.  The standard for evaluating the 
 
            reasonableness of defendants' delay in commencement or 
 
            termination is whether the claim is fairly debatable.  Where 
 
            a claim is shown to be fairly debatable, defendants do not 
 
            act unreasonably in denying payment.  Covia v. Robinson, 507 
 
            N.W.2d 411 (Iowa 1993).
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            In the remand directive from the court of appeals it is not 
 
            entirely clear what matter is to be decided on remand.  It 
 
            is unclear whether the industrial commissioner should 
 
            determine whether penalty benefits are due for weekly 
 
            benefits not in dispute, those weekly benefits in dispute, 
 
            or both.
 
            A review of voluntary benefits paid shows that delays, if 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            any, for nearly all payments were minimal.  There were 
 
            several periods of time when defendants paid regular weekly 
 
            benefits.  On February 14, 1991 payments were made for 
 
            interest and previously unpaid benefits.  The only apparent 
 
            benefits agreed to but unpaid were for the four day period 
 
            July 8-11, 1988.  It appears from the stipulation that 
 
            benefits may have been voluntarily overpaid.  (See, e.g., 
 
            July 21-27, 1989.)  Imposition of penalty benefits are 
 
            within the discretion of the agency.  Although there is no 
 
            showing as to the reason for the delay, the length of delay, 
 
            if any, for nearly all benefits agreed to be due does not 
 
            warrant imposition of a penalty.
 
            Clearly there is no penalty due for healing period benefits 
 
            for the time August 25, 1989 to January 9, 1990.  These 
 
            benefits were ordered to be paid by the court of appeals.  
 
            The deputy industrial commissioner, the industrial 
 
            commissioner and the district court all found that healing 
 
            period benefits were not due for this time period.  The 
 
            claim for benefits for this time period was fairly 
 
            debatable.
 
            
 
            Claimant has not proved entitlement to penalty benefits.
 
            The next issue to be considered is whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27.  
 
            This issue was not properly preserved before the agency.  
 
            Claimant did not raise the issue in either his application 
 
            for rehearing or his intra-agency appeal.  This issue is not 
 
            properly before the agency.
 
            
 
            Even if the issue of entitlement to additional medical 
 
            benefits were to be considered, claimant has not proved 
 
            entitlement to additional medical benefits.
 
            Claimant has not proved any entitlement to additional 
 
            medical benefits.  Claimant stipulated that the injury was 
 
            limited to a scheduled member.  Therefore, treatment, if 
 
            any, of the hip and back is not part of this case.
 
            Claimant is not entitled to any additional benefits as it 
 
            related to his leg braces.  It was claimant's testimony that 
 
            both Dr. Donohue and Dr. Weatherwax did not suggest any 
 
            change in the brace.  At the hearing the claimant abandoned 
 
            any further benefits relating to the brace. 
 
            
 
            The last issue to be resolved is the taxation of costs 
 
            incurred before the agency.  Iowa Code section 86.40 
 
            provides:  "All costs incurred in the hearing before the 
 
            commissioner shall be taxed in the discretion of the 
 
            commissioner."  Rule 343 IAC 4.33 provides in relevant part:  
 
            "Costs are to be assessed at the discretion of the deputy 
 
            commissioner or industrial commissioner hearing the case 
 
            unless otherwise required by the rules of civil procedure 
 
            governing discovery."  The court of appeals decision does 
 
            not change the original assessment of costs.  On remand 
 
            claimant has been found to be entitled to no more than what 
 
            the court of appeals ordered.  It is noted that the only 
 
            cost assessed claimant by the agency was the cost of the 
 
            preparation of the transcript.  Claimant has been 
 
            unsuccessful on any issue decided by the industrial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            commissioner.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants are to pay unto claimant healing period 
 
            benefits from August 25, 1989 until January 9, 1990. 
 
            
 
            That claimant pay the costs of the appeal including the 
 
            transcription of the hearing.  All other costs before the 
 
            agency shall be paid by the defendants.
 
            
 
            Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                      BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 E. State St.
 
            Algona, Iowa 50511
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            P.O. Box 1680
 
            Fort Dodge, Iowa 50501
 
            
 
 
            
 
 
 
 
 
 
 
                                      1402.60; 2504; 2700; 2906; 2907
 
                                      Filed July 27, 1994
 
                                      Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            RONALD LEE MEYERS,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File Nos. 881251/913214
 
            HOLIDAY EXPRESS CORPORATION,    
 
                                                   R E M A N D
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            1402.60; 2504; 2700; 2906
 
            
 
            On remand it was found issue of medical treatment was not 
 
            preserved before the agency.  Even if issue of medical 
 
            benefits were considered, claimant was not entitled to 
 
            additional benefits.  Claimant had stipulated that 
 
            disability was limited to a scheduled member and therefore 
 
            was not entitled to treatment of the hip and lower back.  
 
            Two doctors declined to recommend change to claimant's two 
 
            leg braces and claimant abandoned claim for additional 
 
            future modification of braces at the hearing
 
            
 
            2907
 
            Claimant who unsuccessful on any issue raised before the 
 
            industrial commissioner was assessed the costs of the 
 
            intra-agency appeal.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                        :
 
            MERLE P. BICE, 	        :
 
   		                        :
 
                 Claimant, 	        :       File No. 881267
 
                      		        :
 
            		vs.             :         A P P E A L
 
                      			:
 
            ALUMINUM COMPANY OF AMERICA,:       D E C I S I O N
 
                      			:
 
                 Employer, 		:
 
                 Self-Insured,  	:
 
                 Defendant.     	:
 
            ___________________________________________________________
 
            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 
 
            filed March 11, 1991, is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 E 6th St
 
            P O Box 339
 
            Davenport  IA  52805
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 22, 1991
 
            BYRON K. ORTON
 
            MDM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            MERLE P. BICE,	      :
 
                      		      :
 
                 Claimant, 	      :       File No. 881267
 
                      		      :
 
		            vs.       :         A P P E A L
 
                		      :
 
            ALUMINUM COMPANY 	      :
 
			OF AMERICA,   :       D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 11, 
 
            1991.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE P. BICE,                :
 
                                          :
 
                 Claimant,                :      File No. 881267
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Merle P. 
 
            Bice as a result of injuries to his upper back and right 
 
            shoulder which occurred on February 21, 1988.  Defendant 
 
            accepted compensability for the injury and paid weekly 
 
            benefits and medical expenses.
 
            
 
                 The case was heard and fully submitted in Davenport, 
 
            Iowa, on January 30, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 10; claimant's exhibit 
 
            1; and the testimony from claimant, Kevin O'Brien, Helen 
 
            Bice, S. Louis Casta, M.D., and Judy Stengel.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period benefits 
 
            beginning March 8, 1988 through April 17, 1988, and May 26, 
 
            1988 and continuing.
 
            
 
                 2.  The extent of entitlement to weekly compensation 
 
            for permanent partial disability under Iowa Code section 
 
            85.34(2)(u), and claimant's odd-lot status; and,
 
            
 
                 3.  The commencement date for permanent partial 
 
            disability.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, the 
 
            following findings of fact are made:
 
            
 
                 Merle Bice began working for employer in December 1958 
 
            as a pipe fitter.  He continued to work for employer until 
 
            the time of his injury on February 21, 1988 at which time he 
 
            was 54 years of age.
 
            
 
                 Claimant testified that his title was general mechanic.  
 
            In that position he was responsible for performing 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            maintenance on the plant's machinery.
 
            
 
                 Prior to February 1988, claimant had injured his right 
 
            shoulder several times.  The prior injuries resolved and 
 
            claimant was able to continue to perform his duties as a 
 
            general mechanic.
 
            
 
                 On February 21, 1988, while at work for employer, 
 
            claimant injured his right shoulder and upper back when he 
 
            was changing rolls on a machine.  Claimant continued to work 
 
            for the rest of the day.  The next day the pain was very 
 
            severe and claimant sought medical care.  Claimant continued 
 
            to work until March 8, 1988, when he was taken off work by 
 
            Charles T. Cassel, M.D. (Joint Exhibit 2, page 21).  
 
            Claimant remained off work while receiving medication and 
 
            physical therapy for his shoulder and upper back pain.  Dr. 
 
            Cassel diagnosed the injury as a soft tissue injury in the 
 
            upper back (Jt. Ex. 2, p. 21).  Dr. Cassel released claimant 
 
            to return to work for employer on April 18, 1988 with work 
 
            restriction of no sledgehammer use or overhead activity for 
 
            three weeks (Jt. Ex. 2, p. 22).  Claimant saw Dr. Cassel 
 
            again on April 28, 1988 and was reportedly doing fairly 
 
            well.  The diagnosis was degenerative osteoarthrosis, lower 
 
            cervical spine, with radiation of pain to the right superior 
 
            scapula and medial scapula area (Jt. Ex. 2, p. 22).
 
            
 
                 On May 26, 1988, claimant went back to see Dr. Cassel 
 
            and reported that he was much worse than before.  Dr. Cassel 
 
            took claimant off work and made a referral to Arlo B. 
 
            Brakel, M.D., a neurosurgeon (Jt. Ex. 2, p. 23)
 
            
 
                 Claimant testified at hearing that his condition had 
 
            made no significant improvement since the May 26, 1988 visit 
 
            with Dr. Cassel.
 
            
 
                 Dr. Brakel found spondylitic changes and spurring in 
 
            the cervical spine.  He opined that the patient's syndrome 
 
            is work related and was exacerbated by certain aspects of 
 
            claimant's work obligation (Jt. Ex. 3, p. 29)
 
            
 
                 S. Louis Casta, M.D., testified live at hearing.  He 
 
            stated that he has been practicing for 30 years with the 
 
            last 12 years being in occupational medicine.  Dr. Casta had 
 
            seen claimant and reviewed all of claimant's medical 
 
            records.  He opined with reasonable medical certainty that 
 
            the cervical spurring and spondylolisthesis preexisted the 
 
            February 21, 1988 injury.  Dr. Casta's opinion is found to 
 
            be correct as no other doctor addressed that particular 
 
            issue.  However, this does not equate to the lack of a 
 
            medical diagnosis.  Dr. Brakel clearly stated that the 
 
            syndrome was exacerbated by claimant's work obligations (Jt. 
 
            Ex. 3, p. 29).  It is found that on February 21, 1988, 
 
            claimant incurred an aggravation of a preexisting cervical 
 
            spine condition while at work for employer.  The other 
 
            treating doctors did not offer contrary opinions concerning 
 
            aggravation of the cervical condition.
 
            
 
                 Having found a diagnosis and a causal connection to 
 
            work, the history of claimant's lost time must continue.  As 
 
            stated, claimant was taken off work on May 26, 1988 by Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Cassel.  To date of hearing, claimant had not returned to 
 
            work nor had he applied for work with other potential 
 
            employers.
 
            
 
                 While claimant was off work and recovering from the 
 
            aggravation of his cervical spine condition, claimant made 
 
            significant improvement.  On July 26, 1988, Dr. Brakel 
 
            stated that a neurological exam revealed no evidence of 
 
            radiculopathy and that he would be kept off work for a 
 
            briefly longer period (Jt. Ex. 3, p. 33).  On August 24, 
 
            1988, claimant sustained another aggravating injury to his 
 
            right shoulder when he was tightening some bolts on his 
 
            automobile at home (Jt. Ex. 3, pp. 28, 33; Jt. Ex. 4, p. 
 
            44).  Dr. Brakel described the incident as a significant 
 
            exacerbation (Jt. Ex. 4, p. 44).  It is found that on August 
 
            24, 1988, claimant incurred a material aggravation of his 
 
            right shoulder and cervical spine condition as a result of 
 
            the bolt tightening on claimant's automobile.  This incident 
 
            occurred at claimant's home and was not related to work for 
 
            employer.
 
            
 
                 Claimant continued on his off work status from August 
 
            25, 1988 through January 16, 1989 (Jt. Ex. 3, p. 34).  On 
 
            December 30, 1988, Dr. Brakel gave claimant a release to 
 
            work with work restrictions of 20 pounds lifting, no 
 
            repetitive lifting, twisting or movement of his neck (Jt. 
 
            Ex. 3, p. 34).
 
            
 
                 The employer did not offer claimant suitable light duty 
 
            work in January 1989 nor did the employer offer any light 
 
            duty work to date of hearing (Jt. Ex. 1, p. 13).  It is 
 
            found that the employer did not make a good faith effort to 
 
            re-employ claimant subsequent to his release to return to 
 
            work in January 1989.
 
            
 
                 Claimant was taken off work again on January 30, 1989 
 
            and returned to light duty again on April 10, 1989 (Jt. Ex. 
 
            3, pp. 40-41).  Claimant was again taken off work on May 15, 
 
            1989 and appears to be restricted from work to date of 
 
            hearing.  However, it is found that the cause of claimant's 
 
            off work status subsequent to August 24, 1988 has not been 
 
            proven by a preponderance of the evidence.  The intervening 
 
            aggravation which occurred on August 24, 1988 sufficiently 
 
            clouded the issue of the cause of claimant's lost time 
 
            subsequent to that date.  No doctor stated an opinion with 
 
            reasonable medical certainty that but for the August 24, 
 
            1988 bolt tightening incident, claimant would have been 
 
            healed by a certain date.  Dr. Brakel on July 24, 1988 
 
            opined that the healing period would be brief (Jt. Ex. 3, p. 
 
            33).  No evidence on the definition of brief was presented.  
 
            To find that the healing period extends beyond August 24, 
 
            1988 would be unduly speculative.
 
            
 
                 As previously stated, claimant has not worked since May 
 
            25, 1988.  Claimant testified that he does not make as much 
 
            money now as he did when he worked for employer.  The 
 
            evidence presented by testimony and exhibit reveals that 
 
            claimant now receives on an annualized basis $22,,000 
 
            tax-free in worker' compensation, $9,504 from his retirement 
 
            plan and $11,400 from his social security disability.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            According to claimant's stipulated average weekly wage, 
 
            claimant earned about $37,000 per year working for employer.  
 
            Claimant also receives $475 per month for a 
 
            service-connected disability.  He has been receiving this 
 
            benefit continuously since 1954.  It is found that claimant 
 
            has a tremendous financial incentive to not return to work.
 
            
 
                 Kevin O'Brien testified that he is employer's senior 
 
            personnel administrator.  He explained that the employer did 
 
            not return claimant to work due to the doctor's 
 
            restrictions.
 
            
 
                 Helen Bice testified that she is claimant's wife.  She 
 
            stated that as a result of claimant's shoulder pain his 
 
            leisure activities and housework have been severely 
 
            restricted.
 
            
 
                 Judy Stengel testified that she is a vocational 
 
            rehabilitation specialist.  She prepared Joint Exhibit 10 in 
 
            January 1991 for the benefit of litigation.  She was of the 
 
            opinion that claimant was precluded from returning to his 
 
            former work with employer due to the work restrictions 
 
            placed upon him by Dr. Brakel.  She testified that his 
 
            access to the job market is reduced but that claimant is 
 
            still employable.
 
            
 
                 Stengel attacked the validity of Joint Exhibit 9, which 
 
            is a vocational evaluation prepared by William Gerard.  
 
            Joint Exhibit 9 concluded that a number of occupations 
 
            existed for which claimant was qualified but that no 
 
            openings were located in Iowa (Jt. Ex. 9, p. 66).  Stengel 
 
            testified that Joint Exhibit 9 relied upon jobs listed with 
 
            job service.  She stated that many employers do not list 
 
            with job service.  She also stated that claimant's 
 
            experience as a pipe fitter was not addressed in Joint 
 
            Exhibit 9,  The pipe fitter training opens another group of 
 
            potential occupations.
 
            
 
                 It is found that claimant is restricted from returning 
 
            to his former position with employer as a result of the 
 
            February 21, 1988 accident.  It is found that claimant is 
 
            employable at a significantly reduced wage as compared to 
 
            his earnings at the time of injury (Jt. Ex. 10, op. 77).
 
            
 
                 The first issue to be resolved concerns claimant's 
 
            entitlement to hearing period.  The lost time is found to be 
 
            healing period as opposed to temporary total disability as 
 
            the parties stipulated that the injury was a cause of 
 
            permanent partial disability.
 
            
 
                 The medical evidence stating that claimant was off work 
 
            starting March 8, 1988 through April 17, 1988 as a result of 
 
            the February 21, 1988 injury is not contradicted (Jt. Ex. 2, 
 
            p. 22).  It is found that claimant is entitled to healing 
 
            period benefits beginning March 8, 1988 through April 17, 
 
            1988.
 
            
 
                 In this case, the healing period was intermittent.  The 
 
            second healing period started May 26, 1988 (Jt. Ex. 2, p. 
 
            26).  It is found that claimant has proven entitlement to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            healing period through August 24, 1988.  No healing period 
 
            subsequent to August 24, 1988 has been proven due to the 
 
            intervening injury to claimant's shoulder while working on a 
 
            car.
 
            
 
                 The next issue concerns the extent of entitlement to 
 
            permanent partial disability under Iowa Code section 
 
            85.34(2)(u).
 
            
 
                 Factors to be considered when assessing industrial 
 
            disability include claimant's age, education, experience, 
 
            permanent partial impairment, work restrictions and 
 
            employer's offer of work.
 
            
 
                 Claimant, age 54 at the time of injury, would be 
 
            expected to work another 11 years prior to retirement.  His 
 
            experience is that of a highly mechanically skilled heavy 
 
            laborer with no significant education beyond a GED.
 
            
 
                 Claimant's impairment resulting from the February 21, 
 
            1988 injury was rated at 20 percent to the body as a whole 
 
            by Michael H. Laws, M.D. (Jt. Ex. 5, p. 55).  No contrary 
 
            opinion on impairment was offered.  No medical evidence 
 
            concerning apportionment between the preexisting condition 
 
            or the August 24, 1988 aggravation and the February 21, 1988 
 
            injury was presented.  Therefore, the entire 20 percent 
 
            impairment is found to have resulted from the February 21, 
 
            1988 injury.
 
            
 
                 Claimant contends that he is totally disabled as shown 
 
            by Dr. Laws' report of August 9, 1990 (Jt. Ex. 5, p. 54).  
 
            This contention is rejected.  Dr. Laws did not state the 
 
            claimant's total disability was caused by the February 21, 
 
            1988 injury.  The intervening accident of August 24, 1988 
 
            prevents claimant from establishing that his alleged 
 
            permanent total disability is caused by the February 21, 
 
            1988 work injury.
 
            
 
                 Claimant also alleged odd-lot as an issue.  In order to 
 
            establish odd-lot status, claimant must prove that he is not 
 
            employable in the competitive labor market.
 
            
 
                 Claimant has failed to prove a prima facie case of 
 
            odd-lot for two reasons.  First, claimant has failed to make 
 
            any search for employment subsequent to his release to 
 
            return to work.  Second, both vocational rehabilitation 
 
            experts found work that claimant could perform (Jt. Exs. 9 
 
            and 10).
 
            
 
                 Claimant's reduction in earnings must also be 
 
            considered.  At the time of injury, claimant's stipulated 
 
            average weekly wage was $715.54.  Subsequent to the injury, 
 
            claimant is now qualified to perform work which will yield 
 
            weekly earnings between $211 to a high of $479.  This loss 
 
            of earning capacity weighs heavily in favor of a higher 
 
            industrial disability.
 
            
 
                 Claimant's work restrictions prevent lifting over 20 
 
            pounds and also restrict claimant from performing repetitive 
 
            work.  The impact on claimant's earning capacity is revealed 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            in Joint Exhibits 9 and 10.  The severe work restrictions 
 
            also tend to increase industrial disability.
 
            
 
                 Employer failed to offer claimant suitable work when he 
 
            was released to light duty in January 1989 (Jt. Ex. 3, p. 
 
            34; Jt. Ex. 1, p. 13).  This fact also tends to increase 
 
            industrial disability.
 
            
 
                 Claimant exhibited a lack of motivation to return to 
 
            the productive work force as demonstrated by his failure to 
 
            apply for work.  This fact mitigates against a finding of 
 
            industrial disability.
 
            
 
                 Having considered all the evidence presented, it is 
 
            found that claimant is 50 percent industrially disabled as a 
 
            result of the February 21, 1988 injury to his right shoulder 
 
            and upper back.
 
            
 
                 The commencement date for permanent partial disability 
 
            is found to be April 18, 1988 as that date coincides with 
 
            the end of the first healing period.  Said benefits are to 
 
            be paid intermittently before and after the second healing 
 
            period.
 
            
 
                                conclusions of law
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish V. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  The expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection between the 
 
            injury and the disability.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903.
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 Claimant has proven entitlement to intermittent healing 
 
            period benefits beginning March 8, 1988 through April 17, 
 
            1988 and May 26, 1988 through August 24, 1988.
 
            
 
                 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, expe
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 For example, a defendant employer's refusal to give any 
 
            sort of work to a claimant after he suffers his affliction 
 
            may justify an award of disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Under the odd-lot doctrine, which was formally adopted 
 
            by the Iowa Supreme Court in Guyton, supra, a worker becomes 
 
            an odd-lot employee when an injury makes the worker 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  An odd-lot worker is thus totally 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            disabled if the only services the worker can perform are so 
 
            limited in quality, dependability, or quantity that a 
 
            reasonably stable market for them does not exist.  Id., 
 
            citing Lee v. Minneapolis Street Railway Company, 230 
 
            Minn.315, 320, 41 N.W.2d 433, 436 (1950).  The rule of odd-
 
            lot allocates the burden of production of evidence.  If the 
 
            evidence of degree of obvious physical impairment, coupled 
 
            with other facts such as claimant's mental capacity, 
 
            education, training or age, places claimant prima facie in 
 
            the odd-lot category, the burden should be on the employer 
 
            to show that some kind of suitable work is regularly and 
 
            continuously available to the claimant.  Certainly in such 
 
            cases it should not be enough to show that claimant is 
 
            physically capable of performing light work and then round 
 
            out the case for noncompensable by adding a presumption that 
 
            light work is available.  Guyton, 373 N.W.2d at 105.
 
            
 
                 When a worker makes a prima facie case of total 
 
            disability by producing substantial evidence that the worker 
 
            is not employable in the competitive labor market, the 
 
            burden to produce evidence of suitable employment shifts to 
 
            the employer.  If the employer fails to produce such 
 
            evidence and the trier of fact finds the worker falls in the 
 
            odd-lot category, the worker is entitled to a finding of 
 
            total disability.  Even under the odd-lot doctrine, the 
 
            trier of fact is free to determine the weight and 
 
            credibility of the evidence in determining whether the 
 
            worker's burden of persuasion has been carried.  Only in an 
 
            exceptional case would evidence be sufficiently strong to 
 
            compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.  The court went on to state:
 
            
 
                    The commissioner did not in his analysis 
 
                 address any of the other factors to be considered 
 
                 in determining industrial disability.  Industrial 
 
                 disability means reduced earning capacity.  Bodily 
 
                 impairment is merely one factor in a gauging 
 
                 industrial disability.  Other factors include the 
 
                 worker's age, intelligence, education, 
 
                 qualifications, experience, and the effect of the 
 
                 injury on the worker's ability to obtain suitable 
 
                 work.  See Doerfer Division of CCA v. Nicol, 359 
 
                 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
                 of factors precludes the worker from obtaining 
 
                 regular employment to earn a living, the worker 
 
                 with only a partial functional disability has a 
 
                 total disability.  See McSpadden v. Big Ben Coal 
 
                 Co, 288 N.W.2d 181, 192 (Iowa 1980).
 
            
 
                 If a claimant has made no attempt to find work, then he 
 
            cannot be determined to be an odd-lot employee.  Emshoff v. 
 
            Petroleum Transportation Services, file no. 753723 (Appeal 
 
            Decision March 31, 1987); Collins v. Friendship Village, 
 
            Inc., file no. 679258 (Appeal Decision October 31, 1988).
 
            
 
                 Claimant's request for odd-lot status fails in that he 
 
            has failed to prove that he is not employable in the 
 
            competitive labor market.
 
            
 
                 Upon considering all the material factors, it is found 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            that the evidence in this case supports an award of 50 
 
            percent permanent partial disability which entitles the 
 
            claimant to recover 250 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u) as a result of the February 21, 1988 
 
            injury to his upper back and right shoulder.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Having found that the healing period benefits end on 
 
            April 17, 1988, it follows that claimant has carried his 
 
            burden in proving April 18, 1988 as the commencement date 
 
            for permanent partial disability benefits.  Said benefits 
 
            are to be paid intermittently before and after the second 
 
            healing period.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is found:
 
            
 
                 Defendant is to pay claimant healing period benefits at 
 
            the rate of four hundred twenty-three and 28/100 dollars 
 
            ($423.28) for the period March 8, 1988 through April 17, 
 
            1988 and May 26 1988 through August 24, 1988.
 
            
 
                 Defendant is to pay claimant three hundred (250) weeks 
 
            of permanent partial disability benefits at the rate of four 
 
            hundred twenty-three and 28/100 dollars ($423.28) per week 
 
            commencing April 18, 1988 and to be paid intermittently 
 
            before and after the second healing period.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            Mr Michael W Liebbe
 
            Attorney at Law
 
            116 E 6th St
 
            P O Box 339
 
            Davenport IA 52805
 
            
 
            Mr Thomas N Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1802; 5-1803; 5-4100
 
                      Filed March 11, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MERLE P. BICE,                :
 
                                          :
 
                 Claimant,                :      File No. 881267
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            ALUMINUM COMPANY OF AMERICA,  :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1802; 5-1803
 
            
 
            Claimant, at age 54, was a highly skilled heavy laborer with 
 
            a shoulder injury that resulted in 20 pound work 
 
            restrictions which prevented him from returning to previous 
 
            employment.  Employer did not offer work, and claimant took 
 
            early retirement.  Claimant earned $37,000 at time of injury 
 
            but was left with an ability to earn $11,000 to $25,000 
 
            after injury.  Claimant awarded intermittent healing period 
 
            and 50% industrial disability.
 
            
 
            5-4100
 
            The claim for odd-lot failed as claimant failed to make a 
 
            search for employment.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOUG CREASON,
 
         
 
              Claimant,
 
                                                    File No. 881378
 
         vs.
 
                                                 A R B I T R A T I O N
 
         BRENT CAIRO d/b/a CAIRO
 
         TOUCH, INC.,                                D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
              Defendant.
 
                                                        OCT 30 1989
 
         
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Douglas W. 
 
         Creason, claimant, against Brent Cairo d/b/a Cairo Touch, Inc., 
 
         employer (hereinafter referred to as Cairo), defendant, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on July 29, 1988.  On August 25, 1989, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              A review of the file indicates that claimant failed to file 
 
         a first report of injury despite being requested to do so by this 
 
         agency.  Also, defendant failed to answer despite being ordered 
 
         to file an answer by the undersigned.  On July 24, 1989, the 
 
         undersigned sanctioned defendant for failure to comply with the 
 
         order to file an answer and the record was closed to further 
 
         evidence or activity by defendant.  Aside from the sanctions, 
 
         defendant has not attempted to participate in this proceeding and 
 
         was not present at the time of hearing nor did he appear in any 
 
         other capacity.
 
              
 
              Claimant waived a transcription of the oral proceeding on 
 
         August 25, 1989 and agreed that the only official record of the 
 
         oral proceeding will be the exhibits received into the evidence 
 
         and this decision.
 
              
 
                                      ISSUES
 
         
 
               I.  Whether an employer-employee relationship existed 
 
         between Cairo and claimant at the time of the alleged injury;
 
         
 
              II.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              III.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
              
 
              IV.  The extent of claimant's entitlement to weekly 
 
         benefits for temporary total disability (claimant indicated that 
 
         he was not seeking permanent disability benefits in this 
 
         proceeding);
 
         
 
               V.  The extent of claimant's entitlement to medical 
 
         benefits;
 
         
 
              VI.  The extent of claimant's entitlement to additional 
 
         weekly benefits for an unreasonable denial of benefits under Iowa 
 
         Code section 86.13; and,
 
         
 
              VII.  Claimant's rate of weekly compensation.
 
              
 
                                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.
 
         
 
              The claimant testified that he was employed as a night 
 
         janitor by Brent Cairo d/b/a Cairo Touch, Inc., from October 3, 
 
         1987 until approximately August 17, 1988.  As part of his 
 
         employment duties he was required to operate a floor scrubber, a 
 
         heavy machine which carries water.  Although it is powered by 
 
         electricity, the scrubber is propelled by the machine operator. 
 
         While operating the floor scrubber at work on July 29, 1988, 
 
         claimant stated that he strained his back.  The claimant said 
 
         that he notified his supervisor, Bob Riessen, by telephone that 
 
         he had injured his back while operating the scrubber and was in 
 
         considerable pain.  According to claimant, Riessen authorized him 
 
         to take the rest of the night off and to take the following night 
 
         off also.  On August 1, 1988, claimant returned to work and 
 
         attempted to perform his duties as usual.  During the night the 
 
         pain in claimant's back became much worse.  Claimant called his 
 
         employer, Brent Cairo, and informed him of his increasing back 
 
         pain.  Cairo directed him to go to the hospital and seek medical 
 
         treatment.
 
         
 
              Claimant was seen on August 2, 1988, at Broadlawns Emergency 
 
         Center by Dr. James Dunham who diagnosed the injury as a back 
 
         strain.  Dr. Dunham prescribed pain medications for the claimant 
 
         and directed claimant not to return to work until after he had 
 
         seen Jeffrey D. Taber, M.D., in three days.  Dr. Dunham's notes 
 
         were admitted as Exhibit "A."
 
         
 
              Claimant was seen by Dr. Taber on August 5, August 11 and 
 
         August 16 of 1988.  His treatment notes were admitted as Exhibit 
 
         "B."  Dr. Taber diagnosed the claimant's injury as muscle strain 
 
         of the left lower back.  After the examinations on August 5 and 
 
         August 11, Dr. Taber directed claimant to remain off work and 
 
         return for a follow-up visit.  Claimant was given a written 
 
         doctor's note excusing him from work after his doctor visits on 
 
         August 2, August 5 and August 11, 1988.  Each of the doctor's 
 
         excuses was personally delivered to the employer.  On August 16, 
 
         1988, Dr. Taber released the claimant to return to work, but 
 
         restricted him to no lifting over 20 pounds for one week and 40 
 
         pounds for two to three weeks.  Dr. Taber also submitted a 
 
         narrative report which was admitted into evidence as Exhibit "D." 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         The narrative report indicates that the type of injury and the 
 
         symptoms exhibited by the claimant were consistent with his 
 
         report of the injury.  The claimant also submitted into evidence 
 
         Exhibit "C" which is a receipt for prescription drugs.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he had engaged in no heavy lifting 
 
         or other strenuous activity which would have caused the injury on 
 
         July 29, 1988.  He testified that he had experienced no back 
 
         problems prior to that time.  Between July 29, 1988 and August 
 
         16, 1988, the claimant said that he suffered from back pain; was 
 
         on medication; was unable to bend or twist; and, had difficulty 
 
         dressing himself.  The claimant stated that he was unable to work 
 
         during this period.
 
         
 
              The claimant submitted an account history from Broadlawns 
 
         Medical Center which was admitted into evidence as Exhibit "E." 
 
         The claimant incurred $188.95 in medical expenses as indicated in 
 
         Exhibits "C" and "E."  The claimant also incurred $16.80 in 
 
         mileage expenses for four trips at 20 miles each for doctor 
 
         visits.
 
              
 
              The claimant testified that he was married with one child at 
 
         the time of the injury and was entitled to three exemptions.  He 
 
         stated that his hours were irregular and he was paid $4.55 per 
 
         hour.  Pay stubs from the employer were admitted into evidence as 
 
         Exhibit "F."  The pay period ending June 21, 1988, was an 
 
         abnormal pay period according to claimant because he was off work 
 
         due to a sprained ankle.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
               I.  Claimant must first establish an employer-employee 
 
         relationship existed between defendant and himself at the time of 
 
         the alleged injury.  Claimant credibly testified that he was such 
 
         an employee and such testimony is uncontroverted.
 
         
 
              II.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that he received an injury which arose out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  See 
 
         Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); 
 
         Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
         (1955). 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 therein.
 
         
 
              The record and claimant's credible testimony clearly 
 
         establishes that he received a back strain at the time alleged in 
 
         his petition.
 
         
 
              III.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
              
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant seeks only temporary total 
 
         disability for approximately two weeks following the injury. 
 
         Claimant's uncontroverted testimony and the uncontroverted 
 
         medical records demonstrate that he was off work due to back 
 
         strain as a result of the injury on July 29, 1988.
 
         
 
              IV.  Pursuant to Iowa Code section 85.33(1) claimant is 
 
         entitled to weekly benefits for temporary total disability from 
 
         the first day of disability until he returns to work or until 
 
         claimant is medically capable of returning to substantially 
 
         similar work to the work he was performing at the time of the 
 
         injury, whichever occurs first.  Claimant was released to return 
 
         to work on August 16, 1988.  Therefore, claimant's entitlement to 
 
         temporary total disability extends from July 29, 1988 through 
 
         August 16, 1988, a total of 2 5/7 weeks.
 
         
 
               V.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of the work injury.  Claimant is requesting medical 
 
         expenses totally $188.95 plus $16.80 for medical mileage and 
 
         testified that they were incurred as a result of the work injury 
 
         on July 29, 1988.  As the testimony is uncontroverted, the 
 
         expenses requested will be awarded.
 
         
 
              VI.  Claimant also requested additional weekly benefits for 
 
         an unreasonable denial of workers' compensation benefits under 
 
         Iowa Code section 86.13.  It has been held that interest and 
 
         penalties are not available for nonpayment of medical expenses. 
 
         Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986).  As 
 
         there were no reasons given to anyone by defendant for a denial 
 
         of payment of any of the benefits as a result of the injury on 
 
         July 29, 1988, and there was no attempt to present a defense in 
 
         this proceeding, the maximum penalty will be imposed which is 50 
 
         percent of the weekly benefits unpaid.  The penalty benefits 
 
         therefore total 1.357 weeks.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              VII.  As claimant's hours varied from week to week, the 
 
         previous 13 weeks must be utilized to calculate the rate.  
 
         However, this agency has consistently held that weeks which 
 
         contain absences due to illness, vacation or other causes which 
 
         are not representative should be excluded from the calculation.  
 
         Lewis v. Aalf's Manufacturing Co., I Iowa Industrial Commissioner 
 
         Report 206 (Appeal Decision 1980).  Excluding the pay period of 
 
         June 21, 1988, due to illness, claimant's average gross weekly 
 
         earnings over the 13 representative weeks prior to the accident 
 
         is $262.00.  Using the commissioner's rate booklet as amended for 
 
         an injury in July 1988, such a gross weekly rate with marital 
 
         status and three exemptions results in a weekly compensation rate 
 
         of $176.41.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is found to be a credible witness from his 
 
         appearance and demeanor while testifying.
 
         
 
              2.  Defendant Cairo and claimant were in an 
 
         employer-employee relationship on July 29, 1988.
 
              
 
              3.  On July 29, 1988, claimant suffered an injury to the 
 
         back which arose out of and in the course of his employment with 
 
         Cairo. This injury was diagnosed as a low back muscle strain.
 
              
 
              4.  The work injury of July 29, 1988, was a cause of a 
 
         period of total disability from work beginning on July 29, 1988 
 
         and ending on August 16, 1988, at which time claimant was able to 
 
         return to the work he was performing at the time of the injury. 
 
         During this time, claimant received treatment of the work injury 
 
         consisting of limitations on activity, medications for pain and 
 
         inflammation and home therapy consisting of heat as needed.
 
         
 
              5.  The work injury of July 29, 1988, was a cause of the 
 
         medical expenses listed in the prehearing report totaling $188.95 
 
         plus medical mileage in the amount of $16.80.
 
              
 
              6.  On July 29, 1988, claimant's gross weekly earnings were 
 
         $262.00 and claimant was married and entitled to three exemptions 
 
         on his tax returns at the time of the injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 2 5/7 
 
         weeks of temporary total disability benefits; 1.357 weeks in 
 
         penalty benefits for an unreasonable denial of temporary total 
 
         disability benefits; the sum of $205.75 in medical benefits and a 
 
         rate of weekly compensation in the amount of $176.41.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant temporary total 
 
         disability benefits from July 29, 1988 through August 16, 1988 at 
 
         the rate of one hundred seventy-six and 41/100 dollars ($176.41) 
 
         per week and penalty benefits in the amount of one point 
 
         three-five-seven (1.357) weeks at the rate of one hundred 
 
         seventy-six and 41/100 dollars ($176.41) per week from July 29, 
 
         1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              2.   Defendant shall pay claimant the sum of two hundred 
 
         five and 75/100 dollars ($205.75) as reimbursement for his 
 
         medical expenses.
 
         
 
              3.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              4.  Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              
 
              5.  Defendant 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.
 
              
 
              6.  Defendant shall file a first report of injury or be 
 
         subject to further sanctions.
 
         
 
         
 
         
 
         
 
              Signed and filed this 30th day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Scott M. Wood
 
         Attorney at Law
 
         408 SW 3rd St
 
         Ankeny, IA  50021
 
         
 
         The Cairo Touch, Inc.
 
         8528 Crestview Dr.
 
         Des Moines, IA  50320
 
         REGULAR & CERTIFIED MAIL
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                              5-1801.1
 
                                              Filed October 30, 1989
 
                                              LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DOUG CREASON,
 
         
 
              Claimant,
 
                                                   File No. 881378
 
         vs.
 
                                                A R B I T R A T I O N
 
         BRENT CAIRO d/b/a CAIRO
 
         TOUCH, INC.,                              D E C I S I O N
 
         
 
              Employer,
 
              Defendant.
 
                        
 
                        
 
         5-1801.1 - Nonprecedential - extent of temporary total disability 
 
         benefits and medical benefits.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TOM SANDERSFELD,
 
         
 
               Claimant,                            File No. 881385
 
         
 
         vs.                                     A R B I T R A T I 0 N
 
         
 
         STEVE HENDERSHOT d/b/a                     D E C I S I 0 N
 
         HENDERSHOT TRUCKING, INC.,
 
         
 
              Employer,                                F I L E D
 
         
 
         and                                          FEB 12 1990
 
         
 
         ALLIED MUTUAL INSURANCE CO.,         IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a bifurcated proceeding arising from the proceeding 
 
         brought by Tom Sandersfeld, claimant, against Steve Hendershot 
 
         d/b/a Hendershot Trucking, Inc., employer (hereinafter referred 
 
         to as Hendershot), and Allied Mutual Insurance Company, insurance 
 
         carrier (hereinafter referred to as Allied), defendants, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on May 19, 1988.  This bifurcated proceeding only involves the 
 
         two party defendants.  On June 22, 1989, a hearing was held on 
 
         the bifurcated issue and the matter was considered fully 
 
         submitted at the close of this hearing.  Oral testimony and 
 
         written exhibits were received during the hearing from the 
 
         parties.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the two party defendants was 
 
         whether or not Allied was a workers' compensation insurer of 
 
         Hendershot at the time of the alleged injury on May 19, 1988.
 
         
 
                              STATEMENT OF THE 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 shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              The employer, Steve Hendershot, testified that he operates a 
 
         nationwide trucking business out of LaPorte City, Iowa. 
 
         Hendershot's employees consist of four persons.  Hendershot has 
 
         been operated by Steve for the last nine years.  His father 
 
         operated the business for 12 years before that time.  Throughout 
 
         the entire period, Hendershot was insured by Allied.  This 
 
         insurance was the usual commercial insurance package which 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         included auto/truck collision, general liability and workers' 
 
         compensation policies.  Steve Hendershot testified that they 
 
         never had a problem with Allied Insurance before the spring of 
 
         1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An independent insurance agent, Randy Schmidt, testified 
 
         that he delivered the usual Allied renewal policies for the term 
 
         March 10, 1988 to March 10, 1989, sometime in early April 1988, 
 
         to Hendershot.  At that time, Hendershot indicated that he was 
 
         short of cash and could not pay the entire premium of $7,623.75 
 
         due at that time.  Hendershot testified that Schmidt stated to 
 
         him that he should pay one-half of the premium immediately and 
 
         the balance as quickly as possible thereafter.  Schmidt testified 
 
         that he told Hendershot that if Allied does not receive payment, 
 
         Hendershot would receive a notice of when payment had to be made.  
 
         Hendershot testified that he mailed in the first half himself and 
 
         then directed his bookkeeper to mail the second half in at a 
 
         later date.  Hendershot said that his bookkeeper, for sone reason 
 
         unknown to Hendershot, did not do so.  Journal entries in 
 
         Hendershot's books of account show that the following checks were 
 
         issued to Allied for insurance:  March 7, 1988 in the amount of 
 
         $456.00 (check #4564); April 8, 1988 for $3,827.87 (check #4659); 
 
         and May 9, 1988 for $655.74 (check #4743).  No testimony was 
 
         offered to explain these specific entries and the amounts.
 
         
 
              Hendershot testified that his bookkeeper no longer works for 
 
         him.  Hendershot testified that Schmidt showed him a "Notice of 
 
         Nonpayment of Premium" dated April 14, 1988, shortly after he 
 
         talked to Schmidt about the renewal.  He could not recall 
 
         receiving this notice at his office but stated that it may have 
 
         been received by his firm while he was absent.  This notice 
 
         stated as follows:
 
         
 
              IF WE RECEIVE EITHER THE TOTAL ACCOUNT BALANCE OR THE 
 
              MINIMUM DUE ON ACCOUNT BY 04-26-88 WE WILL CONTINUE YOUR 
 
              COVERAGE AND NOTIFY YOU OF REINSTATEMENT.  RECEIPT AFTER 
 
              THAT DATE IS CONSIDERED A REQUEST FOR A NEW POLICY EFFECTIVE 
 
              THE DATE RECEIVED, SUBJECT TO COMPANY APPROVAL....
 
         
 
              Hendershot also did not recall receiving three notices of 
 
         the expiration of his Allied policies dated May 2, 1988.  
 
         However, these notices were addressed to Schmidt.  Hendershot 
 
         stated that on May 9, 1988, he was told by Schmidt that Allied 
 
         had not received any portion of the premium.  Hendershot 
 
         testified that he then issued check #4743 in the amount of 
 
         $7,655.74, and gave it to Schmidt who said he would take it 
 
         immediately to Allied.  A copy of this check was submitted into 
 
         evidence.
 
         
 
              Schmidt testified that he assumed that Hendershot had made 
 
         his premium payments after he first talked to Hendershot in early 
 
         April.  He next talked with Hendershot when Hendershot reported a 
 
         truck accident in Cedar Rapids at the end of April.  Then, 
 
         Schmidt said he received the final notices of expiration for 
 
         Hendershot's Allied insurance policies which were dated May 2, 
 
         1988.  He said that he called Hendershot's bookkeeper who assured 
 
         him that the payments were made.  Schmidt added that he did at 
 
         some time contact Allied to inquire about Hendershot's checks but 
 
         he could not recall when this occurred.  Allied denied receiving 
 
         the checks when he did place these calls.  Schmidt testified that 
 
         on May 8, 1988, he received a call from John Rectenbaugh from the 
 
         Allied Claims Department about the Cedar Rapids truck accident in 
 
         April. He was concerned that Allied would have to pay the loss 
 
         claim regardless of any reinstatement of the policy because of 
 
         ICC rules requiring a 30 day notice before coverage could end.  
 
         Rectenbaugh asked Schmidt if he would personally secure the check 
 
         for the full premium due from Hendershot and that he, 
 
         Rectenbaugh, "would see what he could do regarding getting these 
 
         policies reinstated, because he didn't want to have a problem 
 
         with them having a loss." Rectenbaugh also gave specific 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         instructions to Schmidt as to how to mail in the checks so the 
 
         checks would go directly to him. Schmidt then obtained the check 
 
         from Hendershot on May 9, 1988, and mailed it to Allied according 
 
         to Rectenbaugh's instructions. Schmidt testified that he then 
 
         received a phone call from an underwriter at Allied, Denny Tabor, 
 
         who said that the May 9 Hendershot check was received by them but 
 
         it was not going to be cashed because Allied should never have 
 
         renewed the policy and he did not want to reinstate it.  Schmidt 
 
         stated that he waited a couple of days to see what Rectenbaugh 
 
         could do.  Then on May 13, 1988, Schmidt said he received copies 
 
         of endorsements on the Hendershot truck insurance policies which 
 
         made several changes in coverage.  Nothing in these documents 
 
         refers to workers' compensation coverage, but Schmidt said that 
 
         he assumed that Rectenbaugh was successful in reinstating all of 
 
         the Hendershot's policies.  Schmidt said that this would include 
 
         workers' compensation policies as all of the policies are handled 
 
         as a part of a single commercial insurance package.  Schmidt 
 
         stated that Allied would not prepare and send new endorsements on 
 
         a cancelled commercial insurance package.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              According to Schmidt the next thing he received was an 
 
         acknowledgement of premium payment and notice of reinstatement of 
 
         the policies dated May 25, 1988, for all of the Allied policies, 
 
         including the workers' compensation policy from May 10, 1988 to 
 
         May 10, 1989.  However, soon thereafter, Schmidt said that he 
 
         received a check from Allied.  Allied indicated that it had 
 
         applied their earned premium from March 1, 1988 to April 26, 1988 
 
         toward the May 9, 1988 Hendershot check and refunded the balance.
 
         
 
              Hendershot testified that he did not receive any 
 
         communication from Allied after giving Schmidt the check on May 
 
         9, 1988.  This began to worry Hendershot in June 1988, because he 
 
         did not receive the normal premium billing.  Hendershot stated 
 
         that Schmidt told him not to worry about it and that the policies 
 
         were reinstated.  He said that he relied on this because he would 
 
         not have allowed his insurance to lapse given his capital 
 
         investment. Finally sometime in June 1988, Hendershot said    
 
         that he called Allied and was told that his policies were 
 
         cancelled.  About the same time, Hendershot stated that Schmidt 
 
         gave him the Allied premium refund.
 
         
 
              On May 19, 1988, claimant, one of Hendershot's employees, 
 
         allegedly received his work injury while loading cattle.  Allied 
 
         officials testified that prior to this alleged work injury, the 
 
         underwriting manager decided on May 10, 1988 not to reinstate 
 
         Hendershot's insurance policies and to return all but the earned 
 
         premium to Hendershot.  Allied representatives testified that the 
 
         endorsement, prepared May 12, 1988, and the reinstatement notice, 
 
         dated May 25, 1988, were prepared and mailed out due to oversight 
 
         and error by Allied staff.  The premium billing expected by 
 
         Hendershot was, however, intercepted before it could be mailed 
 
         and this was the reason Hendershot never received it.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note: A credibility finding is necessary to this decision as 
 
         the parties placed all witness' credibility at issue in their 
 
         cross-examinations.  From their demeanor while testifying, all 
 
         witnesses were found credible.
 
         
 
              Defendant, in its brief, argues that the industrial 
 
         commissioner is without authority to apply doctrines of equitable 
 
         estoppel and reformation of contract in issues involving 
 
         cancellation of insurance policies.  However, the undersigned 
 
         disagrees with defense counsel's interpretation of Travelers 
 
         Insurance Co. v. Sneddon, 249 Iowa 393, 86 N.W.2d 87 (1957), 
 
         which states clearly that the Iowa Supreme Court has cited 
 
         favorably the case of Employer's Liability Assurance Corporation 
 
         v. Matlock, 151 Kan. 293; 98 P.2d 456.  This Kansas case holds 
 
         that the compensation commissioner has jurisdiction to equitably 
 
         cancel or reform a contract.  Furthermore, application of the 
 
         doctrine of equitable estoppel by the Iowa Industrial 
 
         Commissioner for the statute of limitation issues has also been 
 
         permitted by the courts.  Paveglio v. Firestone Tire and Rubber 
 
         Company, 167 N.W.2d 636, 638 (Iowa 1969).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the case sub judice, the evidence rather clearly shows 
 
         that claimant failed to make the required payment of the full 
 
         $7,623.75 prior to April 26, 1988.  Claimant argues that Allied's 
 
         endorsements and notices of reinstatements in May 1988, 
 
         contractually reinstated the insurance policies.  As a matter of 
 
         contract law, the undersigned must disagree because there was no 
 
         real intent on the part of Allied to reinstate.  The 
 
         reinstatement notices and endorsements were issued by mistake.
 
         
 
              However, claimant has shown by the greater weight of the 
 
         evidence that Allied's actions in this case either estopped it 
 
         from asserting a cancellation or constitute a waiver of 
 
         cancellation of the policy from April 26, 1988 through time in 
 
         early June when Schmidt and Hendershot telephoned Allied and was 
 
         informed that the policy was not reinstated.  It was not until 
 
         early June 1988, that Hendershot first realized that he must 
 
         secure replacement insurance.  The grounds for estoppel and 
 
         waiver are as follows:
 
         
 
              First, before the claim of injury of May 19, 1988, 
 
         Hendershot was relying upon Schmidt and Schmidt was relying upon 
 
         Allied's action in issuing the endorsements.  Whether or not the 
 
         agent was justified in not contacting Hendershot after being 
 
         first told by a member of the underwriting department that there 
 
         was to be no reinstatement, the agent was justified in ignoring 
 
         this call and notices of a cancellation when he received the 
 
         endorsements.  As Schmidt stated at hearing, an insurance company 
 
         would not issue new endorsements with new changes from the 
 
         previous endorsements had the policies not been reinstated.  
 
         Although the conduct relied upon by Schmidt and Hendershot was 
 
         not intended by Allied management, an insurer should not profit 
 
         from its own negligence when someone relies upon such conduct to 
 
         their disadvantage.  In any event, acts or conduct which are 
 
         insufficient to constitute a technical estoppel against a 
 
         forfeiture for failure to pay premiums, may be sufficient to 
 
         effect a waiver of forfeiture. McDonald v. Equitable L. Assur. 
 
         Soc., 185 Iowa 1008, 169 N.W. 352 (1918).  Whether or not an 
 
         insurance agent is an agent of the insurer or the insured depends 
 
         upon the circumstances of each case. 43 AM JUR 2d Sec. 110, page 
 
         108.  In this case, Schmidt was clearly the agent of the insured 
 
         in communications he received from Allied and Hendershot was 
 
         relying upon the acts of this agent in the reinstatement process.
 
         
 
              Second, the delinquent premium was solicited by Allied's 
 
         agent on May 9, 1988, on behalf of the claims department to avoid 
 
         difficulty over the truck accident claim in Cedar Rapids.  It has 
 
         been held that such solicitation of delinquent premiums for the 
 
         benefit of an insurer constitutes a waiver of cancellation.  See 
 
         43 AM JUR 2d Sec. 1642, page 639.
 
         
 
              Third, during periods of application of reinstatement of 
 
         insurance policies, courts hold either that coverage applies 
 
         during the application period or invokes equitable coverage when 
 
         there is an unreasonable delay in providing an answer to the 
 
         insured.   See 42 AM JUR 2d Sec. 458-459, pages 522-524.  In the 
 
         case sub judice, following the decision by the underwriting 
 
         manager not to reinstate on May 10, 1988, there was no notice of 
 
         nonreinstatement given to Hendershot until June 1988.  The agent 
 
         received only inconsistent communications from Allied.  This is 
 
         an unreasonable delay no matter whether Schmidt was an agent for 
 
         Allied or an agent for Hendershot.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Finally, ambiguity and any notice of cancellation as 
 
         resolved in favor of the insured.  Farmers Insurance Group v. 
 
         Meriweather, 24 N.W.2d 184 (Iowa 1974)  Commercial Standard 
 
         Insurance Company v. Haley, 282 F.Supp 16 (D.C. Iowa 1968).  In 
 
         this case, the language contained in the "Notice of.Nonpayment of 
 
         Premium" is ambiguous and unreasonable.  The notice merely states 
 
         that if the premium is received after a specified date, there is 
 
         a new application effective on the date of payment.  There is no 
 
         clear notice to an insured that there will be no coverage during 
 
         the application period should Allied decide not to reinstate. it 
 
         would be unreasonable to assume that the insured will interpret 
 
         such language as requiring him to secure insurance coverage 
 
         elsewhere during the application period.  Workers' compensation 
 
         insurance is a major expense item for small business operators 
 
         such as Hendershot.  If the insured must pay for a binder with 
 
         another insurance company, the insured would not need 
 
         reinstatement from Allied.  The undersigned doubts that Allied 
 
         would have reimbursed insured for any duel premiums paid by him 
 
         during the application period when they decided not to reinstate.
 
         
 
              Therefore, the claim of Tom Sandersfeld herein is covered by 
 
         the Allied workers' compensation insurance policy submitted into 
 
         evidence herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  All witnesses who orally testified at hearing are found 
 
         credible.  Their appearance while testifying indicated that they 
 
         were testifying truthfully.
 
         
 
              2.  Hendershot is a corporation which operates a trucking 
 
         business in the State of Iowa.  Schmidt Real Estate and 
 
         Insurance, Inc., is an independent insurance agency which has 
 
         handled Allied Mutual Insurance Company for many years.  
 
         Hendershot has purchased commercial insurance, including workers' 
 
         compensation policies, for many years from Allied prior to June 
 
         1988, as a part of a single insurance package.
 
         
 
              3.  On May 19, 1988, one of Hendershot's employees, Tom 
 
         Sandersfeld, allegedly injured himself giving rise to a claim for 
 
         workers' compensation benefits.
 
         
 
              4.  In March 1988, Hendershot was to pay a premium to Allied 
 
         for the renewal of a policy of workers' compensation insurance 
 
         effective from March 10, 1988 through March 10, 1989.  In early 
 
         April, Hendershot made an attempt to pay one-half of the premium 
 
         but was delinquent due to error in paying the balance.    As a 
 
         result of the failure to pay the full premium, Hendershot 
 
         received a Notice of Nonpayment from Allied dated April 14, 1988.  
 
         The April 14, 1988 notice stated that if payment is received by 
 
         April 26, 1988, the policy would be fully reinstated but if the 
 
         payment is received after April 26, 1988, the payment is 
 
         considered a request for a new policy effective on the date 
 
         received, subject to company approval.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  On May 9, 1988, upon the request of Allied's claims 
 
         department to avoid problems in processing a truck accident claim 
 
         arising from an accident in the latter part of April of 1988, 
 
         Schmidt, the insurance agent, solicited and received a check for 
 
         the full premium due at the time from Hendershot and this payment 
 
         was forwarded to Allied in accordance with special instructions. 
 
         The Allied claims department representative told Schmidt that he 
 
         would try to reinstate the policy when the check is received.  
 
         This check was received by Allied.  On May 10, 1988, Allied's 
 
         commercial underwriting department decided not to reinstate the 
 
         policy.  A call was placed to Schmidt informing him of this 
 
         cancellation. However, only two days later Schmidt received 
 
         written endorsements from Allied for other policies within 
 
         Hendershot's same commercial insurance package leading Schmidt to 
 
         assume that the claims department was successful in reinstating 
 
         the policy.  No other communication indicating otherwise was 
 
         received by Schmidt or Hendershot prior to May 19, 1988.  On May 
 
         25, 1988, Schmidt received Notice of Reinstatement.  However, the 
 
         next day Schmidt received a refund check for a portion of the 
 
         premium paid by Hendershot on May 9, 1988.  Finally, in early 
 
         June 1988, Schmidt and Hendershot telephoned Allied and was 
 
         informed by Allied staff that there had been no reinstatement.
 
         
 
              6.  In early June 1988, after the telephone call to Allied, 
 
         Hendershot secured replacement insurance.  Had Hendershot known 
 
         that Allied had decided not to reinstate his policy, he would 
 
         have secured replacement insurance earlier.  Hendershot relied 
 
         upon his agent to secure reinstatement of his policies.
 
         
 
              7.  The language in the notice of April 14, 1988, is 
 
         unclear, ambiguous and unconscionable.  There is no notice that 
 
         insurance coverage may lapse during the application for 
 
         reinstatement period if reinstatement is not approved.  It is 
 
         unreasonable to require insureds to pay duel insurance during an 
 
         application for reinstatement.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Allied is estopped from asserting or has waived cancellation 
 
         of its workers' compensation insurance policy for Hendershot 
 
         during the application of reinstatement period from April 26, 
 
         1988 through June 1, 1988.
 
         
 
                                      ORDER
 
         
 
              1.  Allied shall assume liability for the claim of Tom 
 
         Sandersfeld filed herein in accordance with the terms and 
 
         conditions contained in the workers' compensation policy issued 
 
         to Hendershot for the period of March 10, 1988 through March 10, 
 
         1989, policy No. ACP 7150081579.
 
         
 
              2.  Allied shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Signed and filed this 12th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Roger W. Sunleaf
 
         Attorney at Law
 
         105 N 4th St
 
         Montezuma, IA  50171
 
         
 
         Mr. David W. Stamp
 
         Attorney at Law
 
         3324 Kimball Ave
 
         P 0 Box 2696
 
         Waterloo, IA  50704-2696
 
         
 
         Mr. Thomas J. Logan
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Ave
 
         Des Moines, IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            2102
 
                                            Filed February 12, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TOM SANDERSFELD,
 
         
 
              Claimant, 
 
         
 
         vs.                                             File No. 881385
 
         
 
         STEVE HENDERSHOT d/b/a                       A R B I T R A T I O 
 
         N
 
         HENDERSHOT TRUCKING, INC.,
 
                                                         D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         ALLIED MUTUAL INSURANCE CO.,,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2102 - Estoppel
 
         
 
         
 
              Held that insurer was estopped from asserting cancellation 
 
         of insurance policy for nonpayment of premium due to insurer's 
 
         acts and conduct during the period of application for 
 
         reinstatement of insurance which lead the insurance agent and 
 
         insured to believe its was covered at the time of the work 
 
         injury.  A defense that endorsements and notice of reinstatement 
 
         were issued erroneously after a decision not to reinstate had 
 
         been made by Allied was insufficient to prevent estoppel.  Also, 
 
         it was held that insurer's notice of nonpayment was ambiguous and 
 
         unreasonable.  It is unreasonable to require insureds to secure 
 
         coverage from other insurance carriers during an application for 
 
         reinstatement period in the event the policies are not 
 
         reinstated.