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
 

 
         
 
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              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.