Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT L. MCCLELLON,          :
 
                                          :
 
                 Claimant,                :       File No. 894090
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            IOWA SOUTHERN UTILITIES,      :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            L. McClellon, claimant, against Iowa Southern Utilities, 
 
            employer (hereinafter referred to as ISUC), a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on August 11, 1988.  On February 25, 1991 
 
            a hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee/employer relationship existed between 
 
            claimant and ISUC at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits only from August 11, 1988 through 
 
            February 23, 1991 and defendant agree that he was not 
 
            working at this time.
 
            
 
                 3.  Claimant's rate of weekly compensation shall be 
 
            $276.34.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination of this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to 
 
            disability benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 

 
            
 
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            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            hearing as to the nature and extent of the injury and 
 
            disability.  From his demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant worked for ISUC from 1972 until the time of 
 
            the injury herein on August 11, 1988.  Claimant initially 
 
            completed an apprenticeship program and began working as a 
 
            journeyman gas fitter.  This work required heavy lifting at 
 
            times including digging ditches and the operation of a 
 
            jackhammer in the construction and repair of pipelines.  In 
 
            October of 1987 pursuant to the recommendations of his 
 
            treating physician, claimant transferred to a light duty job 
 
            of meter reading.
 
            
 
                 On or about August 11, 1988, claimant injured his spine 
 
            from a slip and fall while performing the job of meter 
 
            reading.  This injury arose out and in the course of 
 
            employment.  The injury consisted of an aggravation of a 
 
            preexisting systemic inflammatory disease of the spine 
 
            called alkylosing spondylitis (hereinafter referred to as 
 
            AS).  This disease affects the area of the body where 
 
            tendons and ligaments attach to bone structures.  These 
 
            tendons and ligaments then turn into bone fusing the 
 
            vertebra of the spine.  Eventually, the entire spine is 
 
            fused in the final stages of the disease.  The underlying 
 
            disease is progressive and unrelated to claimant's work.  
 
            However, work activity including the fall which occurred on 
 
            August 11, 1988, aggravated and markedly increased symptoms 
 
            of back and neck pain and loss of range of motion.
 
            
 
                 Claimant was first diagnosed by a specialist that he 
 
            suffers from AS by physicians at the Mayo Clinic in 
 
            September 1987.  Claimant has been treated by chiropractors 
 
            and medical doctors since that time but the most recent 
 
            treating orthopedic surgeon is Louise Sparks, M.D., an 
 
            associate professor of medicine at the University of Iowa 
 
            Hospitals and Clinics, rheumotology division.  The above 
 
            findings are based primary on the views of Dr. Sparks as set 
 
            forth in her deposition of November 1989.  According to Dr. 
 
            Sparks, there is evidence to indicate that claimant had the 
 
            early stages of AS in 1972 from her examination of x-rays 
 
            taken of claimant at that time as a part of the 
 
            pre-employment physical prior to starting with ISUC.  
 
            Claimant admits in his deposition to back symptoms beginning 
 
            in the mid 1970's.  These symptoms gradually grew worse over 
 
            time and claimant began extensive treatment with Raymond 
 
            Hanks, D.C., in October of 1983.  Dr. Hanks eventually 
 
            referred claimant to Mayo in 1987 suspecting AS.
 
            
 
                 Defendant contends that claimant's increased symptoms 
 

 
            
 
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            following the fall in 1988 are the result of a progression 
 
            of the disease and not the fall.  Dr. Sparks testified that 
 
            it would be unlikely for the AS disease process to change so 
 
            dramatically after a single fall.  Clearly the initial 
 
            increase symptoms were the result of the fall.  There is 
 
            little evidence in the record to controvert claimant's 
 
            assertions that he suffered severe and lasting pain 
 
            following the fall which required extensive medical 
 
            treatment and evaluation.
 
            
 
                 As a result of the injury of August 11, 1988, claimant 
 
            has been absent from his job at ISUC since the date of 
 
            injury.  On June 13, 1990, claimant reached the point of 
 
            maximum healing from the fall.  This finding of maximum of 
 
            healing is based upon the views of Dr. Sparks.  According to 
 
            Dr. Sparks, the normal course of treatment for a person with 
 
            AS after a fall is to assume that there was a fracture of 
 
            the calcified structures of the spine.  Such a fracture can 
 
            radically increase the symptoms.  If not correctly treated, 
 
            a fracture can cause serious permanent injury.  Therefore, a 
 
            fall by a person suffering from AS requires a special course 
 
            of therapy such as immobilization to correct any possible 
 
            fracture.  At the time of her deposition, Dr. Sparks could 
 
            not render an opinion as to whether claimant had in fact 
 
            suffered such a fracture.  When asked whether claimant had 
 
            achieved maximum healing from the November 1988 fall, Dr. 
 
            Sparks stated that this would not occur until she had a 
 
            chance to complete further radiographic studies of the spine 
 
            to look for such a fracture.  According to the medical 
 
            records, Dr. Sparks eventually did schedule the studies 
 
            which consisted of a MRI and CT scans.  These scans were 
 
            reviewed and completed at the time of the examination of 
 
            claimant on June 13, 1990.  There is no mention of any 
 
            fracture in Dr. Sparks' reports following this examination.  
 
            Surely Dr. Sparks would have reported such a fracture had 
 
            she made such a finding.  Also, claimant's course of 
 
            treatment did not change and claimant was not immobilized 
 
            which Dr. Sparks would have done had she found a fracture.
 
            
 
                 It could not be found that the work injury of August 
 
            11, 1988 was a cause of permanent impairment.  Claimant 
 
            failed to show that the fall permanently altered or 
 
            accelerated the progressive course of the AS disease 
 
            process.  Dr. Sparks stated that it was possible such a fall 
 
            could do so especially if there was an untreated fracture 
 
            but she could not state this with any reasonable degree of 
 
            medical certainty.  Dr. Sparks denied that there had been 
 
            any acceleration of the progressive disease process over the 
 
            four year period prior to her treatment.  Claimant contends 
 
            that the issue was one of apportionment and since Dr. Sparks 
 
            could not apportion out the underlying disease process, all 
 
            of the disability must be work related.  This is a 
 
            misreading of Dr. Sparks' opinions as set forth in her 
 
            deposition.  The only theory of an increased impairment or 
 
            permanent exacerbation of the underlying disease process was 
 
            based upon the possibility of fracture discussed above.  
 
            According to Dr. Sparks, such a fracture would permanently 
 
            alter the course of the disease process and subsequent 
 
            treatment.  At the time of the deposition however, Dr. 
 
            Sparks had only a strong suspicion of such a fracture.  This 
 

 
            
 
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            suspicion was the reason why she ordered further testing.  
 
            It is apparent that she did not find such a fracture after 
 
            those tests were performed.  Admittedly, Dr. Sparks said 
 
            that even if she could not find such a fracture from the 
 
            tests, this would not necessarily rule out the existence of 
 
            a fracture given the limitations of the tests.  However, her 
 
            testimony that the existence of such a fracture is only a 
 
            strong suspicion remains unchanged.  Given the existence of 
 
            a serious and progressive underlying disease process, this 
 
            deputy commissioner must rely heavily upon medical opinion.  
 
            A strong suspicion by a medical expert is not the type of 
 
            evidence upon which a causal connection finding can be 
 
            based.
 
            
 
                 With reference to the requested medical expenses, which 
 
            consists of the treatment of a chiropractor, Dr. Hanks, 
 
            claimant showed that such treatment after the fall of August 
 
            11, 1988 which lasted through the summer of 1990 is causally 
 
            connected to the August 11, 1988 injury.   However, claimant 
 
            failed to show that the charges were fair and reasonable.  
 
            Claimant offered no evidence whatsoever on the 
 
            reasonableness issue and defendants in the prehearing report 
 
            refused to stipulate to the reasonableness of these 
 
            expenses.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant 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.
 
            
 
                 In the case sub judice, there was little question that 
 
            claimant suffered an aggravation injury.  Claimant's account 
 
            of the fall is believable given the medical reports and 
 
            claimant was found to be a truthful person.  The fighting 
 
            issue, however, was whether or not this injury accelerated 
 
            the underlying disease process.
 
            
 
                  II.  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 
 

 
            
 
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            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 alone 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, it could not be found that the 
 
            injury was the cause permanent impairment.  However, 
 
            claimant is entitled to temporary total disability during 
 
            the course of treatment as a result of a temporary 
 
            aggravation of the underlying preexisting condition.  Under 
 
            Iowa Code section 85.33(1) claimant can be awarded temporary 
 
            total disability benefits from the date of injury until he 
 
            returns to work or until he is medically capable of 
 
            returning to substantially similar work to the work he was 
 
            performing at the time of injury.  Although claimant is 
 
            currently unable to return to work at any capacity, claimant 
 
            failed to show that this was due to the fall of August 11, 
 
            1988.  This is clearly due to the progression of the disease 
 
            process which would have occurred regardless of the fall.  
 
            Temporary total disability benefits extend from August 11, 
 
            1988 until Dr. Sparks completed review of the tests she 
 
            requested to confirm or not whether claimant had a fracture.  
 
            This occurred on June 13, 1990 which will be the last day of 
 
            temporary total disability.  The temporary total disability 
 
            period totals 95 6/7 weeks.  According to the prehearing 
 
            report claimant has already been paid 130 weeks of temporary 
 
            total disability benefits.  Therefore, claimant is not 
 

 
            
 
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            entitled to further benefits.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of work injury.  In the case at bar, there was 
 
            no evidence that the bills were paid and no evidence from 
 
            the providers or from claimant that these bills were 
 
            reasonable.  Absent such evidence, there can be no finding 
 
            of reasonableness.  See, Anderson v. High Rise Construction 
 
            Specialist, Inc., (Appeal Decision filed July 31, 1990), 
 
            File No. 850996.  The only exception to this appeal ruling 
 
            in the undersigned's opinion, is evidence of actual payment 
 
            of the bills under the theory of Lawson v. Fordcyce, 237 
 
            Iowa 28, 50, 51 21 N.W.2d 69 (Iowa 1945).  There was no such 
 
            showing in this case.  The claim for medical benefits must 
 
            be denied.
 
            
 
                 Although claimant did not prevail in this proceeding, 
 
            claimant's case was arguable and claimant appeared to be an 
 
            honest person at hearing.  Claimant will be awarded costs.
 
            
 
                           
 
            
 
            
 
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            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 1.  The claimant for disability and medical benefits is 
 
            denied.
 
            
 
                 2.  Defendant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert J Todd
 
            Attorney at Law
 
            PO Box 1160
 
            Burlington Iowa 52601
 
            
 
            Mr John A Templer Jr
 
            Ms Ann M Ver Heul
 
            Attorneys at Law
 
            3737 Woodland Ste 437
 
            West Des Moines Iowa 50265
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108
 
                      Filed May 2, 1991
 
                      LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            ROBERT L. MCCLELLON,     :
 
                      :
 
                 Claimant, :       File No. 894090
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            IOWA SOUTHERN UTILITIES, :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-1108
 
            
 
            Non presidential, issue of medical causation.
 
            
 
 
            
 
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                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            KATHY WEST,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 894094
 
            O'BRYAN BROTHERS, INC.,  
 
                                                   A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            AMERICAN MANUFACTURERS   
 
            MUTUAL INSURANCE COMPANY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                   ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
            
 
                   I. Whether the claimant's disability is causally                 
 
                      connected to her work activities at O'Bryan 
 
                      Brothers, Inc.
 
            
 
                 II.  Whether there was substantial evidence 
 
                    presented        at the hearing in this matter 
 
                    to support a forty         percent industrial 
 
                    disability award.
 
            
 
                 III. Whether substantial record evidence was 
 
                      presented at hearing to support an award of 
 
                      86.13 penalty benefits.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed January 15, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 *****
 
            Claimant began working for O'Bryan Brothers, a manufacturer 
 
            of wearing apparel, in 1984 as a sewing machine operator.  
 
            Later on, claimant became an "order filler."  This job 
 
            involved the carrying of various items of apparel and 
 

 
            
 
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            placing them on a central overhead rail.  These items of 
 
            apparel were than rolled down the rail to be shipped to the 
 
            buyer.  The job involved a considerable amount of walking 
 
            between the storage areas and the centralized rail.  There 
 
            was also a considerable amount of reaching above shoulder 
 
            level.  Although the individual items weighed only a few 
 
            pounds, employees would commonly carry large bundles of 
 
            garments at one time.  According to claimant and fellow 
 
            employees, order fillers would usually work very fast and 
 
            hard as the job was paid on an incentive basis.  Management 
 
            at O'Bryan Brothers and fellow employees agree that claimant 
 
            was one of these hard workers.  Fellow employees agreed that 
 
            the job was physically demanding causing routine body aches 
 
            at the end of every working day.  Claimant earned 
 
            approximately $18,000 a year in this job prior to her 
 
            injury.
 
            On or about May 19, 1988, claimant suffered an injury which 
 
            arose out of and in the course of her employment at O'Bryan 
 
            Brothers.  May 19, 1988, is the time when claimant was 
 
            forced by back and leg pain to leave her employment to seek 
 
            medical treatment.  The back and leg pain was the result of 
 
            repetitive stresses and traumas occurring as a result of her 
 
            work as an order filler in the months prior to May 19, 1988.  
 
            Claimant has not returned to employment in any capacity 
 
            since May 19, 1988.  Claimant was treated by Thomas 
 
            Carlstrom, M.D., a neurosurgeon, between May 19, 1988 and 
 
            October 5, 1988.  Dr. Carlstrom diagnosed a herniated disc 
 
            in the claimant's lower spine and treated this condition 
 
            with an absence from work activity, medication and 
 
            corrective surgery.
 
            As a result of the work injury of May 19, 1988, claimant has 
 
            a 5-7 percent permanent partial impairment to the body as a 
 
            whole.  Also, claimant is permanently restricted from 
 
            lifting over 30-35 pounds at any time, lifting over 20-25 
 
            pounds repetitively and no sitting or standing over one hour 
 
            in one position.  After her release from Dr. Carlstrom's 
 
            care and the imposition of the above work restrictions by 
 
            Dr. Carlstrom, claimant called O'Bryan Brothers and, due to 
 
            the restrictions, she did not think it was possible for her 
 
            to return to the job of order filler or sewing machine 
 
            operator.  O'Bryan Brothers' representative, Verda Morris, 
 
            agreed with claimant on this aspect.  Morris testified at 
 
            hearing that she might be able to find or create a job to 
 
            fit within claimant's work restrictions.  However, no job 
 
            had been offered to claimant since O'Bryan Brothers has 
 
            learned of claimant's work restrictions.  After claimant 
 
            discovered that she would not be able to return to work, she 
 
            started attending a local community college and obtained an 
 
            associate of arts degree.  At the present time she is 
 
            enrolled as a full-time student seeking a four year 
 
            baccalaureate degree in social work.  This educational 
 
            effort has been solely at her own expense.
 
            The findings of a work injury herein and that this injury 
 
            caused permanent partial impairment are based upon the views 
 

 
            
 
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            of the treating physician, Dr. Carlstrom, and the views of a 
 
            treating chiropractor, Charles Manuel, D.C., who treated 
 
            claimant in October 1987, November 1987 and February 1988.  
 
            Both of these doctors agree that although claimant may have 
 
            had prior back surgery in 1984 and some back problems in 
 
            October and November of 1987, the herniated disc found by 
 
            Dr. Carlstrom could not have occurred prior to February 
 
            1988.  They also stated that from their observations, 
 
            claimant only had repetitive stress on her back in her work 
 
            at O'Bryan Brothers.  Dr. Carlstrom had previously operated 
 
            on claimant in 1984.  He stated that claimant had a long 
 
            history of back problems and was predisposed to easy 
 
            herniations of the spinal disc.  The 1984 surgery involved 
 
            the repair of three herniated discs of claimant's spine when 
 
            she was only 24 years old.  Dr. Carlstrom felt that the 
 
            herniation he found in May 1988 was a new herniation and 
 
            unrelated to the 1984 problems.  Defendants point to a prior 
 
            injury in which claimant allegedly fell from a pickup in 
 
            October 1987.  However, both Dr. Carlstrom and Dr. Manuel 
 
            who actually treated claimant after this supposed injury, 
 
            felt that the injury would not be a contributing factor to 
 
            the May 1988 herniation.
 
            The only medical evidence offered by defendants to support 
 
            their denial of the claim was a report from a one time 
 
            evaluator retained after this case was set for hearing.  
 
            Scott Kelly, M.D., an orthopedic surgeon, reported that he 
 
            examined claimant on May 17, 1990, two years after the 
 
            alleged injury, and stated that:  "It was difficult to 
 
            attribute her back pain specifically to work or outside 
 
            activity because she does not know what brought on the leg 
 
            pain."  Dr. Kelly places a great deal of emphasis in his 
 
            report on the injury of October 1987 involving the pickup.  
 
            It is not clear from his report whether he reviewed the 
 
            depositions of Dr. Manuel or actually talked to Dr. Manuel.  
 
            In that deposition, Dr. Manuel stated that claimant's 
 
            symptoms after the fall of October 1987 were different from 
 
            the problems he later found in November and February of 1987 
 
            which he attributes to an underlying back problem.  It is 
 
            also not clear whether Dr. Kelly was familiar with 
 
            claimant's job at O'Bryan Brothers.  Both Dr. Carlstrom and 
 
            Dr. Manuel have stated that they were fully aware of 
 
            claimant's job duties.
 
            In their denial of the claim, defendants also relied upon 
 
            insurance forms completed by claimant which initially stated 
 
            that after she first sought treatment in 1988 that the 
 
            problems were not related to her work.  Claimant did not 
 
            deny that she completed the forms in that manner.  However, 
 
            she stated that she did not know what was causing her pain 
 
            at the time.  She only suspected that her work was the 
 
            problem.  It was Dr. Carlstrom who, after an investigation 
 
            of claimant's history, told claimant that her problems were 
 
            worked related and that these claims should be treated as 
 
            workers' compensation.
 
            As a result of the work injury of May 19, 1988, claimant has 
 

 
            
 
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            suffered a 40 percent loss of earning capacity.  Although 
 
            she had prior back problems and back surgery, claimant had 
 
            no functional impairments or ascertainable disabilities and 
 
            was fully able to perform her work which involved repetitive 
 
            lifting and prolonged walking and standing.  As a result of 
 
            her work injury, claimant's physical condition prevents her 
 
            from returning to her former work at O'Bryan Brothers or any 
 
            other work which requires claimant to violate her work 
 
            restrictions.  Claimant is 30 years of age and relatively 
 
            young.  Claimant has a high school education and is 
 
            attempting vocational rehabilitation education.  Claimant's 
 
            past employment primarily consists of work in nursing homes 
 
            which she can no longer perform due to her lifting 
 
            restrictions.  Claimant has suffered a significant loss of 
 
            actual earnings when she lost her $10 per hour job at 
 
            O'Bryan Brothers.  Due to her attempts at vocational 
 
            rehabilitation through education, claimant is understandably 
 
            not available at the present time for full-time work.  
 
            However, she has applied for part-time work but with little 
 
            success to date.  Defendants have not assisted claimant in 
 
            any manner with her attempts at vocational rehabilitation.
 
            Defendants contend that their attempts at vocational 
 
            rehabilitation has been frustrated by claimant's lack of 
 
            cooperation with the retained vocational rehabilitation 
 
            consultant, Connie Janssen.  However, Connie Janssen's 
 
            testimony at hearing indicated that she was hired primarily 
 
            for the purpose of testifying as an expert at the hearing 
 
            for the defense rather than vocational rehabilitation.  She 
 
            was not retained until after the case was scheduled for 
 
            hearing.  Also, Janssen testified that her attempts to 
 
            secure permission from claimant for an "initial evaluation" 
 
            ended when it became apparent that her evaluation could not 
 
            be completed "prior to hearing."
 
            Defendants have denied the workers' compensation claims of 
 
            Kathy West with reference to the work injury found herein 
 
            since the claim was made in August 1988.  In an answer to 
 
            interrogatories proposed by claimant, defendants stated that 
 
            their denial of the claim is based upon the following:  
 
            claimant's congenital problems; the October 1987 injury; 
 
            claimant's oral statements to co-workers that her problems 
 
            were hereditary; claimant's statements on insurance claim 
 
            forms filed in 1988 that the condition was not work related; 
 
            and, the views of John Kelly, M.D.  It is found that 
 
            defendants' denial of the claim is unreasonable.  No 
 
            evidence was offered from co-workers to support the response 
 
            to interrogatories.  Dr. Carlstrom first indicated to 
 
            defendants on October 5, 1988, that claimant's injury was 
 
            the result of a cumulative trauma from her work at 
 
            O'Bryan's.  In March 1989, a medical consultant retained by 
 
            defendants verified to the defendant insurance carrier that 
 
            Dr. Carlstrom felt claimant's back problems in May 1988 were 
 
            work related after viewing a video tape of the job.
 
            Not until May 1990, only after this matter was set for 
 
            hearing, did defendants obtain a supportive medical opinion.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            First, the securing of this opinion does not justify a 
 
            previous denial of the claim which was not based upon any 
 
            medical opinion.  A claims practice which denies a claim 
 
            without investigation and without a concurrent medical 
 
            opinion is unreasonable.  Secondly, Dr. Kelly's only opinion 
 
            was that the determination would be "difficult."  In his 
 
            deposition, Dr. Carlstrom also stated that he too had some 
 
            difficulty identifying the cause of claimant's problems.  It 
 
            was only after Dr. Carlstrom investigated claimant's history 
 
            more thoroughly that he arrived at the conclusion that 
 
            claimant's problems were solely the result of her work at 
 
            O'Bryan Brothers.  There was no evidence that defendants 
 
            asked Dr. Kelly to pursue the matter fully.  Had he done so, 
 
            he may have very well have arrived at the same conclusion as 
 
            Dr. Carlstrom.  Also, to base a denial upon the fact that 
 
            claimant herself was unsure of the cause of her problems and 
 
            filled out insurance forms accordingly is again very 
 
            unreasonable.  Physicians in this case agree that 
 
            identification of the cause was difficult even for trained 
 
            medical experts.  Finally, basing a denial upon the alleged 
 
            fall in October 1987, indicates that defendants failed to 
 
            discuss the matter with the treating chiropractor who 
 
            rejects any causal connection of claimant's problems at that 
 
            time with the May 1988 injury.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed January 15, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
              I.  Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant 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.
 
            It is not necessary that claimant prove her disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever, the injury 
 
            date coincides with the time claimant was compelled by her 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            pain to give up her job.  This date was then utilized in 
 
            determining rate and the timeliness of the claim.
 
            In the case sub judice, the lay and medical evidence was 
 
            more than sufficient to support claimant's claim that she 
 
            suffered a cumulative or gradual work injury at the time she 
 
            was compelled by her pain to leave work.
 
             II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent 
 
            disability to which claimant is entitled.  As the claimant 
 
            has shown that the work injury was a cause of a permanent 
 
            physical impairment or limitation upon activity involving 
 
            the body as a whole, the degree of permanent disability must 
 
            be measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical 
 
            condition has resulted in an industrial disability is 
 
            determined from examination of several factors.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            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.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            In the case sub judice, it was found that claimant has 
 
            suffered a 40 percent loss of her earning capacity as a 
 
            result of the work injury.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 200 weeks of 
 
            permanent partial disability benefits under Iowa Code 
 
            section 85.34(2)(u) which is 40 percent of 500 weeks, the 
 
            maximum allowable for an injury to the body as a whole in 
 
            that subsection.
 
            The parties stipulated as to the extent of healing period 
 
            benefits to which claimant is entitled should a work injury 
 
            be found.  Claimant will be awarded such benefits according 
 
            to this stipulation.
 
            III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            for treatment of a work injury.  In the case at bar, the 
 
            parties stipulated that the requested medical expenses were 
 
            causally connected to the back condition upon which was the 
 
            subject of this litigation.  The only dispute was the causal 
 
            connection of the condition to a work injury.  In light of 
 
            the finding of a work injury, the stipulation applies and 
 
            the expenses will be awarded.
 
             IV.  Finally, claimant seeks additional weekly benefits 
 
            under Iowa Code section 86.13.  The unnumbered last 
 
            paragraph of Iowa Code section 86.13 states as follows:
 
            If a delay in commencement or termination of benefits occurs 
 
            without reasonable or probable cause or excuse, the 
 
            industrial commissioner shall award benefits in addition to 
 
            those benefits payable under this chapter, or chapters 85, 
 
            85A, or 85B, up to fifty percent of the amount of benefits 
 
            that were unreasonably delayed or denied.
 
            *****
 
            Turning to the case sub judice, it is rather apparent that 
 
            the claim was not investigated.  Had there been a reasonable 
 
            investigation at the time the claim was denied in the fall 
 
            of 1988, the only evidence available would have supported 
 
            claimant's case.  It is also apparent that defendants did 
 
            not and could not have relied upon the views of Dr. Kelly in 
 
            this denial of the claim as the opinions were not obtained 
 
            in a normal routine investigation process but only in 
 
            anticipation of litigation shortly before the hearing in 
 
            this case.  At a minimum, to be "fairly debatable" an 
 
            insurer's denial of claim must have the support of medical 
 
            opinion if the claim itself has a supportive medical 
 
            opinion.  This was not done in this case.*****Therefore, an 
 
            additional 10 percent of permanent partial disability 
 
            benefits appears to be a proper penalty for the unfair 
 
            claims practices shown in this case.  These payments should 
 
            be made from the date defendants first became aware that the 
 
            injury was work related by Dr. Carlstrom, October 5, 1988.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                    ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred thirty-five and 20/l00 dollars ($235.20) per 
 
            week from October 6, 1988.
 
            That defendants shall pay to claimant healing period 
 
            benefits from May 20, 1988 through October 5, 1988 at the 
 
            rate of two hundred thirty-five and 20/l00 dollars ($235.20) 
 
            per week as stipulated by the parties.
 
            That defendants shall pay an additional fifty (50) weeks of 
 
            permanent partial disability benefits for an unreasonable 
 
            denial of this claim.  These payments shall be due from 
 
            October 5, 1988.
 
            That defendants shall pay the medical expenses and mileage 
 
            expenses at the rate of twenty-one cents ($.21) per mile 
 
            listed in the prehearing report.  Claimant shall be 
 
            reimbursed for any of these expenses paid by her.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Otherwise, defendants shall pay the provider directly along 
 
            with any lawful late payment penalties imposed upon the 
 
            account by the provider.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            That defendants shall receive credit for previous payment of 
 
            benefits under a nonoccupational group insurance plan, if 
 
            applicable and appropriate, under Iowa Code section 85.38(2) 
 
            less any tax deductions from those payments.
 
            That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            That defendants shall file activity reports on the payment 
 
            of this award as requested by this agency pursuant to 
 
            Division of Industrial Services rule 343 IAC 3.l.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                               INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            218 6th Avenue  STE 300
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             4000.2
 
                                             Filed March 17, 1993
 
                                             BYRON K. ORTON
 
                                             LPW
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            KATHY WEST,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 894094
 
            O'BRYAN BROTHERS, INC.,  
 
                                                 A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            AMERICAN MANUFACTURERS   
 
            MUTUAL INSURANCE COMPANY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            4000.2
 
            
 
                 To avoid penalty for denial of a claim there must be a 
 
            medical opinion to support a denial of the claim if that 
 
            claim has the support of a treating physician.  A later 
 
            opinion obtained only in preparation for trial on the issue 
 
            of a claim for penalty benefits under Iowa Code section 
 
            86.13 cannot justify a prior denial of a claim unsupported 
 
            by medical opinion.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KATHY WEST,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 894094
 
            O'BRYAN BROTHERS, INC.,       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MANUFACTURERS        :
 
            MUTUAL INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Kathy 
 
            West, claimant, against O'Bryan Brothers, Inc., employer 
 
            (hereinafter referred to as O'Bryan), and American 
 
            Manufacturers Mutual Insurance Company, insurance carrier, 
 
            defendants, for workers' compensation benefits as a result 
 
            of an alleged injury on May 19, 1988.  On September 10, 
 
            1990, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and O'Bryan Brothers at the time of the alleged 
 
            injury.
 
            
 
                 2.  If defendants are found liable for the alleged 
 
            injury, claimant is entitled to temporary total disability 
 
            or healing period benefits from May 20, 1988 through October 
 
            5, 1988.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            shall begin as of October 6, 1988.
 
            
 
                 5.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $235.20.
 
            
 
                 6.  With reference to the requested medical benefits, 
 
            the medical bills submitted by claimant at hearing were fair 
 
            and reasonable and the providers would testify that these 
 
            bills were incurred for reasonable and necessary treatment 
 
            and that the defendants are not offering contrary evidence.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of her employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                  IV.  The extent of claimant's entitlement to addi
 
            tional penalty benefits for an unreasonable denial of her 
 
            claim.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant began working for O'Bryan Brothers, a manufac
 
            turer of wearing apparel, in 1984 as a sewing machine opera
 
            tor.  Later on, claimant became an "order filler."  This job 
 
            involved the carrying of various items of apparel and plac
 
            ing them on a central overhead rail.  These items of apparel 
 
            were than rolled down the rail to be shipped to the buyer.  
 
            The job involved a considerable amount of walking between 
 
            the storage areas and the centralized rail.  There was also 
 
            a considerable amount of reaching above shoulder level.  
 
            Although the individual items weighed only a few pounds, 
 
            employees would commonly carry large bundles of garments at 
 
            one time.  According to claimant and fellow employees, order 
 
            fillers would usually work very fast and hard as the job was 
 
            paid on an incentive basis.  Management at O'Bryan Brothers 
 
            and fellow employees agree that claimant was one of these 
 
            hard workers.  Fellow employees agreed that the job was 
 
            physically demanding causing routine body aches at the end 
 
            of every working day.  Claimant earned approximately $18,000 
 
            a year in this job prior to her injury.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 On or about May 19, 1988, claimant suffered an injury 
 
            which arose out of and in the course of her employment at 
 
            O'Bryan Brothers.  May 19, 1988, is the time when claimant 
 
            was forced by back and leg pain to leave her employment to 
 
            seek medical treatment.  The back and leg pain was the 
 
            result of repetitive stresses and traumas occurring as a 
 
            result of her work as an order filler in the months prior to 
 
            May 19, 1988.  Claimant has not returned to employment in 
 
            any capacity since May 19, 1988.  Claimant was treated by 
 
            Thomas Carlstrom, M.D., a neurosurgeon, between May 19, 1988 
 
            and October 5, 1988.  Dr. Carlstrom diagnosed a herniated 
 
            disc in the claimant's lower spine and treated this condi
 
            tion with an absence from work activity, medication and cor
 
            rective surgery.
 
            
 
                 As a result of the work injury of May 19, 1988, 
 
            claimant has a 5-7 percent permanent partial impairment to 
 
            the body as a whole.  Also, claimant is permanently 
 
            restricted from lifting over 30-35 pounds at any time, lift
 
            ing over 20-25 pounds repetitively and no sitting or stand
 
            ing over one hour in one position.  After her release from 
 
            Dr. Carlstrom's care and the imposition of the above work 
 
            restrictions by Dr. Carlstrom, claimant called O'Bryan 
 
            Brothers and, due to the restrictions, she did not think it 
 
            was possible for her to return to the job of order filler or 
 
            sewing machine operator.  O'Bryan Brothers' representative, 
 
            Verda Morris, agreed with claimant on this aspect.  Morris 
 
            testified at hearing that she might be able to find or 
 
            create a job to fit within claimant's work restrictions.  
 
            However, no job had been offered to claimant since O'Bryan 
 
            Brothers has learned of claimant's work restrictions.  After 
 
            claimant discovered that she would not be able to return to 
 
            work, she started attending a local community college and 
 
            obtained an associate of arts degree.  At the present time 
 
            she is enrolled as a full time student seeking a four year 
 
            baccalaureate degree in social work.  This educational 
 
            effort has been solely at her own expense.
 
            
 
                 The findings of a work injury herein and that this 
 
            injury caused permanent partial impairment are based upon 
 
            the views of the treating physician, Dr. Carlstrom, and the 
 
            views of a treating chiropractor, Charles Manuel, D.C., who 
 
            treated claimant in October 1987, November 1987 and February 
 
            1988.  Both of these doctors agree that although claimant 
 
            may have had prior back surgery in 1984 and some back prob
 
            lems in October and November of 1987, the herniated disc 
 
            found by Dr. Carlstrom could not have occurred prior to 
 
            February 1988.  They also stated that from their observa
 
            tions, claimant only had repetitive stress on her back in 
 
            her work at O'Bryan Brothers.  Dr. Carlstrom had previously 
 
            operated on claimant in 1984.  He stated that claimant had a 
 
            long history of back problems and was predisposed to easy 
 
            herniations of the spinal disc.  The 1984 surgery involved 
 
            the repair of three herniated discs of claimant's spine when 
 
            she was only 24 years old.  Dr. Carlstrom felt that the her
 
            niation he found in May 1988 was a new herniation and unre
 
            lated to the 1984 problems.  Defendants point to a prior 
 
            injury in which claimant allegedly fell from a pickup in 
 
            October 1987.  However, both Dr. Carlstrom and Dr. Manuel 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            who actually treated claimant after this supposed injury, 
 
            felt that the injury would not be a contributing factor to 
 
            the May 1988 herniation.
 
            
 
                 The only medical evidence offered by defendants to sup
 
            port their denial of the claim was a report from a one time 
 
            evaluator retained after this case was set for hearing.  
 
            Scott Kelly, M.D., an orthopedic surgeon, reported that he 
 
            examined claimant on May 17, 1990, two years after the 
 
            alleged injury, and stated that:  "It was difficult to 
 
            attribute her back pain specifically to work or outside 
 
            activity because she does not know what brought on the leg 
 
            pain."  Dr. Kelly places a great deal of emphasis in his 
 
            report on the injury of October 1987 involving the pickup.  
 
            It is not clear from his report whether he reviewed the 
 
            depositions of Dr. Manuel or actually talked to Dr. Manuel.  
 
            In that deposition, Dr. Manuel stated that claimant's symp
 
            toms after the fall of October 1987 were different from the 
 
            problems he later found in November and February of 1987 
 
            which he attributes to an underlying back problem.  It is 
 
            also not clear whether Dr. Kelly was familiar with 
 
            claimant's job at O'Bryan Brothers.  Both Dr. Carlstrom and 
 
            Dr. Manuel have stated that they were fully aware of 
 
            claimant's job duties.
 
            
 
                 In their denial of the claim, defendants also relied 
 
            upon insurance forms completed by claimant which initially 
 
            stated that after she first sought treatment in 1988 that 
 
            the problems were not related to her work.  Claimant did not 
 
            deny that she completed the forms in that manner.  However, 
 
            she stated that she did not know what was causing her pain 
 
            at the time.  She only suspected that her work was the prob
 
            lem.  It was Dr. Carlstrom who, after an investigation of 
 
            claimant's history, told claimant that her problems were 
 
            worked related and that these claims should be treated as 
 
            workers' compensation.
 
            
 
                 As a result of the work injury of May 19, 1988, 
 
            claimant has suffered a 40 percent loss of earning capacity.  
 
            Although she had prior back problems and back surgery, 
 
            claimant had no functional impairments or ascertainable dis
 
            abilities and was fully able to perform her work which 
 
            involved repetitive lifting and prolonged walking and stand
 
            ing.  As a result of her work injury, claimant's physical 
 
            condition prevents her from returning to her former work at 
 
            O'Bryan Brothers or any other work which requires claimant 
 
            to violate her work restrictions.  Claimant is 30 years of 
 
            age and relatively young.  Claimant has a high school educa
 
            tion and is attempting vocational rehabilitation education.  
 
            Claimant's past employment primarily consists of work in 
 
            nursing homes which she can no longer perform due to her 
 
            lifting restrictions.  Claimant has suffered a significant 
 
            loss of actual earnings when she lost her $10 per hour job 
 
            at O'Bryan Brothers.  Due to her attempts at vocational 
 
            rehabilitation through education, claimant is understandably 
 
            not available at the present time for full time work.  
 
            However, she has applied for part-time work but with little 
 
            success to date.  Defendants have not assisted claimant in 
 
            any manner with her attempts at vocational rehabilitation.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Defendants contend that their attempts at vocational 
 
            rehabilitation has been frustrated by claimant's lack of 
 
            cooperation with the retained vocational rehabilitation con
 
            sultant, Connie Janssen.  However, Connie Janssen's testi
 
            mony at hearing indicated that she was hired primarily for 
 
            the purpose of testifying as an expert at the hearing for 
 
            the defense rather than vocational rehabilitation.  She was 
 
            not retained until after the case was scheduled for hearing.  
 
            Also, Janssen testified that her attempts to secure permis
 
            sion from claimant for an "initial evaluation" ended when it 
 
            became apparent that her evaluation could not be completed 
 
            "prior to hearing."
 
            
 
                 Defendants have denied the workers' compensation claims 
 
            of Kathy West with reference to the work injury found herein 
 
            since the claim was made in August 1988.  In an answer to 
 
            interrogatories proposed by claimant, defendants stated that 
 
            their denial of the claim is based upon the following:  
 
            claimant's congenital problems; the October 1987 injury; 
 
            claimant's oral statements to co-workers that her problems 
 
            were hereditary; claimant's statements on insurance claim 
 
            forms filed in 1988 that the condition was not work related; 
 
            and, the views of John Kelly, M.D.  It is found that defen
 
            dants' denial of the claim is unreasonable.  No evidence was 
 
            offered from co-workers to support the response to inter
 
            rogatories.  Dr. Carlstrom first indicated to defendants on 
 
            October 5, 1988, that claimant's injury was the result of a 
 
            cumulative trauma from her work at O'Bryan's.  In March 
 
            1989, a medical consultant retained by defendants verified 
 
            to the defendant insurance carrier that Dr. Carlstrom felt 
 
            claimant's back problems in May 1988 were work related after 
 
            viewing a video tape of the job.
 
            
 
                 Not until May 1990, only after this matter was set for 
 
            hearing, did defendants obtain a supportive medical opinion.  
 
            First, the securing of this opinion does not justify a pre
 
            vious denial of the claim which was not based upon any medi
 
            cal opinion.  A claims practice which denies a claim without 
 
            investigation and without a concurrent medical opinion is 
 
            unreasonable.  Secondly, Dr. Kelly's only opinion was that 
 
            the determination would be "difficult."  In his deposition, 
 
            Dr. Carlstrom also stated that he too had some difficulty 
 
            identifying the cause of claimant's problems.  It was only 
 
            after Dr. Carlstrom investigated claimant's history more 
 
            thoroughly that he arrived at the conclusion that claimant's 
 
            problems were solely the result of her work at O'Bryan 
 
            Brothers.  There was no evidence that defendants asked Dr. 
 
            Kelly to pursue the matter fully.  Had he done so, he may 
 
            have very well have arrived at the same conclusion as Dr. 
 
            Carlstrom.  Also, to base a denial upon the fact that 
 
            claimant herself was unsure of the cause of her problems and 
 
            filled out insurance forms accordingly is again very unrea
 
            sonable.  Physicians in this case agree that identification 
 
            of the cause was difficult even for trained medical experts.  
 
            Finally, basing a denial upon the alleged fall in October 
 
            1987, indicates that defendants failed to discuss the matter 
 
            with the treating chiropractor who rejects any causal con
 
            nection of claimant's problems at that time with the May 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1988 injury.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant 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.
 
            
 
                 It is not necessary that claimant prove her disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever, the injury 
 
            date coincides with the time claimant was compelled by her 
 
            pain to give up her job.  This date was then utilized in 
 
            determining rate and the timeliness of the claim.
 
            
 
                 In the case sub judice, the lay and medical evidence 
 
            was more than sufficient to support claimant's claim that 
 
            she suffered a cumulative or gradual work injury at the time 
 
            she was compelled by her pain to leave work.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 40 percent loss of her earning capacity as a 
 
            result of the work injury.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 200 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is 40 percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            section.
 
            
 
                 The parties stipulated as to the extent of healing 
 
            period benefits to which claimant is entitled should a work 
 
            injury be found.  Claimant will be awarded such benefits 
 
            according to this stipulation.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  In the case at bar, the 
 
            parties stipulated that the requested medical expenses were 
 
            causally connected to the back condition upon which was the 
 
            subject of this litigation.  The only dispute was the causal 
 
            connection of the condition to a work injury.  In light of 
 
            the finding of a work injury, the stipulation applies and 
 
            the expenses will be awarded.
 
            
 
                  IV.  Finally, claimant seeks additional weekly bene
 
            fits under Iowa Code section 86.13.  The unnumbered last 
 
            paragraph of Iowa Code section 86.13 states as follows:
 
            
 
                 If a delay in commencement or termination of bene
 
                 fits 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.
 
            
 
                 The Iowa Supreme Court has not delineated the precise 
 
            legal tests to be utilized in applying this statutory 
 
            language.  However, guidance can be gleamed from Iowa 
 
            Supreme Court decisions involving actions against insurance 
 
            carriers or "bad faith" denial of an insurance claim in the 
 
            law of torts.  Pirkl v. Northwestern Mut. Ins. Ass'n, 348 
 
            N.W.2d 633 (Iowa 1984); M-Z Enterprises v. Hawkeye-Security 
 
            Ins. Co., 318 N.W.2d 408, 414-15 (Iowa 1982).  In M-Z 
 
            Enterprises, although the court denied the opportunity to 
 
            create a separate cause of action in this state for a bad 
 
            faith denial of a claim, the court stated that in those 
 
            states which recognize such a cause of action, in order to 
 
            prevail, the insured must show the absence of a reasonable 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            basis for denying benefits and the insurer's knowledge or 
 
            reckless disregard of the lack of reasonable basis for deny
 
            ing the claim.  When the claim is "fairly debatable" the 
 
            insurer is entitled to debate it, whether the debate con
 
            cerns a matter of fact or law."  M-Z Enterprises at 415 
 
            quoting favorably Anderson v. Continental Ins. Co., 85 
 
            Wis.2d 675.
 
            
 
                 Application of the bad faith theory to workers' compen
 
            sation cases has been recently dealt with by the Wisconsin 
 
            Supreme Court who instructed their Wisconsin hearing 
 
            officers as follows in applying its own statutory bad faith 
 
            provisions which are similar to our workers' compensation 
 
            statute:
 
            
 
                 [T]he issue of bad faith is reached only after a 
 
                 final award has been made to the claimant.  A 
 
                 hearing examiner then examines the record to 
 
                 determine if there was any credible evidence which 
 
                 would demonstrate that the claim was fairly debat
 
                 able.  If the examiner finds that there is no 
 
                 credible evidence which the employer or insurer 
 
                 could rely upon to conclude that the claim was 
 
                 fairly debatable, the examiner then determines if 
 
                 the employer's or insurer's actions in denying 
 
                 payment were reasonable.  This test is an objec
 
                 tive one from the standpoint of the employer or 
 
                 insurer:  Would a reasonable employer or insurer 
 
                 under like or similar circumstances have denied or 
 
                 delayed payment on the claim.
 
            
 
                 When deciding whether the employer's actions were 
 
                 reasonable, it is necessary to determine if the 
 
                 claim was properly investigated and if the results 
 
                 of the investigation were subject to a reasonable 
 
                 evaluation and review....The examiner must base 
 
                 the decision on the information or data that the 
 
                 employer or insurer had in its possession at the 
 
                 time the claim for benefits was denied and how 
 
                 that information was used.  Kimberly-Clark v. 
 
                 Labor & Ind. Rev. Com'n, 138 Wis.2d 58; 405 N.W.2d 
 
                 684, 688 (1987).
 
            
 
                 The above approach by the State of Wisconsin is a logi
 
            cal and objective approach to the issue of bad faith.  
 
            Therefore, in absence of any other precise test delineated 
 
            by higher authority, the Wisconsin test will be utilized in 
 
            this case.  Furthermore, Iowa Code section 507B.4(9), which 
 
            contains a statutory laundry list of unfair insurance prac
 
            tices, is also a helpful tool in assessing the reasonable
 
            ness of claimant's adjustment activity.
 
            
 
                 Turning to the case sub judice, it is rather apparent 
 
            that the claim was not investigated.  Had there been a rea
 
            sonable investigation at the time the claim was denied in 
 
            the fall of 1988, the only evidence available would have 
 
            supported claimant's case.  It is also apparent that defen
 
            dants did not and could not have relied upon the views of 
 
            Dr. Kelly in this denial of the claim as the opinions were 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            not obtained in a normal routine investigation process but 
 
            only in anticipation of litigation shortly before the hear
 
            ing in this case.  At a minimum, to be "fairly debatable" an 
 
            insurer's denial of claim must have the support of medical 
 
            opinion if the claim itself has a supportive medical opin
 
            ion.  This was not done in this case.  It seems rather obvi
 
            ous that the insurance carrier in this case compelled 
 
            claimant to file an action to initiate its investigation of 
 
            the claim.  Defendants' actions in this matter would also 
 
            probably constitute an unfair claims practice under applica
 
            ble statutes.  Therefore, an additional 10 percent of perma
 
            nent partial disability benefits appears to be a proper 
 
            penalty for the unfair claims practices shown in this case.  
 
            These payments should be made from the date defendants first 
 
            became aware that the injury was work related by Dr. 
 
            Carlstrom, October 5, 1988.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred thirty-five and 20/l00 dollars ($235.20) per 
 
            week from October 6, 1988.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from May 20, 1988 through October 5, 1988 at the 
 
            rate of two hundred thirty-five and 20/l00 dollars ($235.20) 
 
            per week as stipulated by the parties.
 
            
 
                 3.  Defendants shall pay an additional fifty (50) weeks 
 
            of permanent partial disability benefits for an unreasonable 
 
            denial of this claim.  These payments shall be due from 
 
            October 5, 1988.
 
            
 
                 4.  Defendants shall pay the medical expenses and 
 
            mileage expenses at the rate of twenty-one cents ($.21) per 
 
            mile listed in the prehearing report.  Claimant shall be re
 
            imbursed for any of these expenses paid by her.  Otherwise, 
 
            defendants shall pay the provider directly along with any 
 
            lawful late payment penalties imposed upon the account by 
 
            the provider.
 
            
 
                 5.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 6.  Defendants shall receive credit for previous pay
 
            ment of benefits under a nonoccupational group insurance 
 
            plan, if applicable and appropriate, under Iowa Code section 
 
            85.38(2) less any tax deductions from those payments.
 
            
 
                 7.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 8.  Defendants shall pay the costs of this action pur
 
            suant to Division of Industrial Services rule 343 IAC 4.33, 
 
            including reimbursement to claimant for any filing fees paid 
 
            in this case.
 
            
 
                 9.  Defendants shall file activity reports on the pay
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services rule 343 IAC 3.l.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of January, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Bldg
 
            Des Moines  IA  50309
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            218 6th Ave  STE 300
 
            P O Box 9130
 
            Des Moines  IA  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           4000.2
 
                           Filed January 15, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KATHY WEST,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 894094
 
            O'BRYAN BROTHERS, INC.,       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MANUFACTURERS        :
 
            MUTUAL INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            4000.2
 
            To avoid penalty for denial of a claim there must be a 
 
            medical opinion to support a denial of the claim if that 
 
            claim has the support of a treating physician.  A later 
 
            opinion obtained only in preparation for trial on the issue 
 
            of a claim for penalty benefits under Iowa Code section 
 
            86.13 cannot justify a prior denial of a claim unsupported 
 
            by medical opinion.