1803 July 24, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : MICHAEL J. HOHENFIELD, : : File Nos. 853502, 894171, Claimant, : 931341, 931342, 931343, : 931344, 931345 & 931346 vs. : : A R B I T R A T I O N SNAP-ON TOOLS CORP., : : D E C I S I O N Employer, : : and : : ROYAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant was awarded a 40 percent permanent partial disability due to a bilateral shoulder injury. Claimant was severely restricted to lifting 25 pounds or less and to working within an imaginary square between the waist and the shoulders. Claimant was terminated from his position. He returned to college and completed his bachelor's degree in human services. At the time of the hearing, claimant had a position as a part-time security guard for $4.25 per hour. Claimant had no full time job prospects in his field. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MICHAEL J. HOHENFIELD, : : File Nos. 853502, 894171, Claimant, : 931341, 931342, 931343, : 931344, 931345 & 931346 vs. : : A R B I T R A T I O N SNAP-ON TOOLS CORP., : : D E C I S I O N Employer, : : and : : ROYAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE These are petitions in arbitration upon the petitions of claimant, Michael J. Hohenfield, against his employer, Snap-On Tools Corporation, and its insurance carrier, Royal Insurance Company, defendants. The cases were heard on April 30, 1991, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant; wife of claimant; Lee Gunderson, personnel manager; John C. Garfield, Ph.D.; Shirley Haveland, personnel specialist; and, Diane McGuire, rehabilitation specialist. Additionally, the record consists of joint exhibits 1-5 and claimant's exhibits A-H and J. issues The issues to be determined are: 1) whether claimant received injuries which arose out of and in the course of employ ment; 2) whether there are causal relationships between the alleged injuries and the disability; and, 3) whether claimant is entitled to temporary disability/healing period benefits or per manent partial disability benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 43 years old. He is married with three chil dren. He is a veteran and has served in the Iowa National Guard. Claimant commenced his employment with defendant employer on November 6, 1969. He was hired to work in the brake department where he performed various welding duties. Later claimant oper ated a press brake. Claimant's duties included setting up the Page 2 machine and bending metal parts for toolboxes. This task involved repetitive movements. Claimant was required to push, pull, lift, bend and lean. In mid-1985, claimant began noticing pain in his shoulders and into his neck. He sought medical attention for both shoul ders from his personal physicians, Rick D. Kellenberger, D.O., and Patricia A. Banwart, D.O. Medical records for the aforemen tioned physicians note that claimant sought treatment on July 22, 1986 for his right shoulder and for both shoulders on July 28, 1986. Nurse's notes of the plant nurse reveal claimant reported right shoulder problems on July 28, 1986, and July 29, 1986. Notes for August 7, 1986, August 13, 1986, August 14, 1986 and August 22, 1986, state that claimant complained of right shoulder pain to the plant nurse. On September 9, 1986, claimant voiced complaints to the plant nurse relative to both shoulders. Conservative therapy was prescribed for claimant. Eventually, claimant was sent to William Follows, M.D. Dr. Follows diagnosed claimant as having a rotator cuff tear of the right shoulder. Surgery was recommended to claimant by Dr. Follows. Claimant was also sent to see Scott Neff, D.O., for a second opinion. Dr. Neff concurred with the opinion of Dr. Follows. Surgery was recommended. On June 1, 1987, a rotator cuff repair was performed by Dr. Follows. After the surgery, claimant did not progress as quickly as his surgeon had hoped. During physical therapy, claimant experienced excruciating pain. Dr. Follows conducted a second surgical procedure. He found that the shoulder area which had previously been repaired, had now torn away from the staple. Dr. Follows repaired the right shoulder a second time. Subsequent to the second surgery, claimant continued to experience pain in his right shoulder. As a consequence, he was sent by defendant-insurance carrier to see J. Michael Donohue, M.D. Dr. Donohue provided a functional evaluation and prescribed physical therapy and rehabilitation. Dr. Donohue prescribed the following: ADDENDUM: Mr. Hohenfield's functional tests of his upper extremities was reviewed. The patient has sig nificant deficits with respect to both strength and endurance with internal and external rotation. In addition, he has a moderate deficits with respect to shoulder flexion and extension at the lower speeds. The primary deficits with respect to abduction and adduction are with respect to endurance. Based on the patient's functional findings, I would conclude that the patient has significant decondition ing of all muscle groups of the right shoulder with the greatest deficits being in internal and external rota Page 3 tion as is frequently seen following rotator cuff surgery. Based on the patient's deficits, I beleive [sic] that he can return to a working situation, but this situation will need to be modified so that the patient is minimizing the use of his right upper extremity with respect to flexion and extension. I believe he should limit his forward flexion to 30o. I would place a 20 pound maximal lifting restriction on the right upper extremity based on the results of the isokinetic tests. If you should have any further questions, please feel free to contact my office. (Exhibit 9, page 2) Claimant participated in approximately 30 rehabilitation sessions with Dr. Donohue. Following the prescribed rehabilita tion, Dr. Donohue imposed permanent restrictions. Eventually, claimant was precluded from lifting more than 25 pounds and he was restricted to limiting his work activities to the area between his chest and groin and at an arm's length from his body (Ex. 3, p. 60, lines 16-24). Claimant had been working with a rehabilitation specialist, Diane McGuire. Ms. McGuire was hired by defendant-insurance carrier to assist claimant with his rehabilitation process. Claimant was unable to return to his former position with defendant-employer. As a consequence, claimant was reassigned to the duty of fork truck driver. Claimant worked in this capacity for several weeks. However, Dr. Donohue would not approve the position for claimant. There were no other positions within the plant which claimant or management believed claimant was capable of accomplishing. On January 27, 1989, claimant was notified he was terminated from his employment due to medical reasons. Ms. McGuire continued to communicate with claimant. The working relationship was less than ideal and there were problems between the two. Ms. McGuire desired claimant to seek employ ment. Claimant, on the other hand, desired to complete his bachelor of arts degree. Claimant, then with the assistance of the Iowa Department of Vocational Rehabilitation, returned to college at Buena Vista College. In May of 1991, claimant received his bachelor's degree in human services. At the time of the hearing, claimant had applied for several positions in his field of study. However, he had not obtained a position. Ms. McGuire encouraged claimant to obtain a volunteer position in the area of human services. Claimant did not seek volunteer work but he did obtain two part-time positions. He held the second position which was a security guard position. On the date of the hearing claimant was earning $4.25 per hour as a security guard. During the hearing, claimant testified he had seen John Garfield, Ph.D., for depression. Dr. Garfield evaluated claimant psychologically. Claimant was sent by defendants to Robert Smith, M.D., for a psychiatric evaluation. Claimant had been treated with antidepressants. Page 4 conclusions of law This agency has jurisdiction of the subject matter of this proceeding and its parties. Claimant has the burden of proving by a preponderance of the evidence that he received injuries on July 28, 1986, April 24, 1987, June 22, 1988, August 12, 1988, September 14, 1988, September 28, 1988, November 17, 1988 and January 6, 1989, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may rea sonably be, and while he is doing his work or something inciden tal to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injuries of July 28, 1986, April 24, 1987, June 22, 1988, August 12, 1988, September 14, 1988, September 28, 1988, November 17, 1988 and January 6, 1989, are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardward, 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 Page 5 be weighed together with the other disclosed facts and circum stances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evi dence introduced bearing on the causal connection between the injury and the disability. Burt, 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 (1974). Furthermore, if the available expert testimony is insuffi cient alone to support a finding of causal connection, such tes timony 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 signifi cant factor, not be the only factor causing the claimed disabil ity. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). 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). It is uniformly held throughout this country that where a physical trauma has induced a mental injury which increases dis ability that the full disability is compensable. There is no additional legal test or standard to demonstrate as a condition precedent to compensability which would be the case if the dis ability had been solely induced by mental injury. See Larson, Workmen's Compensation Law, Vol. 1B, section 42.22(a), pp. 7-601. See also Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). Furthermore, the extent of a preexisting psychological weakness or neurotic tendency does not lessen the compensability of an injury which precipitates a disabling neurosis. Larson section 42.22(b), p. 7-621; Leffler v. Wilson and Company, 320 N.W.2d 634 (Iowa App. 1982) (Also See: Greer v. Sartori Memorial Hospital, File No. 840641, Arbitration Decision filed May 22, 1989, Affirmed November 28, 1990) If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of per centages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earn ing capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inabil ity to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Page 6 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 disability. This is so as impairment and disability are not synonymous. 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 proportion ally 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 qualifi cations 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 arriv ing 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, moti vation - 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 disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). In the case at hand, claimant has established by a prepon derance of the evidence that he has sustained injuries to both his right and left shoulders as a result of cumulative injuries. The respective injury date for both the right and left shoulder is July 28, 1986. That is the date claimant sought med ical treatment for both shoulders. Nurse's notes for that date reflect the same request by claimant for treatment. In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the Iowa Supreme Court upheld this agency's adoption of the cumulative injury rule for application in factually appropri ate cases. The McKeever Court cited 1B Larson Workmen's Page 7 Compensation Law, section 39.50 at 11-350.28 for two general rules as to when the injury occurs for time limitation purposes in cumulative trauma cases. Under Larson, the injury may occur when pain prevents the employee from continuing to work or when pain occasions the need for medical treatment. The Court adopted the view that the injury occurs when pain prevents the employee from continuing work reasoning that "clearly the employee is dis abled and injured when, because of pain or physical disability he can no longer work." McKeever at 374. The McKeever Court then adopted what is commonly called the "last injurious exposure rule" for successive trauma cases, thereby placing full liability upon the carrier covering the risk at the time of the most recent trauma bearing a causal relationship to any disability. McKeever at 376. Other injuries which were alleged by claimant were the fol lowing dates: April 24, 1987; June 22, 1988; August 12, 1988; September 14, 1988; September 28, 1988; November 17, 1988; and, January 6, 1989. These were only temporary and minor aggrava tions of the same injury to the shoulders as occurred on July 28, 1986. For purposes of the hearing, all permanent disability ben efits relate back to the July 28, 1986 injury date. No perma nency is found in file numbers: 894171; 931341; 931342; 931343; Page 8 931344; 931345; and, 931346. With respect to any permanency, claimant alleges he has sus tained an industrial disability. The undersigned agrees. Claimant is industrially disabled. He has sustained injuries to the body as a whole. Both of his shoulders have been affected. Firstly, claimant is severely restricted by Dr. Donohue. Claimant is restricted from lifting greater than 25 pounds on a frequent basis. Claimant is also restricted to working within an imaginary square from waist height to shoulder height. The restrictions have a profound effect upon claimant's abilities to find suitable work. His restrictions severely limit his work activities. There is no position within defendant-employer's manufacturing process which claimant is capable of performing. Even a lighter duty position such as fork truck driver is outside Dr. Donohue's restrictions. Claimant has been terminated because there is no job available within his restrictions. Claimant has received functional impairment ratings for his shoulder injuries. Dr. Follows, the orthopedic surgeon, has rated claimant as having a 15 percent permanent partial impair ment to the right upper extremity. Jerome G. Bashara, an orthopedist, evaluated claimant pur suant to an independent medical exam. Dr. Bashara examined claimant on February 3, 1989. The physician rated claimant as having a permanent partial impairment to the right upper extrem ity of 16 percent and a six percent impairment to the left upper extremity. Finally, Dr. Donohue, the treating rehabilitation physician, rated claimant. The board certified orthopedic surgeon rated claimant as having a 14 percent impairment rating to the right shoulder. Dr. Donohue assessed a 0 percent impairment rating to the left shoulder. Surgery was not recommended for the left shoulder. With respect to claimant's mental condition, he too was evaluated. Dr. Garfield, a psychologist, diagnosed claimant as having an adjustment disorder with depressed mood stemming from his physical injuries at work, his pain, loss of wages and loss of earning power. Dr. Garfield assessed a 20 percent permanent partial impairment due to claimant's mental condition. However, it is noted that Dr. Garfield did not use the most current edi tion of the DSMIII when he evaluated claimant. Robert E. Smith, M.D., a psychiatrist, evaluated claimant for a possible mental condition. Dr. Smith opined there was no functional impairment. However, Dr. Smith did opine: The patient's psychological and psychiatric symptoms are only mild to moderate in severity and tend to be primarily cognitive in nature. When looking at the patient's work function from a psychiatric standpoint, we must appraise his current functional status in the college classroom. Per his report, he is receiving A's and B's. He is progressing toward a degree, and it is Page 9 my understanding that he has subsequently graduated. This strongly suggests to me that his cognitive skills, attention, concentration, initiative, and motivation are not markedly impaired and he is performing at a satisfactory level. I recognize that he continues to have some psychological symptomatology, but this does not appear to be reflected in functional disability. In summary, my diagnosis is Dysthymia; I feel that the patient is under-treated from both a pharmacotherapy and psychotherapy standpoint. Thus, his prognosis could be markedly improved in symptomatology control if these areas were corrected; his level of dysfunction, from a purely psychological standpoint, appears to be nil. (Ex. 16, p. 4) Raymond Moore, Ph.D., a clinical psychologist and neuropsy chologist, also examined claimant. No permanent impairment was noted. Dr. Moore wrote in his report: On the phone you asked specifically about Dr. Garfield's diagnosis of Adjustment Disorder with Depressed Mood, and about Mr. Hohenfield's current status and prognosis. As to this diagnosis, I believe it was an accurate one at the time it was made. I'm sure Mr. Hohenfield had increased stress at the time he was terminated. This is a complicated point, so I am including a copy of this category from DSM-III-R, because you will see that Mr. Hohenfield no longer meets the criteria for this disorder. This category is meant for temporary disorders (3 to 6 months), and the fact that Mr. Hohenfield has been able to complete college recently, and he engages in a normal range of daily activities indicates to me that his temporary disorder is now in remission. Indeed, this is con firmed by the Upper Des Moines Counseling Center report, where he had many sessions and was discharged as recovered. I believe he is an intelligent, educated person, and he has a good future and a good prognosis. I see nothing at this point to indicate he is disabled or impaired in any way. Of course, a law suit [sic] and lingering resentments toward his former employer are bound to be influences on his mind, and I believe he will feel much relief when he has resolved this, and he can go on with his life. (Ex. 18, p. 5) After reviewing all of the expert testimony surrounding claimant's mental condition, it is the determination of the undersigned that claimant only had a temporary impairment. He has no permanency. Claimant has not been obtaining ongoing coun seling for any alleged mental condition. He has been receiving medication but only low doses. His depressed state does not appear permanent. Claimant has successfully completed college. Page 10 Dr. Smith, a medical doctor, does not conclude there is any permanency. Because of his medical training, his opinion is accorded more weight than is the opinion of a psychologist who is not medically trained. Claimant does not have a permanent impairment because of his mental condition. Claimant's earning capacity has been reduced because of his work injuries. His restrictions reduce the types of jobs he can perform. At the time of his termination, claimant was earning nearly $11.00 per hour. At the time of the hearing, claimant was only earning $4.25 per hour as a security guard. He had held other positions but they had paid around $5.00 per hour. His actual earnings have decreased significantly. Claimant is highly motivated. He had returned to college and he earned his degree in human services. He worked while he was in college. Claimant is to be commended for this monumental task. Claimant is determined. He has been seeking employment in the field of human services. He has applied for a number of positions. While the rehabilitation specialist has attempted to characterize claimant as unmotivated, this deputy determines claimant is most anxious to obtain employment. The rehabilitation specialist has been of very little assis tance to claimant. She is unable to obtain a full time position for claimant in the area of human services. She has testified that while claimant did not have a full time position in human services, he could expect employment in the range of $8.00 to $11.00 per hour. It appears to the undersigned, the rehabilita tion specialist has provided little to claimant which he has not already pursued on his own. Claimant has the eduction to hold a position in the area of human services. However, at the time of the hearing, there were no job prospects or job offers. Any argument about claimant's future employment in the human services is speculative. (See: Trujillo v. City of Webster City, Arbitration Decision filed on August 23, 1990, File No. 797520). Therefore, after reviewing the testimony, after observing claimant and after reviewing the opinions of experts, it is the determination of the undersigned that claimant has a permanent partial disability in the amount of 40 percent. order THEREFORE, IT IS ORDERED: Defendants are to pay permanent partial disability benefits for two hundred (200) weeks at the stipulated rate of two hundred sixty and 58/l00 dollars ($260.58) per week commencing from December 16, 1987. Interest shall be paid according to section 85.30. Page 11 Defendants shall receive credit for all benefits previously paid and not credited. Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Philip F. Miller Attorney at Law Saddlery Bldg STE 200 309 Court Ave Des Moines IA 50309 Mr. Paul C. Thune Mr. Stephen W. Spencer Attorneys at Law 218 6th Ave STE 300 P O Box 9130 Des Moines IA 50306 1803 July 24, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : MICHAEL J. HOHENFIELD, : : File Nos. 853502, 894171, Claimant, : 931341, 931342, 931343, : 931344, 931345 & 931346 vs. : : A R B I T R A T I O N SNAP-ON TOOLS CORP., : : D E C I S I O N Employer, : : and : : ROYAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant was awarded a 40 percent permanent partial disability due to a bilateral shoulder injury. Claimant was severely restricted to lifting 25 pounds or less and to working within an imaginary square between the waist and the shoulders. Claimant was terminated from his position. He returned to college and completed his bachelor's degree in human services. At the time of the hearing, claimant had a position as a part-time security guard for $4.25 per hour. Claimant had no full time job prospects in his field. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TERRY ANDERSEN, : : Claimant, : : File No. 931352 vs. : : P E N A L T Y SHELTER SUPERSTORE CORP., : : B E N E F I T S Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a bifurcated proceeding for penalty benefits brought by the claimant, Terry L. Andersen, against his employer, Shelter Superstore Corporation, and its insurance carrier, Liberty Mutual Insurance Company, to recover benefits under section 86.13 unnumbered paragraph 4 for reasonable delay in commencement of benefits related to an injury sustained on September 28, 1989 . This proceeding came on for hearing before the undersigned deputy industrial commissioner at Des Moines, Iowa on August 5, 1992. The record consists of the testimony of claimant and of Robert K. Truhlsen as well as of joint exhibits 25 through 35. Additionally, pursuant to the request of the parties, administrative notice is taken of all exhibits, that is exhibit 1 through 24, and of the arbitration decision filed in this proceeding on September 4, 1991. ISSUE The sole issue to be determined is whether defendants delayed in commencement of benefits to claimant without reasonable or probable cause or excuse such that claimant is entitled to an award of additional benefits pursuant to section 86.13 unnumbered paragraph 4. The parties reached no stipulations relative to this proceeding. FINDINGS OF FACT The deputy having heard the testimony and considered the evidence, finds: Claimant was injured in a motor vehicle accident arising out of and in the course of his employment on Page 2 Thursday, September 28, 1989. Claimant's vehicle was hit by a second vehicle traveling approximately 50 miles per hour. Claimant's vehicle was then rammed into a third vehicle stopped ahead of claimant's vehicle. Claimant used his mobile phone to call Sam Carmichael, his supervisor, and Bradley D. Mabuce, Vice President at Roberts & Dybdahl, Inc., who was the overall corporate insurance person. Both calls were made from the scene of the accident. Claimant was transported to Mercy Hospital in Des Moines with symptoms of shoulder and neck pain as well as leg pain. Claimant was released from hospital care that evening and was instructed to rest at home on Friday. Claimant returned to work late Monday, October 2, 1989. Claimant spoke with Bradley Mabuce on that day and gave him additional information concerning the motor vehicle accident. Claimant also had a telephone conversation with Robert K. Truhlsen, claims representative with Liberty Mutual Insurance Company. Liberty Mutual carried both the workers' compensation and auto insurance for the overall Robert & Dybdahl operation, which operation included Shelter Superstore Corporation as a subsidiary. Truhlsen took a recorded statement from claimant on that day. Truhlsen initially recorded the injury as involving temporary injury only and no loss time as claimant had returned to work on October 2, 1989. On October 6, 1989, Shelter Superstores terminated claimant's employment for reasons unrelated to claimant's September 28, 1989 work injury. On October 12, 1989, claimant's attorney, by letter, advised Bradley Mabuce that claimant was temporarily disabled on account of the September 28, 1989 injury and was seeking commencement of temporary total disability benefits. Mr. Mabuce faxed a copy of that letter to Mr. Truhlsen. This was Mr. Truhlsen's first notification that claimant was off work. Truhlsen testified that he did not commence workers' compensation payments immediately subsequent to the October 12, 1989 letter in that claimant had stated in his October 2, 1989 telephone interview that while his back was stiff and sore he would return to work and further in that Bradley Mabuce had agreed claimant had returned to work and that claimant had been terminated for nonwork-related reasons. Additionally, Truhlsen indicated claimant had no medical authorization to be off work and no medical documentation that his September 28, 1989 injury disabled him from work. Truhlsen also indicated that it seems suspicious that shortly after claimant's work termination claimant had secured legal counsel and was seeking workers' compensation benefits. Truhlsen felt further investigation was needed on that account as well. In a letter of October 24, 1989, claimant's attorney contacted Mr. Truhlsen directly. In that letter counsel advised claims representative Truhlsen that claimant was injured and unable to work and would be unable to work for a substantial period of time. The attorney further advised that claimant had suffered a compression fracture of the T4 vertebra; was unable to return to work or seek other Page 3 employment; and was under care at the McFarland Clinic. Enclosures with the October 24, 1989 letter included office notes of Peter Q. Wolfe, M.D., of October 12, 1989. Those notes included a history of claimant's motor vehicle accident; an objective finding of very prominent spinal tenderness over the T2, 3 and 4 areas; an x-ray finding of compression fracture at T4, probably new, as not seen an old chest x-ray from 1984; and an assessment of compression fracture at the T4 thoracic spine with muscular strain and sprain including cervical strain and sprain in the right side with muscular weakness. Workers' compensation benefits were not commenced subsequent to the October 24, 1989 letter. Mr. Truhlsen contacted Dr. Wolfe by letter of December 6, 1989. Dr. Wolfe did not respond. Truhlsen made no further attempts to contact Dr. Wolfe. Claimant's counsel contacted Mr. Truhlsen on December 6, 1989 by telephone. Counsel again contacted Mr. Truhlsen on December 13, 1989 by letter. Counsel again requested commencement of benefits as of that letter. Counsel enclosed with the December 13, 1989 letter a "To whom it may concern" note of John A. Grant, M.D., of McFarland Clinic stating: This is to verify that Terry Andersen, birth date 10-6-47,...was referred to me by Dr. Peter Wolfe of the McFarland Clinic for evaluation of injuries sustained in an accident on 9-28-89. His first visit to my office was 10-25-89, and he has been seen on 2 occasions since. His injuries prevent him from working at the present and for an unspecified time in the future. (Exhibit 30, page 7) Truhlsen testified he did not start to commence workers' compensation benefits subsequent to the December 13, 1989 letter and receipt with it of the December 8, 1989 Grant letter in that the Grant statement contained no record as to what claimant could or could not do and, hence, questions remained as to claimant's ability to work. Truhlsen did attempt to contact Dr. Grant's office in December 1989 via telephone. Truhlsen was sent medical records for a Terry Andersen other than claimant Terry Andersen. Truhlsen could not recall whether he had ever recontacted Dr. Grant for the right medical records. Truhlsen, in his deposition, stated he felt no need to seek medical reports from the physician in that he was receiving medical reports via claimant's counsel. On January 6, 1990, claimant's counsel spoke with Mr. Truhlsen via telephone from claimant's counsel's office. Claimant was present in claimant's counsel's office throughout the telephone conversation. Claimant and claimant's counsel's understanding subsequent to the telephone conference was that workers' compensation benefits for claimant would commence on January 8, 1990. Mr. Page 4 Truhlsen had no independent recollection of a January 6, 1990 telephone conversation. Workers' compensation benefits were not commenced as of January 8, 1990. Claimant's counsel contacted Mr. Truhlsen by letter of January 17, 1990 again seeking commencement of workers' compensation benefits. Copies of claimant's office notes with McFarland Clinic showed entries for December 8, 1989, December 28, 1989 and January 8, 1990 were enclosed as was a copy of a report of a January 2, 1990 MRI examination. The MRI report stated that the intervertebral disc material at C5-6 pressed upon the anterior thecal sac. The impression was of a prominent disc protrusion versus very mild disc herniation. Benefits were not commenced subsequent to the January 17, 1990 letter. Truhlsen testified that the letter and the MRI report raised questions in that claimant's previous diag nosis had been of a T4 compression fracture and findings now related to the cervical spine. Truhlsen indicated that a question was raised as to whether the C5-6 condition was preexisting and related to claimant's previous January 1988 motor vehicle accident. He indicated that questions remain as to whether claimant could work as a route sales representative as claimant had functioned in that capacity subsequent to the date of injury. Truhlsen first authorized payment for claimant on or about March 15, 1990. Truhlsen authorized a lump sum payment from October 12, 1989 through March 16, 1990 with the intent that payments were to continue on a weekly basis from March 17, 1990 onward. Truhlsen indicated that authorization of commencement of payment did not include any acceptance of liability on claimant's claim. Truhlsen stated that authorization was made on the basis of his personal conversation with Liberty Mutual's in-house nurse regarding compression fractures and under the reasoning that Liberty Mutual could recover any payments made in an action against the driver of the motor vehicle that had struck claimant's vehicle. Actual payment of workers' compensation benefits was further delayed after Truhlsen 's authorization of payment in that Truhlsen had no actual authority to commence payments. Truhlsen could only recommend payments to his supervisor who could then recommend payment to the home office in Boston. Subsequent to both of those recommendations, the home office sought additional information as to whether alcohol had been involved in the motor vehicle accident. Only after Truhlsen reported to the home office that alcohol had not been involved, did the home office authorize payment from October 12, 1989 through March 16, 1990. Payments did not continue on a weekly basis after claimant received a check for weekly benefits from October 12, 1989 through March 16, 1990. Truhlsen opined that despite his intent that payments continue on a weekly basis, the home office need for additional information subsequent to the recommendation of payment had resulted in an intra-office "mix-up" such that the pay order did not Page 5 include an order to make weekly benefit payments on and after March 17, 1990. Claimant received the initial check on or about April 13, 1990. On April 20, 1990 claimant's counsel wrote defense counsel advising that claimant's weekly rate had been incorrectly computed as that for a single individual with one dependent whereas claimant was a married individual with four dependents. Counsel further advised that claimant's compensation benefits should have commenced as of October 6, 1989, his termination date, and not as of October 12, 1989. Claimant's counsel requested that Liberty Mutual pay the balance of temporary disability owed claimant from October 6 through April 20, 1990 together with accrued interest. Claimant next received benefit payments on July 19, 1990. On that date claimant received a payment designated as permanent partial benefits for the period from July 10, 1990 to July 23, 1990 and the payment designated temporary total benefits for the period from March 17, 1990 to July 9, 1990 and a payment designated temporary total benefits from the period October 12, 1989 to March 16, 1990 which final payment represented the difference between payment at the rate for a single person entitled to one exemption and the rate for a married person entitled to four exemptions through that payment period. Claimant has not received benefit payments from the period of October 6, 1989 through October 11, 1989. The arbitration decision filed in this matter on September 4, 1991 expressly ordered that claimant's healing period began on October 6, 1989 and ended on June 20, 1990. CONCLUSIONS OF LAW 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. See Stanley v. Wilson Foods Corp., File No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989). Section 86.13 unnumbered paragraph 4 does not indicate when additional compensation becomes due and payable. It is expressly determined that it should run from the date of the decision which awards it. Any other treatment would result in a complex formula with pyramiding of interest and penalties which the legislature has not directed. See Klein v. Furnas Elec. Co., 384 N.W.2d 370 (Iowa 1986). As is noted above, the standard for evaluating the reasonableness in defendants' delay in commencement is whether claimant's claim was fairly debatable. The circumstances surrounding claimant's motor vehicle accident, his return to work, and his subsequent termination from work can fairly be said to have raised initial questions as to Page 6 whether claimant has sustained any lost time injury. The question then becomes whether liability for benefits remained fairly debatable over the extended time during which benefit commencement was delayed. That question cannot be answered favorably to defendants. As of on or about December 15, 1989, the insurer's claim representative had in his possession numerous medical documents giving a history of claimant's injury consistent with the history taken at the time of the transcribed statement of October 2, 1989; stating a diagnosis of a T4 compression fracture; indicating that that condition was likely recent in origin; describing symptoms that prevented claimant from working; and containing claimant's treating orthopedic surgeon's statement that claimant was off work and was likely to remain off work indefinitely on account of the work-related condition. Claimant's counsel forwarded the information to the claims representative. The claims representative took minimal action to either prove or disprove the information claimant, through his counsel, presented on a timely basis. In effect, the claims representative relied on the information obtained from counsel which information clearly demonstrated an injury which more probably than not was work-related and compensable. Having that information on its face, the defendant insurance carrier's claims representative did virtually nothing, even after numerous contacts by claimant's legal representative. Indeed, the claims representative did not even speak with the insurer's in-house nurse to gather additional information relative to claimant's diagnosed thoracic condition until at least March 1990. The representative testified he relied on that information in making his decision to commence benefits. In that the nurse was an in-house employee of the insurer, it appears the representative could have spoken to the nurse at any time subsequent to receiving initial information about claimant's medical condition. That he waited until some five months subsequent to the reported injury to do so cannot be considered reasonable claims handling procedure. Under the facts presented, that conversation and authorization of commencement of benefits could easily have been made within 90 days of claimant's September 28, 1989 injury. It is expressly found that claimant's claim ceased to be fairly debatable as of December 28, 1989. Defendants are liable for a penalty of 50 percent of temporary total benefits due claimant from December 28, 1989 to March 17, 1990. A further question remains as to whether defendants acted unreasonably in not making additional payments to claimant for the period from March 17, 1990 through July 18, 1990. Mr. Truhlsen testified that likely those payments were not made because of a "mix up" within the insurer's offices. Truhlsen related the "mix up" to the insurer's seeking of additional information relative to the initial request for authorization of payments from October 12, 1989 to March 16, 1990. The insurer is the only entity having Page 7 control over its procedures for determining that payments are authorized and commenced timely. The insurer offered no evidence as to why this mix up was a reasonable procedural oversight. If the insurer has a desire to further determine the appropriateness of commencement of payment after its claims representative has initially requested commencement, then the insurer has a corresponding duty to determine that all requested and authorized payments are timely made. Where it fails to meet that duty, the insurer should bear the burden created by the failure. Claimant is also entitled to a penalty award of 50 percent in the amount of benefits delayed from March 17, 1990 through July 18, 1990. Claimant apparently also seeks penalty for benefits claimed from October 6, 1989 through October 11, 1989. The arbitration decision filed in this matter on September 4, 1991 expressly ordered payment of benefits from October 6, 1989 onward. Additionally, on April 20, 1990, claimant's counsel requested payment of such benefits. It cannot be considered fairly debatable to refuse to pay benefits ordered in a nonappealed arbitration decision. Claimant is entitled to an award of 50 percent of the amount of benefits delayed from October 6, 1989 through October 11, 1989. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant an award of fifty percent (50%) of the amount of benefits due claimant from December 28, 1989 through March 16, 1990. Defendants pay claimant an award of fifty percent (50%) of the benefits due claimant from March 17, 1990 through July 18, 1990. Defendants pay claimant an award of fifty percent (50%) of the benefits due claimant from October 6, 1989 through October 11, 1989. Defendants pay accrued amounts in a lump sum. Defendants pay costs pursuant to rule 343 IAC 4.33. Defendants file claims activity reports as ordered by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 8 Mr. Lad Grove Attorney at Law 218 SE 16th Street Ames, Iowa 50010 Mr. Richard G. Book Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TERRY ANDERSEN, : : Claimant, : : vs. : : File No. 931352 SHELTER SUPERSTORES : 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 : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ On February 6, 1990 Terry Anderson (claimant) filed a petition for arbitration as a result of an injury to claimant's cervical spine and dorsal spine occurring on September 28, 1989. Shelter Superstores (Shelter) was identified as employer and Liberty Mutual Insurance Company (Liberty) was identified as the workers compensation insurer for Shelter (collectively defendants). On April 16, 1991 these matters came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by his counsel Lad Grove of Ames, Iowa and Shelter and Liberty by their counsel Richard Book of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Berdyne Anderson, Sam Carmichael and Brad Mabuce. 2. Joint exhibits 1-23 3. Claimant's exhibit 24. At the close of all evidence, the case was deemed fully submitted. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The claimant sustained an injury on September 28, 1989, which arose out of and in the course of employment. c. The alleged injury is a cause of temporary disability. d. The time off work is stipulated to be from October 6, 1989 to July 9, 1990. e. The type of permanent disability, if the injury is found Page 2 to be a cause of permanent disability, is industrial disability to the body as a whole. f. The rate of compensation, in the event of an award, is $274.56 per week. At the time of the injury claimant was married and has two children. Claimant is entitled to four exemptions. g. All requested benefits have been or will be paid by the defendants. h. Defendants have paid 78.715 weeks of compensation at the rate of $274. 56 per week prior to the hearing. Additionally, defendants have made payments of weekly compensation benefits since the date of the hearing to the date of this decision. Defendants are entitled to a credit for all of these amounts paid. i. Claimant's have bifurcated the issue regarding entitlement to penalty benefits pursuant to Iowa Code Section 86.13 (1991). j. The parties have agreed that claimant is entitled to reimbursement in the amount of $15,155.19 for medical services that have been provided to claimant over the course of his treatment for his work-related injury. Additionally, the parties have agreed that claimant advanced $27.50 and $35.29 for medical services rendered in connection with his injuries. Defendants have agreed to pay those sums. Claimant has incurred additional mileage costs in January of 1991 which total 160 miles. Claimant is entitled to a travel reimbursement of $33.60 for mileage. ISSUES The issues for resolution are as follows: 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. 2. Which costs should be taxed. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 44 years old. At the time of claimant's injury on September 28, 1989, claimant was 42 years old. Claimant is a high school graduate. He graduated in 1965. In 1990, claimant began attending courses at the Des Moines Area Community College (DMACC). It is his intent to complete an associate degree program at DMACC and then continue on to Iowa State in an accounting program. 2. After claimant graduated from high school, he began working in the lumber industry. He has worked for Sutherland Lumber, Dell Rapids Lumberyard, Schoeneman Brothers Company, Midwest Lumber Company, and Shelter. Claimant began working for Shelter in April 1987. Claimant's work experience included filling customers' orders, unloading trucks, bookkeeping, assistant manager, Page 3 manager, and salesperson. Claimant was terminated from his position as a manager with Schoeneman. He was also terminated from his manager position with Dell Rapids Lumberyard. While claimant worked at Midwest, he was a working manager and decided that he was more geared toward sales and did not want to remain as a working manager. He left that employment to take a sales position with Shelter. 3. Shelter is a wholly owned subsidiary of Roberts & Dybdahl, a company involved in selling lumber and lumber products. Roberts & Dybdahl is the parent corporation to several wholly owned subsidiaries. Roberts & Dybdahl shares some of its officers with some of the wholly owned subsidiaries, including Shelter. For example, Brad Mabuce, is a vice president for Roberts & Dybdahl and also for Shelter. 4. Claimant's job duties with Shelter included selling the product line which included replacement windows, and molding supplies to retail establishments. Claimant made customer calls by traveling from each stop by car. Claimant's calls generally required him to be in the car for an hour to an hour and a quarter at a time. Shelter had no rules regarding when claimant could take a break when he was traveling. Claimant was free to take breaks as necessary. Claimant was required from time to time to set up displays for Shelter and also to make deliveries to his customers. The samples weighed from between 40 to 60 pounds. Once these samples displays were installed, claimant was not required to remove them or move them again. 5. On September 28, 1989, claimant was on his way to make a sales call when he was involved in an automobile accident on highway 69 near Ankeny. Claimant was struck from behind by an S 10 Chevrolet pick up truck. Claimant's car was pushed into the car ahead of him. After the accident, claimant got out of his car and felt pain between his shoulders and in his neck area and he had a bruise on his right leg. Claimant was transported to the emergency room at Mercy Hospital in Des Moines and was x-rayed. X-rays were taken of his cervical spine, his dorsal spine, and the right tibia and fibula. The x-rays reviewed by the radiologists in the emergency department at Mercy indicated that there was no evidence of any fracture in his cervical or dorsal spine or in his right tibia.(1) Dennis Reavis, D.O., directed claimant to remain home from work for two days, releasing him to return to work on Monday, October 2, 1989. 6. On October 6, 1989, claimant was terminated from his position with Shelter. Shelter had intended to terminate claimant on September 29, 1989, but deferred the (1). The Mercy radiologists, P. Ruben Koehler, M.D., indicated that there was a slight kyphosis of the dorsal spine due to an anterior fusion of osteophytes between T9 and T10. Dr. Koehler could find no evidence of an acute fracture and no evidence of a dislocation. Upon his review of the cervical spine, he indicated that he noted a small calcification in the anterior ligaments between C6 and C7 due to degenerative disease. The study appeared essentially normal. Page 4 termination until claimant had returned to work after his automobile accident. Claimant worked for part of the week beginning on October 2, 1989. Shelter terminated claimant due to low sales performance and an economic need to consolidate sales territories. Since claimant's termination, Shelter has added a sales facet to a clerk position in Marengo. 7. On October 9, 1989, claimant consulted with Rick Elbert, D.C., with complaints of headache, neck pain, neck stiffness, mid back pain, low back pain, irritability, tension, heaviness of the head, cold hands, cold sweats, chest pain and nervousness. Dr. Elbert attributed all of these symptoms to claimant's motor vehicle accident on September 28, 1989. Dr. Elbert performed some treatment at the time of the first visit. However, on October 10, 1989, claimant withdrew from treatment from upon the advice of counsel. 8. Claimant was next examined at the McFarland Clinic in Ames. Claimant was seen by Peter Wolfe, M.D., and John A. Grant, M.D. After Dr. Wolfe's initial examination, Dr. Wolfe found that claimant had prominent spinal tenderness over the T2, 3, and 4 areas of the dorsal spine. Dr. Wolfe repeated x-rays and found a compression fracture at T4 which he believed was caused by car accident suffered by claimant September 28, 1989. Dr. Wolfe based this conclusion on a comparison between a chest x-ray from 1984 to the x-ray that he did in October of 1989. X-rays of the cervical spine were negative. Dr. Wolfe adopted a plan of conservative treatment which included pain medication, muscle relaxers, and physical therapy. 9. After this consultation, claimant's care was taken over by Dr. Grant of the McFarland Clinic. Dr. Grant proposed a plan for physical therapy that began on October 26, 1989 and extended through March 19, 1990. Physical therapy was terminated at that point because claimant was scheduled for surgery for a herniated disc in his cervical spine. 10. On February 6, 1990, Dr. Grant referred claimant to David J. Boarini, M.D., for further evaluation and potentially surgery. When claimant arrived, claimant was examined by Robert A. Hayne, M.D. Dr. Hayne concluded that there was some compression of one or two of the upper dorsal spine segments. Additionally, an MRI study of the neck showed evidence of a protrusion of the fifth cervical intervertebral disc. Dr. Hayne scheduled claimant for a myelographic study of the upper dorsal region and the cervical region on February 26, 1990. The myelographic study suggested a deformity on the left opposite the C5-6 interspace. In view of claimant's continuing pain and disablement, he had a diskectomy at the C5-6 interspace and bone grafting on that site. 11. On May 10, 1990, Dr. Hayne opined that the involvement of the cervical intervertebral disc which necessitated surgery and the mild compression of the third Page 5 or fourth dorsal segment were related to the accident which occurred on September 28, 1989. Dr. Hayne also felt that claimant would be able to return to his regular sales work. He indicated that there would be a two and one-half month interval from the time of the operative procedure until the time that claimant had reached maximum healing at the site of the surgery as well healing from the compression fracture in the upper dorsal spine. Dr. Hayne also indicated that claimant reached maximum medical improvement between June 15 and 20, 1990. (Ex. 1, p. 25). On July 9, 1990, Dr. Hayne indicated that the claimant was ready to return to work. 12. Dr. Hayne believed that claimant had suffered a permanent functional impairment to the cervical area that equaled eight percent of the body as a whole. Additionally, he believed that claimant suffered a permanent functional impairment of between three and four percent to the dorsal area. Dr. Hayne relied on the AMA Guide to Physical Impairment to reach these values. However, Dr. Hayne did not consult the combined table chart to reach an impairment for both of these injuries. Dr. Hayne did agree that the combined value chart would be the appropriate reference table to use in assessing the claimant's permanent functional impairment to the body as a whole as it relates to these two injuries. (Exhibit 1, page 25-26). A review of the combined value chart in The Guides to the Evaluation of Permanent Impairment, Third Edition (Revised), at page 254 reveals that the combined impairment value for the two injuries suffered by claimant would total 11 percent if the three percent value is used for the injury to the dorsal spine and would yield 12 percent if the four percent value is assigned to dorsal spine. 13. Claimant is not restricted from performing the job of a traveling salesman in an automobile. (Ex. 1, p. 24). Dr. Hayne indicated that he would have some reservation in recommending that claimant go back to a sales job because driving in a automobile for many hours each day would place undue stress and strain on the upper dorsal and cervical spine regions. Dr. Hayne felt that this activity might aggravate claimant's dorsal and cervical spine regions to the point where that type of employment would not be feasible. However, Dr. Hayne indicated that there would be no way of knowing what claimant could tolerate unless claimant returned to a sales type position and tried the work. Additionally, Dr. Hayne recommended that claimant not do repetitious extension of his neck in his work and that he do no lifting over 40 or 50 pounds. (Ex. 1, p. 21-22). Additionally, Dr. Hayne noted that as a result of the injuries to claimant's neck, and the fusion surgery that Dr. Hayne performed, claimant has a limited range of motion in his neck. 14. On February 1, 1991, claimant again had an MRI of the lower thoracic and lumbar spine from T4 through L5. The radiologist, Robert McCleeary, M.D., could not identify any intra or extradural masses. He noted that the signal Page 6 intensity and caliber of the thoracolumbar cord were within normal limits. There appeared to be some mild diffuse bulging at the T8-T9 disc but it did not significantly compress the spinal cord. Additionally, Dr. McCleeary noted mild degenerative changes at T8-9 and T9-10. He also noted a hemangioma on the right side of the 6th thoracic vertebral body. Significantly, no compression fracture at T4 was identified in that study. 15. Claimant's income tax records from 1985 through 1989 indicate that claimant's wage and salary income was fairly static. Claimant's highest income was earned in 1985 when his gross wages totaled $26,121. Thereafter, claimant earned approximately $17,000 in 1986, $18,000 in 1987, $22,000 in 1988, and almost $18,000 in 1989. 16. Claimant began taking courses at the Des Moines Area Community College in January of 1990, prior to a diagnosis of a herniated disc in the cervical spine. Claimant is a full-time student, and has not been employed or looked for work since the date of his termination from Shelter. Claimant indicated that he had always wanted to complete his formal education and believed that it would be helpful in obtaining another job. Claimant was convinced that at the time of his injury that he had plateaued in his employment prospects and would go no further in the lumber industry. Formal education was one of the issues involved in claimant's termination from two management jobs in the past. Claimant is able to tolerate driving between three area college campuses and is also able to tolerate study time and classroom time with his neck and back injuries. 17. Claimant also consulted with Clark Borland, field counselor with Iowa State Department of Vocational Rehabilitation. Mr. Borland indicated that claimant was able to do sedentary to medium type work with the lifting restrictions that he had been given by Dr. Hayne including over-the-road selling. Mr. Borland concluded that because of claimant's age and his lateness in coming to the accounting field, that his income would be reduced if he could find a position after he graduates from the accounting program at Iowa State. However, Mr. Borland did indicate that claimant would earn a beginning salary of between $20,000 and $22,000 when he returns to the job market. 18. Shelter has had no territorial sales position open since the reorganization on October 6, 1989. Additionally, Shelter has had no management positions open since that time. Sam Carmichael reported that Shelter's sales have increased in the territory that was vacated by claimant once the consolidation of territories had been completed. 19. Presently, claimant has self limited his activities in connection with recreational pursuits and household chores. Additionally, claimant has self limited his lifting and his driving time. 20. Claimant seeks reimbursement of the following costs: Page 7 a. Dr. Robert Hayne Deposition $400.00 b. Dr. Robert Hayne Med Records 15.00 c. Deposition Sam Carmichael 110.80 d. Deposition Bob Truhlsen 168.35 f. Deposition Robert Hayne 96.00 g. Deposition Brad Mabuce 177.15 h. Iowa Methodist Medical Center Med Records bill 31.50 i. Iowa Methodist Medical Center Med Records bill 16.50 j. McFarland Clinic Medical Records 40.00 k. Mercy Hospital Medical Records bill 11.75 Page 8 l. Elbert Chiropractic Medical Records 8.00 m. Elbert Chiropractic for medical report 35.00 n. Iowa Dept. Transp. bill for copy of accident report 4.00 o. Polk County Sheriff bill for copy of accident report 5.00 p. Industrial Commissioner filing fee 65.00 q. Process Associates for service of subpoena 10.00 r. Process Associates for service of subpoena 17.00 Total $1,211.05 21. Claimant received his first compensation payment on April 13, 1990. Claimant's first payment was identified as temporary total disability payment for a period between October 12, 1989 to March 16, 1990. The amount claimant was paid was $5,653.96. When claimant was paid this amount, the rate and the commencement date for the payment of benefits was in error. In the Form 2A filed with the Industrial Commissioner's office on April 16, 1990, Liberty representatives indicated that claimant was entitled to one exemption and that he was not married at the time of the injury. Claimant's weekly rate according to Liberty was $253.70. In fact, at the time of the injury claimant was married and was entitled to four exemptions thereby increasing his weekly rate to the stipulated rate of $274.56. Because benefits had accrued at the time of claimant's first payment on April 13, 1990, claimant was entitled to interest on the accrued amount. Additionally, because claimant's last working day was October 6, 1989 rather than October 12, 1989, claimant's payment should have begun on October 7, 1989 and continued until claimant's healing period had been concluded. Consequently, defendants owe additional amounts of interest on the unpaid balance of healing period benefits owed for the period between October 6, 1989 to October 12, 1989 and for the shortfall between October 12, 1989 and July 23, 1990 when it appears that defendants corrected the rate that they were paying claimant. The parties will be left to calculate the proper amount of interest on these sums. If the parties cannot agree on an amount, they can seek agency intervention for assistance in resolving the dispute. CONCLUSIONS OF LAW 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. a. Permanency and Industrial Disability Claimant contends that he is entitled to an industrial disability benefit of at least 90 percent as a result of the injury to his cervical and dorsal spine. Defendants contend Page 9 that claimant is entitled to no industrial disability benefits because there is insufficient evidence to show that claimant has suffered any loss of earning capacity. The claimant has the burden of proving by a preponderance of the evidence that the injury of September 28, 1989, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. In this instance, Dr. Hayne, the primary treating physician, concluded that claimant had suffered a work-related injury to his cervical spine and his dorsal spine that resulted in permanent functional impairment. Claimant suffered an eight percent impairment to his cervical spine and a three to four percent impairment to his dorsal spine. Using the combined value chart of the AMA Guides to the Evaluation of Permanent Impairment, 3rd Edition (Revised) (1990) at p. 254, claimant had an impairment to the body as a whole of between 11 and 12 percent. This evidence is uncontroverted. No other doctor testified that claimant did not suffer these injuries to his back and neck. The extent of claimant's injuries were unknown for a short period of time after the accident. Claimant's compression fracture was discovered in December and the disk herniation was discovered in January 1990. There were no intervening events that caused these injuries. Since Dr. Hayne has concluded the injuries caused permanent functional impairment, permanent disability has been established. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as loss of earning capacity and not a mere `functional disability' to be computed in the Page 10 terms of percentages of the total physical and mental ability of a normal person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within his restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). There are no weighting guidelines that indicate how each of the factors are to be considered. Nor is there any formulae which can be applied and then added up to determine the degree of industrial disability to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 3, at 658; Christensen, 1 Iowa Industrial Commissioner Decisions No. 3, at 535. Several factors bear on the claimant's industrial disability. Claimant's restrictions are not substantial. He has limited range of motion in his neck and he can lift between 40 and 50 pounds. His compression fracture in his dorsal spine has healed. He is capable of light, sedentary and medium type work including sales jobs that involve traveling. Claimant has transferable skills that are marketable in a competitive labor market. Claimant has a high school education and is obtaining further education presently. Claimant has demonstrated an ability to be retrained. Retraining is a factor used in determining industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant would have benefited from a showing that he at least looked for work after he was released for work. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144, 145 (App. 1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24, 30 (Arb. 1981); Cory v. Northwestern States Portland Cement Co., 33 Biennial Report Iowa Industrial Commissioner 104, 105 (Arb. 1976). It is difficult to determine claimant's potential for the labor market since he has not seriously tried to work since his injury. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981); Fernandez v. Good Samaritan Nursing Center, File No. 856640, Slip op. at 15 (Iowa Ind. Comm'r Arb. February 27,1991) Claimant's age is a factor in this balance as well. At claimant's age, in the mid-forties, claimant is at the peak Page 11 of his earning capacity. This makes claimant's loss more severe than it would be for a younger or older worker. Becke v. Turner-Busch, Inc., 34 Biennial Report of the Industrial Commissioner 34, 36 (App. 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426, 429 (Arb. 1981); McCoy v. Donaldson Company, Inc., File Numbers 782670 & 805200 (Iowa Ind. Comm'r App. April 28, 1989). Additionally, the employer's inability to find any employment for claimant may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980); It is inconsistent for the employer to argue that claimant's disability is only slight when it has absolutely no work which the claimant can do. 2 Larson, Workmen's Compensation, Section 57.61(b) at 10-173, 10-176 (1991). Based upon the foregoing factors, all of the factors used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a 35 percent industrial disability. b. Healing Period Once permanency has been established, the employer must pay healing period benefits to claimant until such time as claimant has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury, whichever occurs first. Iowa Code section 85.34(1)(1991). Healing period benefits may be characterized as that period during which there is a reasonable expectation of improvement of a disabling condition and ends when maximum medical improvement is reached. Armstrong Tire and Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981). In discussing the concept of healing period as contemplated by Iowa Code section 85.34(1) (1991) the Kubli Court observed that recuperation refers to that condition in which healing is complete and the extent of the disability can be determined. Kubli, 312 N.W.2d at 65. The healing period generally terminates at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Kubli, 312 N.W.2d at 65. Dr. Hayne concluded that claimant had reached maximum medical improvement sometime between June 15 and June 20, 1990. Claimant was released to return to work on July 9, 1990. The medical records from Dr. Hayne do not suggest that claimant's condition improved between June 20, 1990 and July 9, 1990. Consequently, claimant's healing period ended June 20. 1990, when Dr. Hayne indicated that claimant reached maximum medical improvement. Claimant's healing period lasted between October 6, 1989 until June 20, 1990. c. Rate underpayment and Interest owed on accrued benefit payments. Claimant is contending that he is owed additional amounts of interest on late payments of benefits and Page 12 underpayments of benefits paid prior to the hearing on this matter. Defendants argue that they do not owe these amounts. Interest payments are governed by Iowa Code section 85.30. This section provides that if a compensation payment is not made when due on a weekly basis, then interest shall be added to the weekly compensation payment at the rate provided in Iowa Code section 535.3 (1991) for court judgments and decrees. Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174, 180 (Iowa 1979) (Supreme Court held that interest must be calculated on each weekly payment if compensation is not paid when due) Partial 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); Simonson v. Snap-On Tools, File Nos. 798628, 842007, 851960, Slip Op. (Iowa Ind. Comm'r. Arb. January 31, 1991). In this instance, claimant is entitled to interest on three different types of payments made in this case. First, claimant is entitled to interest on the underpayment made by defendants. The rate reflected in the Form 2A submitted on April 12, 1990 was in error. Claimant was entitled to 4 exemptions and the rate of a married person rather than the rate of a single person with only one exemption. Additionally, claimant is entitled to interest on the delayed healing period benefits. Finally, claimant is entitled to interest on delayed permanent partial benefit payments. The parties shall be left to calculate the proper amount of interest due on these various amounts in a manner consistent with Iowa Code section 85.30 (1991) and Farmer's Elevator, 286 N.W.2d at 180. 2. Costs to be taxed. Claimant has identified various costs for taxation in this matter. Defendants contended at the time of hearing that they were disputing the amounts of the costs that they are liable for. Page 13 Rule 343 IAC 4.33 provides that the following shall be taxed as costs: 1. The cost of reporting the hearing. 2. Transcription costs when appropriate 3. Costs of service of the original notice and subpoenas 4. Witness fees and expenses 5. Doctor and practitioner deposition testimony, not to exceed the amounts provided for in Iowa Code 622.69 and 622.72 6. The reasonable costs of obtaining no more than two doctors' or practioners' reports. 7. Filing fees when appropriate. In connection with the report limit included in this rule, hospital records are treated as practioners reports. Diede v. Contemporary Industries Corp., 2 Iowa Industrial Commissioner Decisions 492, 495 (Arb. 1985). Additionally, a doctor's witness fee is limited to $150.00 pursuant to Iowa Code sections 622.29 and 622.72 (1991). Hascall v. Woltman, I Iowa Industrial Commissioner Decisions No. 1, 73, 75 (Arb. 1984); Lytle v. Hormel Corp., I Iowa Industrial Commissioner Decisions No. 4, 968, 973 (App. 1985) (Deposition testimony limited to $150.00). Finally, either a practitioner's report charge or testimony of the practitioner but not both can be taxed as costs. Ballenger v. Lithcote Co, File No. 755986, Slip op. at 9-10 (Iowa Ind. Comm'r App. December 30, 1988); Jones v. R.M. Boggs Co., Inc., File No. 655193, Slip Op. at 4, (Iowa Ind. Comm'r App. June 29, 1988). In connection with other deposition testimony, costs related to theses depositions can be assessed only if the deposition is introduced into evidence at trial. Iowa Rule Of Civil Procedure 157(a); Rule 343 IAC 4.35; Woody v. Machin, 380 N.W.2d 727, 730 (Iowa 1986). The costs of purely investigative depositions are not taxable. Woody, 380 N.W.2d at 730; Koppinger v. Cullen-Schiltz & Associates, 513 F.2d 901, 911 (8th Cir. 1975); 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Section 2676 at 345 (2d Ed. 1983). In this instance the following vendors will be paid: VENDOR AMOUNT Dr. Hayne Deposition $150.00 Reporter Fees Carmichael Depo. $110.80 Hayne Depo. $ 96.00 Mabuce Depo. $177.15 Iowa Methodist Records $48.00 Elbert Medical Report $35.00 Filing Fee $65.00 Service Costs $27.00 TOTAL $708.95 Page 14 ORDER THEREFORE, it is ordered: 1. Shelter and Liberty Mutual shall pay to claimant healing period benefits for the period of time beginning on October 6, 1989 and ending on June 20, 1990 at the rate of two hundred seventy-four and 56/100 dollars ($274.56). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. Shelter and Liberty Mutual shall pay to claimant permanent partial disability benefits in the amount of thirty-five percent (35%) with payment commencing on June 21, 1990 at the rate of two hundred seventy-four and 56/100 dollars ($274.56). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 3. Shelter and Liberty Mutual shall have a credit for the following amounts: a. Seventy-eight point seven one five (78.715) weeks of compensation paid prior to the hearing. b. Any compensation paid from the date of the hearing to the date of this decision. 4. Shelter and Liberty Mutual shall pay any interest and accrued benefits resulting from the underpayments made prior to the hearing on this matter in a manner consistent with this decision, Iowa Code section 85.30 and Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174, 180 (Iowa 1979). 4. The costs of this action totaling seven hundred eight and 95/100 dollars ($708.95) shall be assessed to Shelter and Liberty Mutual pursuant to rule 343 IAC 4.33. 5. Shelter and Liberty Mutual shall file claim activity reports as required by rule 343 IAC 3.1. Page 15 Signed and filed this ____ day of September, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Lad Grove Attorney at Law 218 SE 16th Street Ames Iowa 50010 Mr Richard G Book Attorney at Law 500 Liberty Building Des Moines Iowa 50309 4000.2 Filed September 23, 1992 HELENJEAN M. WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TERRY ANDERSEN, : : Claimant, : : File No. 931352 vs. : : P E N A L T Y SHELTER SUPERSTORE CORP., : : B E N E F I T S Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 4000.2 Fifty percent penalty benefits awarded on healing period benefits. Initial questions existed as to compensability. Claims adjustor had undisputed medical records supporting compensability available by December 15, 1989 following September 28, 1989 injury. Payments were not initiated until March 17, 1990. Payments again were not made until July 19, 1990 due to insurer intracompany "mix up". Since insurer has control of its internal procedures and offered no reason outside its control for the "mix up", penalty awarded. Six days of benefits awarded under the arbitration decision were not paid, benefits awarded. 5-1802; 5-1803; 5-3003; 5-3800 File September 4, 1991 ELIZABETH A. NELSON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TERRY ANDERSEN, Claimant, vs. File No. 931352 SHELTER SUPERSTORES 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 COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1802 Defendants owed healing period benefits from the date claimant left work on October 6, 1989, still suffering from the effects of his work-related injuries until June 20, 1990, when his primary treating physician released him. Claimant was a full time student on the date of his release. 5-1803 Claimant, an over-the-road salesman with a high school degree and some post high school education at the time of hearing was awarded a 35 percent industrial disability. Claimant was 44 years old at the time of the hearing and 42 at the time of his injury. Claimant was not restricted from returning to his sales job. He chose to pursue educational goals instead. Claimant did not look for other work after his release to test the competitive labor market. Employer did not offer to re-employ claimant. Claimant's only restriction was a lifting restriction of between 40 and 50 pounds. Page 2 5-3003 5-3800 Carrier underpaid the rate. Claimant is owed the differential from the date the compensation was due with interest. The parties were directed to calculate the interest.