BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
DUANE SMIDT,
:
:
Claimant,
:
:
vs.
:
:
File No. 1136822
TELECOMMUNICATIONS, INC.,
:
:
ARBITRATION
Employer,
:
:
DECISION
and
:
:
OLD REPUBLIC INSURANCE,
:
:
Insurance Carrier,
:
Defendants.
:
Head Note Nos.: 1402.3; 1803.1; 4000.2
STATEMENT OF THE CASE
Claimant, Duane Smidt, has filed a petition in arbitration and seeks workers’
compensation benefits from Telecommunications, Inc., employer and Old Republic
Insurance, insurance carrier, defendants.
This matter was heard before deputy workers’ compensation commissioner, Ron
Pohlman on January 7, 2003, in Des Moines, Iowa. The record in the case consists of
claimant’s exhibits 1-73, defendants’ exhibits A-L, as well as the testimony of the
claimant.
ISSUES
The parties submitted the following issues for determination:
1. The nature and extent of the claimant’s entitlement to permanent partial
disability; and
2. Whether the claimant is entitled to payment of penalties pursuant to Iowa
Code section 86.13.
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Page 2
FINDINGS OF FACT
The undersigned, having considered all of the testimony and evidence in the
record, finds:
Claimant, at the time of the hearing, was 38 years old. He has a ninth grade
education and no GED. The claimant had trouble with math and spelling when he was
in school. He is able to read and balance his checkbook.
Claimant’s work experience consists of driving a garbage truck; auto body repair
and painting; landscaping and snow removal; truck driving; cable television installation
(for defendant employer) and driving a delivery truck. (Claimant’s Exhibit 62, pages
148-149)
Claimant began working for Telecommunications, Inc (TCI) in 1993 in Mason
City, Iowa as a cable television installer. Claimant installed cable from the ‘pole’ to the
house to the interior of the house. The work required the claimant to frequently climb
ladders.
The claimant noticed that he had developed a bump on his foot and sought
medical treatment with James Coddington, M.D., May 10, 1993. Dr. Coddington
recommended orthotics because the claimant had flat feet. (Ex. 1, p. 1) Claimant was
eventually diagnosed with plantar fibromatosis on January 17, 1995, by Edward S.
Henrich, D.P.M. (Ex. 7, p. 8)
Claimant underwent surgery for removal of the plantar fibromatosis on
January 17, 1995. (Ex. 10, p. 11) The claimant returned to work but the plantar
fibromatosis returned and a second surgery was performed by Dr. Henrich on
February 20, 1996. (Ex. 16, p. 20) Claimant again returned to work with TCI with a
gradual return to full duty. (Ex. 17, p. 23)
However, claimant again developed problems in his foot and underwent surgery
for a third time on June 26, 1996, by David L. Groen, D.P.M. (Ex. 24, p. 50) Dr. Groen
also performed a release of the medial plantar nerve. (Ex. 24, p. 50)
Dr. Groen released the claimant to return to work with a restriction of no ladder
work on August 15, 1996, for 3-6 months. (Ex. 23, p. 42) TCI placed the claimant in a
dispatcher position that did not require the claimant to work on ladders. The claimant
worked in a busy office doing paperwork and using computers. The claimant did not
like this type of work but it was consistent with his restrictions.
On October 9, 1996, the claimant quit his job at TCI to go to work at ABRA Auto
Body performing auto body repair as he had done in the past. ABRA paid the claimant
$11.50 per hour for full-time work (claimant was earning $8.00 per hour at TCI) and was
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Page 3
accommodating of his foot problems. However, ABRA went out of business. The
claimant was a stay-at-home parent after ABRA closed in 1997 and in 1998.
Claimant returned to see Dr. Groen January 2, 1997, and had continued
neuralgia of the left posterior tibial nerve, medial calcaneal branch and medial plantar
branch. (Ex. 23, p. 43) The claimant was scheduled to return to Dr. Groen in six
months when Dr. Groen predicted the claimant would be at maximum medical
improvement (MMI) but the claimant was having severe pain and returned on
February 28, 1997, and was given a cortisone injection. (Ex. 23, p. 44) Claimant was
noted to be hypersensitive to palpation over the medial branch of the posterior tibial
nerve. (Ex. 23, p. 44)
Claimant returned to Dr. Groen on March 19, 199,7 with hypersensitivity and was
given another cortisone injection. (Ex. 23, p. 44) On April 9, 1997, Dr. Groen noted:
Continued nerve entrapment and neuralgia from left posterior tibial
nerve, medial and lateral branch (355.8)
Contracture of hammertoe deformities, 2nd, 3rd and 4th digit and early
5th curly toe deformity (735.4)
PLAN: Had in-depth discussion regarding continued treatment
options. Continue conservatively as long as her [sic] can tolerate
although, due to extreme pain, have suggested neurolysis of the medial
and lateral branch of the posterior tibial nerve. Also discussed the need
for arthrodesis of the proximal interphalangeal joint bilateral digit.
Instructed the patient on loss of intrinsic musculature and possible atrophy
of the forefoot due to this procedure and mild contracture of the digits,
therefore needing to do the arthrodesis. The patient should still have long
flexors and extensors functional. The patient will consider these options
and will check with Tomie Kohl as far as prior authorization for any
surgical procedures in the past.
(Ex. 23, p. 45)
On September 18, 1997, the claimant had a fourth surgery by Dr. Groen. This
surgery consisted of a medial plantar nerve excision of the left forefoot; arthrodesis of
the left hallux interphalangeal joint; and arthrodesis of the proximal interphalangeal joint
of the second, third, and fourth digits on the left foot. (Ex. 25, p. 52) The surgery
successfully corrected the hammertoes but the hypersensitivity remained. (Ex. 23,
p. 47) On December 17, 1997, Dr. Groen released the claimant with restrictions for the
period from December 20, 1997, to June 20, 1998, of no walking greater than 300 yards
per interval, no standing greater than 30 minutes per hour, and no lifting to exceed 35
pounds. (Ex. 23, p. 48)
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Claimant was referred to M.S. Iqbal, M.D., for consultation regarding the
claimant’s continued pain. Dr. Iqbal saw the claimant on July 28, 1998, and diagnosed
a medial plantar neuroma. (Ex. 30, p. 66) Dr. Iqbal tried injections and medication and
then inserted an electrode in the ankle in an attempt to control the pain with nerve
stimulation. (Exs. 30-33, pp. 66-69) The nerve stimulator was ineffective and was
removed after four days. (Ex. 34, p. 70)
Next, Dr. Iqbal tried a morphine injection to see if the claimant was a candidate
for a morphine pump; however, due to the claimant’s reaction to the side effects, the
decision was made not to proceed with this device. (Ex. 33, p. 70 and Ex. 37, p. 77)
Claimant was then referred to Richard Leth, M.D., a pain specialist.
Dr. Leth performed a diagnostic left lumbar sympathetic block on April 26, 1999.
(Ex. 38, p. 79) The claimant did not obtain significant relief from this procedure and
Dr. Leth placed the claimant at MMI on May 7, 1999. (Ex. 39, p. 80)
An independent medical examination was done by Marc Hines, M.D., at
claimant’s request on June 11, 1999. Dr. Hines’ impression was:
At this time this is a patient with a complex regional pain syndrome
with medial lateral plantar fascitis [sic] with medial and plantar neuritis
secondary to this and some posterior tibial neuritis.
RATING: First of all I have to obtain the posterior tibial nerve from the
old text because the new text left it out inadvertently on Table 68 on page
89. Second of all, we will use Causalgia and Reflex Sympathetic
Dystrophy Rating methods for this. Finally, we will add from page 148
making an argument for the use of station and gait impairment criteria for
this patient.
RESTRICTIONS: This patient will not be able to bend, stoop, crawl or
take a stance to do any repetitive or any lifting because of his inability to
walk on his left lower extremity or stand on his lower extremity and use it
for balancing. He will not be able to walk for distances. He cannot sit
using foot controls and cannot stand for anything more than the very
shortest periods of a few minutes at a time. He will not be able to sit in an
automobile in a stationary position with his left foot without taking frequent
breaks every 10-20 minutes so that this will make driving unfortunately
impractical.
(Ex. 40, p. 84)
Dr. Hines felt that perhaps the first sympathetic block did not take and causally
connected the Complex Regional Pain Syndrome to the work injury. (Ex. 40, pp. 84-85)
Dr. Hines’ diagnosis of Complex Regional Pain Syndrome was not accepted by the
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Page 5
subsequent examining physicians. The defendants sent the claimant to Kenneth
Pollack, M.D., on October 5, 1999.
Dr. Pollack’s impression was:
IMPRESSION: Continued plantar neuritis. There is clearly not
complete denervation of the lateral plantar surface of the left foot. There
is absolutely no historical or physical findings to support the diagnosis of
reflex sympathetic dystrophy or chronic regional pain syndrome, Type II.
Specifically, the patient's pain is not out of proportion with the nerve injury,
he has no objective findings of vasomotor instability, no allodynia or
hyperesthesia outside of the distribution of the nerve. He also has failed
to respond to multiple therapies that would be expected to provide some
degree of improvement with chronic neuropathic pain such as peripheral
or dorsal column stimulation and a variety of neuroactive drugs. He also
had no response whatsoever to a lumbar sympathetic block. The pattern
of pain in the left thigh and leg sounds very much like a radicular
component of pain. This is supported by the physical finding of diminution
of light touch along the left L5 distribution. This could very likely be related
to abnormal body mechanics from the chronic limping and weight transfer
associated with the pain in patient’s chronic foot pain. The distribution of
pain, with greater proximal intensity than distal intensity is also more
consistent with nerve root origin pain then ascending neuropathic pain.
(Ex. 41, pp. 87-88)
Dr. Pollack did record that the pain was ascending the left leg with a burning or
aching pain in the left buttock. (Ex. 41, pp. 86-87)
Claimant was sent by his attorney to see William Koenig, M.D., for evaluation of
whether the claimant was a candidate to admission to Dr. Koenig’s pain clinic.
Dr. Koenig’s impression was:
Impressions: Mr. Smidt is experiencing a serious chronic pain
syndrome, secondary to chronic, refractory left foot pain and lower back
pain, s/p multiple foot surgeries. The most prominent features of this
chronic pain syndrome are (a.) A deteriorating lifestyle, characterized by
pain relief seeking and physical activity avoidance; (b.) Occupational
dysfunction; (c.) Maladaptive behavior patterns; (d.) Moderate
psychological consequences of pain syndrome; (e.) Pronounced
dependency on the health care system. Given this diagnostic profile, one
must conclude that Mr. Smidt is at high risk of protracted occupational
dysfunction and of continued dependency on the healthcare system,
disproportionate to pathophysiology.
(Ex. 44, p. 100)
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Dr. Koenig also performed an IME. In the IME report, Dr. Koenig also noted
radiation of the claimant’s symptoms up the leg at times. (Ex. 44, p. 105) Dr. Koenig’s
IME recommendations were for the claimant to see a spine surgeon because he felt it
quite likely the claimant had a discogenic lesion, which was causing the S1
radiculopathy found on EMG testing. (Ex. 45, p. 107)
On December 27, 1999, the claimant was seen by William Boulden, M.D., for
evaluation. Dr. Boulden concluded:
At this point in time, based on what facts are known, I cannot explain
why he has positive EMG findings. He does not have the radicular pain at
all. He has pain that radiates from his foot proximally, which would be
associated with probable neural irritation in the foot. He has a negative
neurological examination, consistent with no evidence of positive tension
signs, either by straight leg raising or Lasegue’s testing. Most of his
symptoms clinically are related to his lower back, probably at the sacroiliac
joint. This is confirmed on clinical examination where he had positive
Patrick's test that reproduced his left lower back pain, and positive isolated
hip extension on the left side, which also reproduced his left sacroiliac joint
area pain. Therefore, from a clinical standpoint, the patient his
mechanical back pain only, with no radicular pain.
As for cause and effect, I would state that there may be some cause
and effect in the fact that because of the limp, he has developed some low
back pain. I think this can be treated strictly by physical therapy with
mobilization and stabilization exercises. Therefore, at best, I would say he
has a temporary aggravation of his back, and is due some treatment.
However, I would not anticipate any specific disability rating based on
clinical examination.
In reference to the issue of the positive EMG, the only way that could
be truly put aside would be with doing an MRI of his back. I would be
surprised if we found a herniated disc, but there is always the possibility
that people can have an asymptomatic herniated disc. Therefore, an MRI
would help us to determine whether the EMG is a spurlous [sic] finding or
not.
Therefore, in conclusion, I think the patient needs treatment
concerning his back in reference to physical therapy. I would recommend
an MRI to clear up the issue on the EMG findings. Once again, I believe
there is only a temporary aggravation to his back; I do not believe this will
be a permanent aggravation.
SMIDT V. TCI
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In reference to the question concerning RSD, he does not seem to
have a clinical finding of RSD by physical examination today.
(Ex. 49, p. 126)
On January 25, 2000, Dr. Boulden noted that the MRI of the back showed
degenerative disc disease at the L5/S1 level and that the claimant had a very significant
lumbosacral angle, which would cause significant sheering forces. (Ex. 50, p. 127)
However, Dr. Boulden does not causally connect the back problems to the original work
injury. Instead, he attributes them to an incident in July 1999 where the claimant
experienced pain in his back after stepping in a hole at the Mason City race track.
(Ex. 52, p. 129)
Dr. Koenig saw the claimant again on August 15, 2001, for another IME at
claimant’s attorney’s request. Dr. Koenig attributed the claimant’s ongoing pain to his
left foot injury and surgeries and felt that the source of the left lower extremity problems
was most likely related to piriformis syndrome. (Ex. 46, pp. 110-111). Dr. Koenig ruled
out Complex Regional Pain Syndrome. (Ex. 46, p. 111) Dr. Koenig also responded to
Dr. Boulden’s opinions on the cause of the left lower extremity pain:
My apparent variance with Dr. Boulden requires several paragraphs of
discussion. When Mr. Smidt was sent to Dr. Boulden, all of us were
asking of him basically two questions: 1) is the patient's left lower
extremity pain, as well as his low back and gluteal pain, related to a
diskogenic lesion of the lumbar area; 2) is this a surgically remediable
lesion, if present, or should other treatment modalities be employed? Dr.
Boulden is a very fine orthopedic spine specialist, and it was his opinion
that the answer to both questions was a "no". Obviously, a positive EMG
indicating radiculopathy at S1 on the left was troublesome to him, but that
certainly did not alter the fact that no disk lesion was present, and no
surgery therefore obviously could be recommended.
The question is then raised: "How can this be reconciled with the
acute left S1 radiculopathy seen in 1999?” Using the retrospectoscope,
what I believe to be the case then and now was that the patient was
suffering from a piriformis syndrome, and the electrical abnormalities in
the S1 distribution seen in the leg were from irritation of the sciatic nerve
from the piriformis syndrome. The positive paraspinal findings, which of
course would lead any electromyographer to postulate a radiculopathy,
most likely were artifacts from the multiple instrumentations in that area
performed by Drs. lqbal and Weatherwax. Such abnormalities certainly
can persist for up to a year in the paraspinal muscles. Therefore, the
electromyographer would be logically deducing that abnormalities in the
paraspinal muscles at the corresponding level that are also seen in lower
extremity are coming from the nerve root. Of course, it could be the case
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that the patient did indeed have an actual left S1 radiculopathy rather than
the scenario just presented, although I now doubt it. Certainly one can
have a radiculopathy without having a herniated nucleus pulposus or other
diskogenic lesion. Other structures may be involved with the patient
therefore usually going on to healing the radiculopathy. It is just the case
that when diskogenic lesion is present that more aggressive treatment
needs to be accomplished. The possibility of a radiculopathy in the
absence of any demonstrable structural abnormality actually irritating the
nerve occurs on a rare basis for no apparent reason usually heals
completely. An example of this would be multiple lumbar radiculopathy of
diabetes mellitus.
I'm in agreement with Dr. Boulden that the patient's ankle injury has
not caused him to have "permanent impairment of the spine", but I do
believe that the patient’s altered gait pattern has caused him to have the
piriformis syndrome. I once again must reiterate that I greatly respect Dr.
Boulden, but also consideration must be given the concept that one must
not minimize the patient's proximal symptoms because of the negative
MRI and because the patient's symptoms are not classically "radicular."
When the person has several pain generators giving various qualities and
intensities of pain on an ongoing basis into the central nervous system, it
is very hard for a person to sort all of this out and be exactly certain what
he is experiencing. An analogy might be that one might want to watch a
baseball game on television and listen to a passage of classical music at
the same time. You obviously cannot do both but perhaps can appreciate
the music while putting the television on mute and observing the game.
Your wife now enters the room speaking loudly and excitedly about an
issue of great importance to her and to which you must attend. The net
effect is that, while trying to attend to all three, you clearly have not fully
appreciated the denouement of the musical passage which you had been
awaiting, not have understanding of how there are now two outs in the
ballgame when you remembered only seeing the first out, and you may
discover later on that you have annoyed your wife by not fully
comprehending all of the detail she was trying to impart to you! Even if
this scenario is not operative and there are fewer of pain generators, one
must remember the Valleix phenomenon. Thus, an entrapped or irritated
nerve can be tender, both distal and proximal to the point of involvement,
and there may be retrograde pain distribution (that is to say the pain is
going "the wrong way").
Dr. Boulden indicates the patient's miss-step at the Mason City
Racetrack has been the cause of his mechanical low back pain and that
this was a temporary aggravating factor, not the patient’s ongoing limp.
The patient’s continued back and gluteal pain has not been a temporary
situation for him. Certainly such a scenario as Dr. Boulden describes
does and can exist. However, with all things considered and particularly in
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view of the patient’s ongoing positive findings in the left sacroiliac region
and the presence of piriformis syndrome, I believe the persistent antalgic
gait are the causes of the patient’s gluteal and low back pain.
(Ex. 46, pp. 112-113)
Dr. Pollack does not believe the claimant has piriformis syndrome:
Duane Smidt has undergone a piriformis injection, followed up by
physical therapy. He had no lasting benefit from either the injection or the
physical therapy. In my experience, piriformis syndrome universally
responds to appropriate physical therapy. His failure to respond suggests
that this syndrome may not be responsible for his symptoms.
(Ex. 43, p. 92)
Dr. Koenig does not agree with Dr. Pollack:
As we have discussed previously, I greatly respect the opinions of
professional competence of Kenneth Pollack, M.D., and refer a number of
patients to him. However, in this particular situation, I do not entirely
agree that the patient’s lack of response to injection and physical therapy
therefore means that this treatment failure suggests (as implied by Dr.
Pollack) that the patient does not have piriformis syndrome. It has been
my clinical experience over the past 25 years that most patients do indeed
improve to some degree. I can recall two cases, however, which
completely failed to respond to conservative treatment; one obtained relief
by having surgery at the Mayo Clinic, and the other this point is still
contemplating that very surgery.
Mr. Smidt did show strong clinical evidence for the diagnosis of
piriformis syndrome, and this was documented by the electrodiagnostic
study. This electrophysiologic approach to diagnosis of piriformis
syndrome has appeared in the rehabilitation electrophysiology literature
since the late 1980s. The national expert quite likely is Loren M. Fishman,
M.D., who has written numerous articles. I would quote from the May,
1996 Advances in Rehabilitation, pages 43 through 45 (regarding the
efficacy of H-reflex testing, particularly in the FAIR position, in the
diagnosis of piriformis syndrome); "The results were not subtle. The
H-reflexes of normal patients did not change while the H-reflexes of
patients with the syndrome were normal in the anatomic position, but were
delayed an average of 3.2 msec in the FAIR test (six standard deviations
beyond what was seen in normal subjects). There is at least a less than 1
in 500 probability of this occurring by chance."
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Dr. Fishman and others published a review article of piriformis
syndrome in the Archives of Physical Medicine, Volume 83, March 2002,
indicating that the average improvement with conservative treatment was
71.1%. That study is enclosed for your perusal, and of course implies that
not all patients get better, even with excellent conservative treatment.
(Ex. 48, pp. 115-116)
Claimant has obtained a vocational evaluation from Roger Marquardt, a
vocational specialist. Mr. Marquardt opines that the claimant has experienced an
85-100 percent occupational loss in the competitive job market. (Ex. 53, p. 134)
Defendants conducted a video surveillance of the claimant on May 17 and 22,
2002, which is recorded on videotape in defendants’ exhibit L. The tape shows the
claimant walking without a limp, standing, prying upward on a pickup truck door using a
long bar for leverage and raising up on his toes to do so and bending over a car engine
to work on it. (Ex. L)
Claimant is currently receiving $733.00 per month in Social Security Disability
apparently based in part on the assessment that the claimant has Complex Regional
Pain Syndrome. (Ex. E, p. 2)
REASONING AND CONCLUSIONS OF LAW
The first issue in this case is the nature and extent of the claimant’s entitlement
to permanent partial disability.
The party who would suffer loss if an issue were not established has the burden
of proving that issue by a preponderance of the evidence. Iowa R. of App. P.
6.14(6)(e).
The claimant has the burden of proving by a preponderance of the evidence that
the injury is a proximate cause of the disability on which the claim is based. A cause is
proximate if it is a substantial factor in bringing about the result; it need not be the only
cause. A preponderance of the evidence exists when the causal connection is probable
rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
The question of causal connection is essentially within the domain of expert
testimony. The expert medical evidence must be considered with all other evidence
introduced bearing on the causal connection between the injury and the disability. The
weight to be given to any expert opinion is determined by the finder of fact and may be
affected by the accuracy of the facts relied upon by the expert as well as other
surrounding circumstances. The expert opinion may be accepted or rejected, in whole
or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965).
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The specific question to address first is whether the injury has caused an injury to
the body as a whole. The claimant alleges a body as whole condition arising out of
chronic pain and piriformis syndrome in reliance upon the opinions of Dr. Koenig.
Dr. Koenig was hired by the claimant for examination in anticipation of litigation and the
defendants argue that he has been led to his opinions by the efforts of claimant’s
attorney to create a body as a whole case.
Certainly Dr. Koenig’s opinions must be viewed with consideration of how and
why they were obtained but such does not mean those opinions must be discounted or
disregarded. Dr. Koenig provides detailed rationale for his diagnosis of piriformis
syndrome and supports that rationale with citation to research and his own clinical
experience. However, an assumption underlies Dr. Koenig’s opinions: that the claimant
has developed the piriformis syndrome as a result of gait derangement brought on by
the foot injury. The activity of the claimant depicted in Exhibit L rebuts that assumption.
There is no evidence in the claimant’s movements of gait derangement nor does
the claimant appear to be limited in his movement by pain although obviously it is less
observable to detect such limitation. Moreover, there is evidence of an intervening
cause of the back and lower extremity complaints--the incident at the Mason City
Racetrack.
The claimant has failed to establish that he has sustained a whole body disability
as a result of the work injury to his left foot on December 22, 1995. As the disability is
limited to the foot and not the body as a whole, the claim cannot be evaluated as an
industrial loss pursuant to Iowa Code section 85.34(2)(u).
The extent of disability must be measured pursuant to Iowa Code section
85.34(2)(n) and the loss computed as a percentage of 150 weeks for the loss of use of
the foot.
In this case the claimant has a 36 percent functional impairment rating to the left
foot as a result of the injury and subsequent surgeries. This translates to an entitlement
of 54 weeks under Iowa Code section 85.34(2)(n). Claimant has stipulated that he has
been paid 70 weeks of permanent partial disability, which is the equivalent of 46.67
percent disability to the left foot. It is found that the claimant has sustained a 36 percent
permanent disability to the left foot so the claimant is entitled to take nothing further for
permanent partial disability.
The other issue in this case is whether the claimant is entitled to payment of
penalties pursuant to Iowa Code section 86.13.
In Christensen v. Snap-on Tools Corp., 554 N.W.2d 254 (Iowa 1996), and
Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996), the supreme court
said:
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Based on the plain language of section 86.13, we hold an employee is
entitled to penalty benefits if there has been a delay in payment unless the
employer proves a reasonable cause or excuse. A reasonable cause or
excuse exists if either (1) the delay was necessary for the insurer to
investigate the claim or (2) the employer had a reasonable basis to
contest the employee’s entitlement to benefits. A “reasonable basis” for
denial of the claim exists if the claim is “fairly debatable.”
Christensen, 554 N.W.2d at 260.
The supreme court has stated:
(1) If the employer has a reason for the delay and conveys that reason
to the employee contemporaneously with the beginning of the delay, no
penalty will be imposed if the reason is of such character that a
reasonable fact finder could conclude that it is a "reasonable or probable
cause or excuse" under Iowa Code section 86.13. In that case, we will
defer to the decision of the commissioner. See Christensen, 554 N.W.2d
at 260 (substantial evidence found to support commissioner’s finding of
legitimate reason for delay pending receipt of medical report); Robbennolt,
555 N.W.2d at 236.
(2) If no reason is given for the delay or if the “reason” is not one that
a reasonable fact finder could accept, we will hold that no such cause or
excuse exists and remand to the commissioner for the sole purpose of
assessing penalties under section 86.13. See Christensen, 554 N.W.2d at
261.
(3) Reasonable causes or excuses include (a) a delay for the
employer to investigate the claim, Christensen, 554 N.W.2d at 260;
Kiesecker v. Webster City Custom Meats, Inc., 528 N.W.2d at 109, 111
(Iowa 1995); or (b) the employer had a reasonable basis to contest the
claimthe “fairly debatable” basis for delay. See Christensen, 554
N.W.2d at 260 (holding two-month delay to obtain employer’s own medical
report reasonable under the circumstances).
(4) For the purpose of applying section 86.13, the benefits that are
underpaid as well as late-paid benefits are subject to penalties, unless the
employer establishes reasonable and probable cause or excuse.
Robbennolt, 555 N.W.2d at 237 (underpayment resulting from application
of wrong wage base; in absence of excuse, commissioner required to
apply penalty).
If we were to construe [section 86.13] to permit the
avoidance of penalty if any amount of compensation benefits
are paid, the purpose of the penalty statute would be
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frustrated. For these reasons, we conclude section 86.13 is
applicable when payment of compensation is not timely . . .
or when the full amount of compensation is not paid.
Id.
(5) For purposes of determining whether there has been a delay,
payments are “made” when (a) the check addressed to a claimant is
mailed (Robbennolt, 555 N.W.2d at 236; Kiesecker, 528 N.W.2d at 112),
or (b) the check is delivered personally to the claimant by the employer or
its workers’ compensation insurer. Robbennolt, 555 N.W.2d at 235. In
the present case, the insurer sent the checks to the employer, not to the
claimant. The employer then delivered the checks to the claimant. In this
case, payment is not “made” for penalty purposes until the claimant
actually receives the check. See Id. at 235.
(6) In determining the amount of penalty, the commissioner is to
consider factors such as the length of the delay, the number of delays, the
information available to the employer regarding the employee’s injury and
wages, and the employer’s past record of penalties. Robbennolt, 555
N.W.2d at 238.
(7) An employer’s bare assertion that a claim is “fairly debatable” does
not make it so. A fair reading of Christensen and Robbennolt, makes it
clear that the employer must assert facts upon which the commissioner
could reasonably find that the claim was “fairly debatable.” See
Christensen, 554 N.W.2d at 260.
Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996).
Weekly compensation payments are due at the end of the compensation week.
Robbennolt, 555 N.W.2d 229, 235.
Penalty is not imposed for delayed interest payments. Davidson v. Bruce, 593
N.W.2d 833, 840 (Iowa App. 1999).
When an employee’s claim for benefits is fairly debatable based on a good faith
dispute over the employee’s factual or legal entitlement to benefits, an award of penalty
benefits is not appropriate under the statute. Whether the issue was fairly debatable
turns on whether there was a factual dispute that, if resolved in favor of the employer,
would have supported the employer's denial of compensability Gilbert v. USF Holland,
Inc., 637 N.W.2d 194 (Iowa 2001).
Specifically the claimant alleges that he is entitled to penalties for the delay in
payment of temporary disability benefits for the period from April 3, 1998, to October 26,
1998, when the carrier cut off the claimant’s temporary disability benefits without
sufficient reason.
SMIDT V. TCI
Page 14
The defendants stopped paying with a letter to the claimant dated March 4, 1998,
indicating the reason for termination of the benefits was that the claimant had been
released to work on light duty and the employer had light duty available. This is
consistent with the claimant’s testimony and the record. On October 26, 1998, the
defendants paid the claimant in lump sum for the temporary benefits due for the period
from April 5, 1998, to October 31, 1998. No explanation was given for the delay.
The light duty work provided for the claimant was clearly not substantially similar
work so no argument can be made that the decision of whether to pay for this period
was fairly debatable.
A 50 percent penalty is imposed on the delayed temporary benefits due for the
period from April 3, 1998, to October 26, 1998.
ORDER
THEREFORE IT IS ORDERED:
That claimant take no further permanency benefits.
That defendants receive a credit for sixteen (16) weeks of overpaid permanency
at the weekly rate of two hundred twenty-eight and 07/100 dollars ($228.07).
That defendants pay a fifty (50) percent penalty on delayed temporary benefits
due for the period from April 3, 1998, to October 26, 1998.
Accrued benefits shall be paid in lump sum together with interest pursuant to
Iowa Code section 85.30 with subsequent reports of injury pursuant to rule 876 IAC 3.1.
That costs of this action are taxed to the defendants.
Signed and filed this _____7th____ day of February, 2003.
________________________
RON POHLMAN
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies to:
Mr. Max Schott
Attorney at Law
6959 University Ave.
Des Moines, IA 50311
SMIDT V. TCI
Page 15
Mr. Joseph A. Quinn
Attorney at Law
700 Walnut St., STE 1600
Des Moines, IA 50309
RRP/pjs