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.