BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER_____________________________________________________________________

:TAMMY LAMAN, :

:Claimant, :

:vs. :

: File No. 5003386VICK’S PLACE, :

: A R B I T R A T I O NEmployer, :

: D E C I S I O Nand :

:SOCIETY INSURANCE, :

:Insurance Carrier, : HEAD NOTE NOS: 1105; 1107; 16.02;Defendants. : 1603; 1801; 2003, 2700; 3001; 4000. 2

______________________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration that claimant, Tammy Laman, has brought against the employer, Vick’s Place, and its insurance carrier, Society Insurance, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on November 3,2000.

This matter came on for hearing before the undersigned deputy workers' compensation commissioner at Cedar Rapids, Iowa on February 3,2004. The record consists of the testimony of claimant and of Becky East, Dean East, Chad Velvick, Kay Klemme, and Shannan Coulson as well as of claimant’s exhibits 1 through 10 and defendants’ exhibits A through H. Briefs as submitted were reviewed.

ISSUES

The stipulations of the parties contained within the hearing report filed at the time of hearing are accepted and incorporated into this decision by reference to that report. Pursuant to those stipulations, claimant was single, and entitled to four exemptions on the date of injury. The issues to be resolved are:

1. Whether claimant sustained an injury that arose out of and in the course of her employment. Defendants assert affirmative defenses of abandonment of employment and of willful injury pursuant to either section 85.16(1) or section 85.16(3);

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2. Whether a causal relationship exists between any work injury and claimed temporary and permanent disability;

3. The extent of any period of temporary disability entitlement; claimant's seeks a running award of temporary benefits from the date of injury onward;

4. If claimant is currently entitled to permanent partial disability benefits, the extent of her entitlement to permanent partial disability to the leg;

5. Whether claimant is entitled to payment of certain medical expenses pursuant to section 85.27 as expenses incurred for reasonable and necessary treatment of a work-related injury; and

6. Whether claimant is entitled to additional benefits pursuant to section 86.13 as a result of defendants' delaying or denying benefits and then failing to appropriately and timely inform claimant of the reasons for that denial.

FINDINGS OF FACT AND ANALYSIS

The undersigned deputy workers' compensation commissioner, having heard the testimony and considered the evidence, finds:

The undersigned does not believe that any of the witnesses who were actually present and participated in the incident that forms the basis of claimant's claim of a work injury took the oath to tell the truth, the whole truth, and nothing but the truth wholly seriously. Nevertheless, when their testimony and the recorded statements transcribed and submitted as evidence as well as the November 4, 2000 medical report of Jan Purdy, M.D./Ph.D. and the Marengo, Iowa police log for 11:10 p.m. on November 3, 2000 are considered what follows is the most objective reconstruction of the incident and the events that preceded and precipitated it.

Claimant began her employment with Vick’s Place in June 2000, several weeks prior to this bar’s actual opening. She assisted with set up of the bar. She subsequently worked several months as the day bartender. Her home was several blocks from business, which meant that she was available to take deliveries and deal with other matters when the bar’s actual owner, who lived out of town, could not do so. As of October 2000, claimant was given the position of manager. Her duties expanded to include scheduling of employees and helping with hiring employees. Claimant apparently received additional wages for taking on these duties, that is, she was paid for several hours more then the business’ time clock recorded her as actually on duty.

Claimant personally had met two individuals, “ Matt and Travis, " via the Internet. Claimant had developed a romantic interest in one of these individuals and both of them had traveled from Ohio to Marengo, Iowa in order to stay and visit with claimant. Matt was hired as an evening bartender at Vick’s Place. Matt was working in that capacity on the Wednesday evening immediately proceeding Friday, November 3, 2000.

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An altercation broke out among Matt, Travis, and some bar patrons actually domiciled in the Marengo, Iowa vicinity. Although the altercation ended, animosity continued among these individuals.

Claimant worked her regular 7:00 a.m. to 4:00 p.m. day shift on Friday, November 3, 2000. She then left the business and returned to her home.

A band was scheduled to play at the bar on the evening of November 3, 2000. In order for the band to set up, the bar’s pool table had to be taken down and moved into the bar office. When the bar owner did not appear to undertake that task, Gia, the bartender on duty, called claimant at her home requesting her assistance. Only claimant and the actual bar owner had keys to the office. Claimant called the bar owner and discussed the matter. She then went back to the bar and worked with employees and patrons in dismantling the pool table. This was not unusual; claimant, as manager, often was either called in by other employees or voluntarily stopped by to check on the bar’s business even when she was not actually scheduled as a bartender.

“Bad blood” continued among Matt and Travis and "the locals" with whom they had fought on the preceding Wednesday evening. A fracas broke out among these individuals. Claimant attempted to intervene. The Marengo police were called. Claimant evicted a number of locals from the bar. One local, Joe Smith, was taken into custody and jailed.

In the midst of these events, claimant caught her left hand in the bar door and injured it. After traveling to the police station and making out a report about the bar brawl, claimant went to the Marengo Memorial Hospital to have her hand examined. She retained the bar office keys during that time.

Becky East was a bartender at the Lucky Penny, another local bar. She also was a sister of Joe Smith. Becky and her spouse frequented the Lucky Penny routinely even when Becky was not on duty. They were at the Lucky Penny as patrons on the evening of November 3, 2000. Becky had consumed alcohol. Word of the fight at Vick’s Place reached the Lucky Penny. Marengo is a small community. It is likely that information both about Joe Smith’s arrest and about the Vick’s Place’s manager’s role in that event were discussed in the Lucky Penny. Claimant was a large lady weighing over 350 pounds. It can be surmised that words that would convey a physical description of claimant were used in the Lucky Penny in discussing the fight at Vick’s Place.

Claimant had not drunk alcohol on the night of November 3, 2000.

When she left the hospital emergency department, claimant returned to Vick’s Place in order to lock the office door. By that time the band had arrived. The bar was very busy. Claimant finished cleaning up glass from the original fight and began to bus tables, as the bartenders on duty were too busy to do so. Claimant was furthering her employer's interest when she took on the task of cleaning up the glass and bussing

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tables. These are the types of duties that the bar manager would reasonably perform while within the bar during a very busy evening, even if off the clock.

Becky East and her spouse, both of whom had been drinking at the Lucky Penny, decided to leave that establishment and go to Vick’s Place. This was the first time either of them had frequented Vick’s Place. It is likely more than coincidental that Becky and her spouse first visited the latter establishment in the hours immediately subsequent to the bar fight in which claimant had evicted Joe Smith and filed the police complaint underlying his arrest.

Becky did not know claimant personally. Yet, it is reasonable to presume that Becky would have surmised that the large woman bussing tables was the Vick’s Place manager who had evicted Becky's brother.

A verbal altercation broke out between the women. One of them proposed that they "take [the argument] outside." Claimant felt taking the argument outside would at minimum protect the interior of the bar and its furnishings should a physical altercation ensue. Claimant exited the bar with Becky following her. While leaving, claimant instructed other bar employees to call the police. Instructing that the police be called is not an action consistent with intent to personally assault another individual. It is an action consistent with a bar manager’s thriving to maintain some degree of order in a disruptive situation.

Friends followed the two women out of the bar. Matt, Travis, and Shannan, a third friend of claimant's, stepped behind claimant and pulled her back in an attempt to prevent fisticuffs between Becky and claimant. Claimant fell. She caught most of her weight on her right knee, felt immediate pain, and could not bear weight. Claimant once again visited the emergency department of the Marengo Hospital.

A plain x-ray of the right knee showed early degenerative changes consistent with osteoarthritis but no acute bony or joint abnormalities. (Exhibit A, page 3) Dr. Purdy, who had examined claimant earlier in the evening for her hand injury, also examined her for the right knee condition. He noted that while claimant laughed throughout the interview, she occasionally became almost teary and appeared bothered that she had had two "such events" occur during the same evening.

The doctor found claimant's right knee tender to palpation, especially over the lower patellar region. Claimant had significant pain with both passive and active knee movement and was unable to flex the right knee beyond 60 degrees. Because of pain, claimant did not like to bear weight on the knee. The doctor diagnosed soft tissue trauma to the right knee. He did not believe that claimant's injuries were related to alcohol abuse on her part. (Ex. 1, pp.1 and 2)

Claimant was scheduled to bartend on Saturday evening, November 4, 2000. She telephoned her employer and advised him that she was using crutches, and,

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therefore, could not work that evening. The employer terminated claimant the following day as a result of her failure to bartend on Saturday evening.

Claimant had no health insurance or other means to pay for medical treatment. The employer apparently did not report the injury to his workers' compensation insurance carrier until approximately February 2001.

Claimant attempted work as a sales associate in a cooking supply store. Given her difficulty with sustained weight bearing on a painful right knee, she could not perform these duties and left that employment very shortly after she had been hired.

On December 17, 2000, this claimant fell in a grocery store parking lot. On December 20, 2000, claimant first saw Jeffrey Sutton, M.D. at the Covenant Clinic. Claimant then gave a history of having injured her right knee about two months earlier when she got into a fight with a patron at the bar where she worked. Claimant reported that her knee pain that had gotten slightly better over time although it continued to "go out from her." She stated that two days earlier, she had slipped in a snow-covered parking lot and hurt her knee again. Assessment was of right knee derangement. (Ex. 2, p. 3)

On February 26, 2001, claimant had a right knee MRI. That study showed a probable tear of the anterior cruciate ligament and a tear in the posterior horn of the medial meniscus. (Ex. 2, p.11) Dr. Sutton opined that claimant most likely sustained these injuries in the November 2000 work incident and that the injuries had made it very difficult or impossible for claimant to work in any capacity since that injury. (Ex. 2, p. 5)

On March 16, 2001, Dr. Sutton opined that until after an orthopedic specialist had evaluated and treated her knee condition, claimant would be limited to secondary work where she would lift a maximum of 10 pounds and would never need to squat or climb. (Ex. 2, p. 6)

Claimant saw Gary A. Knudson, M.D., an orthopedic specialist, on March 19, 2001. The doctor noted that claimant continued to have right knee discomfort with swelling and pain along the medial aspect of the knee and the anterior and posterior leg as well as a feeling that the knee would give out. On examination claimant had moderate AP laxity, mild medial laxity, and significant tenderness along the medial and posteromedial joint line. Given the findings on examination and MRI, Dr. Knudson believed that claimant had fairly significant right knee injury that occurred at work as she had described. He recommended that claimant consider right knee arthroscopy for assessment of the anterior cruciate ligament and debriding of the medial meniscal tear. (Ex. 2, pp 8-9)

R. F. Neiman, M.D. opined on December 11, 2002 that claimant has a 16 percent whole person impairment related to her right knee condition. (Ex. 3, p.13) Claimant has had no treatment for her right knee condition beyond her initial consultations with Drs. Sutton and Knudson. Further treatment of claimant's knee condition is warranted.

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Claimant has not reached maximum medical improvement and permanency cannot accurately be assessed on this record.

Claimant attempted a job as a school kitchen associate. Given her lack of tolerance for sustained weight bearing, she could not perform these duties and left that job.

Claimant's work experience does not qualify her for most sedentary jobs. Claimant has made good faith efforts to work in jobs for which she is otherwise qualified. Her untreated knee condition has made it impossible for her to maintain the types of employment for which she is otherwise qualified. Claimant is temporarily totally disabled from her knee condition and has been temporarily totally disabled from her November 3, 2000 injury onward.

Claimant’s pay stubs, contained in exhibit 8, are the best evidence of claimant's actual earnings with the employer. The employer apparently paid claimant on an irregular basis. Pay stubs from July 31, 2000 through October 30, 2003 best represent claimant's earnings in the 13 weeks immediately prior to her injury. Claimant has made no showing that any of these weeks does not fairly reflect her customary earnings. Earnings in that quarter equaled $3,421.92. Claimant's average weekly wage would be one-thirteenth of that amount or $263.22. A single individual injured on November 3, 2000, entitled to four exemptions, and having those average weekly earnings has a gross weekly rate of compensation of $191.38.

Kay Klemme is a senior claims representative for the workers' compensation insurance carrier. She testified that the insurer first learned of claimant's claim of the November 3, 2000 work injury in March 2001. Because claimant's claim involved a bar fight, the insurer hired an outside investigating agency to contact claimant, the employer, and other involved persons and get their statements. Ms. Klemme stated that after receiving the investigator’s report, she and her supervisor discussed claimant's claim. They decided that the incident did not arise out of the employment, as they felt the evidence showed that the incident related to a personal conflict involving claimant and her friends and because claimant was not working her regular schedule when the incident happened.

Ms. Klemme acknowledged that she had sent claimant a March 16, 2001 letter in which she advised claimant that the insurer then believed compensability of the claim was fairly debatable. Ms. Klemme also acknowledged that she had sent claimant an April 30, 2001 letter stating that after investigation of the claim, the insurer felt that claimant had not sustained an injury that arose out of in the course of her employment.

CONCLUSIONS OF LAW AND FURTHER ANALYSIS

The first issue considered is whether claimant received an injury on November 3, 2000 that arose out of and in the course of her employment.

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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)

The claimant has the burden of proving by of preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Ciha v. Quaker Oats Co., 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or source of the injury. The words “in the course of” refer to the time, place, and circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995). An injury arises out of the employment when a causal relationship exists between the injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational consequence of a hazard connected with the employment and not merely incidental to the employment. Koehler Electric v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551 N.W. 2d 309. An injury occurs “in the course of” employment when it happens within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. Ciha, 552 N.W.2d 143.

The employer had appointed claimant as the manager of his business. Both the employer and co-employees had previously called claimant if problems arose at work when claimant was not otherwise scheduled to work. Consistent with her position as manager, claimant had reported to Vick’s Place and dealt with the concern presented to her. The employer offered no evidence that employer ever instructed claimant not to continue the practice of making herself available to deal with problems that arose at the bar when she was not scheduled to bartend. Claimant was acting within this established practice when she reported to the bar on the evening of November 3, 2000 to assist with taking down the pool table. Claimant was also performing her functions as manager of the bar when she evicted the patrons involved in the initial Friday evening fight and when she pressed charges against Joe Smith. Likewise, claimant's returning to the bar after her initial emergency room visit in order to lock the office door and then assisting with bussing tables was consistent with the expectations placed upon a conscientious business manager.

When the totality of circumstances is considered, it reasonably can be inferred that the altercation between claimant and Becky East arose at least in part because claimant had evicted Joe Smith, Becky's brother, and caused his incarceration after the early evening bar brawl. Claimant's instructing coworkers to call the police and her leaving the bar when the altercation with Becky escalated were both acts that furthered the employer's interests in so far as each of these acts decreased the potential harm to bar furnishings and bar patrons should a physical altercation between claimant and Ms. East prove unavoidable.

Defendants argue that claimant had abandoned her employment in stepping outside the bar in the course of the altercation with Ms. East. The argument is not compelling. In hindsight, one could argue that claimant's decision that the heated exchange between Ms. East and her be taken outside the bar was unwise. Perhaps,

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had claimant stepped behind the bar or stepped within the office area, the altercation would have ended without further ado. Nevertheless, claimant was attempting to further the employer's interest both when she instructed that coworkers call the police when she left the bar. The exercise of poor judgment may well give the employer grounds for terminating an employee. That poor judgment, of itself, does not constitute an abandonment of employment, however.

Therefore, it is concluded that claimant has established an injury that arose out of and in the course of her employment at Vick’s Place on November 3, 2000.

Defendants have raised the affirmative defenses that either claimant was injured as a result of her willful intent to injure another or as a result of willful act of a third-party directed against claimant for reasons personal to claimant. Compensation is not allowed in either circumstance. See Section 85.16.

Each of the asserted affirmative defenses fails. The greater weight of the evidence demonstrates that the altercation between claimant and Becky East related to animosity that Ms. East felt towards claimant as a result of claimant's role in Ms. East’s brother's incarceration. Claimant was operating within the course and scope of her employment when she intervened in the earlier fight between her Internet friends and the locals. Again, while claimant's decision to continue to engage with Ms. East might have been unwise, the evidence does not demonstrate that claimant had a willful intent to injure Ms. East. Indeed, claimant's instructing her coworkers to call the police is an act inconsistent with any such intent.

In a similar vein, the animosity Ms. East felt for claimant directly related to claimant's performance of a work duty, namely, maintaining peace and order in the bar that she managed. That animosity cannot fairly be said to have its roots in reasons personal to claimant. This is case even though claimant's choice of friends may have played some role in the overall series of events at Vick’s Place during the days immediately preceding claimant's November 3, 2000 work injury.

Therefore, it is concluded that defendants have not established either the affirmative defense that claimant's injury resulted from her willful intent to injure another or the defense that the injury resulted from a willful act of another directed against claimant for reasons personal to claimant.

Next considered is the question of whether claimant's claimed disability to her right knee relates to her November 3, 2000 work injury.

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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. Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996)

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. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

Doctors Sutton, Knudson, and Neiman all relate claimant's continuing knee derangement and resulting symptoms to her November 3, 2000 work injury. The only contrary evidence that defendants present is that claimant had a fall on December 17, 2000. Dr. Sutton was aware of that fall. Its occurrence was consistent with the weakened state of claimant's right knee. Nothing in this record suggests that the fall in December 2000 substantially impacted on claimant's right knee condition.

Therefore, it is concluded that claimant has established a causal relationship between her November 3, 2000 work injury and her continuing right knee disability.

The nature and extent of claimant's current disability must be decided.

When an injured worker is wholly unable to work during a period of recuperation from an injury, the worker is entitled to temporary total disability benefits during the time the worker is disabled by the injury. Those benefits are payable until the employee has returned to work, or is medically capable of returning to work substantially similar to the work performed at the time of injury. Section 85.33(1)

Claimant has attempted to engage in employment since her work injury. Unfortunately, given the nature of her right knee condition and the need for further medical treatment of that condition she has been unable to sustain employment for which she is otherwise suited. Claimant remains temporarily totally disabled. She is likely to remain so for the foreseeable future unless defendants provide appropriate treatment for her work-related condition.

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Therefore, it is concluded that claimant has established entitlement to a running award of temporary total disability benefits with those benefits to commence on November 3, 2000 and continue throughout the period during which she remains temporarily totally disabled. Should defendants provide claimant with appropriate medical services such that she is no longer temporarily disabled, a party may file a claim in review-reopening for determination of the questions of whether claimant is entitled to permanent partial disability benefits and the extent of any such benefit entitlement.

Claimant's weekly rate of compensation is in dispute.

Section 85.36 states said the basis of compensation is the weekly earnings of the employee at the time of the injury. The section defines weekly earnings as the gross salary, wages, or earnings to which an employee would have been entitled had the employee worked the customary hours for the full pay period in which injured as the employer regularly required for the work or employment. The various subsections of section 85.36 set forth methods of computing weekly earnings depending upon the type of earnings and employment.

If the employee is paid on a daily or hourly basis or by output, weekly earnings are computed by dividing by 13 at the earnings over the 13-week period immediately preceding the injury. Any week that does not fairly reflect the employee’s customary earnings that fairly represent the employee’s customary earnings, however. Section 85.36(6).

Therefore, it is concluded that claimant has established a weekly rate of compensation of $191.38.

Claimant seeks payment of medical expenses as charges for reasonable and necessary treatment causally connected to work injury.

The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).

Therefore, it is concluded that claimant has established entitlement to payment of $1,746.50 for medical costs incurred as a result of for a work injury. That total includes the costs in the amount of $980.00 for an MRI at Covenant Medical Center on February 26, 2001; costs in the amount of $255.00 incurred with Covenant Clinic from December 20, 2000 through March 19, 2001; and costs in the amount of $511.50 with Marengo Memorial Hospital incurred on November 3, 2000 and November 4, 2000.

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Claimant seeks payment of additional benefits pursuant to 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:

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 claimthe “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.

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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 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 that dispute, if resolved in favor of the employer, would have

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supported the employer's denial of compensability Gilbert v. USF Holland, Inc., 637 N.W.2d 194 (Iowa 2001).

Claimant does not argue that the compensability of her claim was not fairly debatable. She argues that the reasons the insurer gave for denying her claim were so vague that they did not convey the basis for that denial to her. In its March 19, 2001 letter, the insurer indicated it would not then pay claimant benefits because claimant's claim was fairly debatable. In its April 30, 2001 letter, the insurer stated it was denying claimant's claim because it had concluded, after investigation, that claimant's injury did not arise out of and in the course of her employment.

Both "fairly debatable" and "arise out of and in the course of employment" are legal terms of art. They do not answer the simple question "Why?." Ordinary lay persons seeking compensation for conditions they believe are the result of work-related events are entitled to know the factual basis for the denial of their claims of work injury. In Meyers, the court clearly stated that the employer must assert facts demonstrating the reasonable basis for its denial of a claim. Plainly, this insurer did not do so. Imposition of a penalty is warranted.

Additionally, the employer has demonstrated no basis for its failure to report the claimed work injury from November 2000 until approximately March 1, 2001. That action also seriously impeded claimant's ability to get prompt medical care for her condition. For an employer to fail to report a work injury claim to its insurance carrier, the entity that generally is better qualified to investigate a claim’s compensability, is a most unreasonable act. Such failure to report clearly results in untimely payment of benefits in otherwise compensable claims. For this reason also, imposition of a penalty is warranted.

Given the substantial period during which claimant has received no benefits for her compensable injury, a penalty in the monetary amount of $17,500.00 is appropriate.

Therefore, it is concluded that claimant has established entitlement to additional benefits as a penalty pursuant to section 86.13 in the monetary amount of $17,500.00.

As a final matter, claimant's seeks taxation of costs for what is apparently a copy of claimant's deposition. Pursuant to rule 876 IAC 4.33, transcription cost may be taxed when appropriate. It is presumed that claimant's counsel was present at her deposition. Claimant has shown no reason why a transcribed copy of the deposition was necessary. Costs for the deposition copy, therefore, are not awarded.

ORDER

THEREFORE, IT IS ORDERED:

That defendants pay claimant temporary total disability benefits at the weekly rate of one hundred ninety-one and 38/100 dollars ($191.38) with those benefits to

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commence on November 3, 2000 and continue throughout the period of claimant's temporary total disability.

That defendants pay claimant all accrued amounts in a lump sum and pay interest as section 85.30 provides.

That defendants pay claimant additional benefits in the monetary amount of seventeen thousand five hundred dollars ($17,500.00) as a penalty pursuant to section 86.13.

That defendants pay claimant medical costs with Covenant Medical Center of nine hundred eighty dollars ($980.00), with Covenant Clinic of two hundred fifty-five dollars ($255.00), and with Marengo Memorial Hospital of five hundred eleven and 50/100 dollars ($511.50), and totaling one thousand, seven hundred forty-six and 50/100 dollars ($1,746.50).

That defendants pay costs in this matter, namely, the reasonable cost of attendance of a certified shorthand reporter at hearing, one hundred fifty dollars ($150.00) as a reasonable cost for Dr. Neiman’s report, and sixty-five dollars ($65.00) as reimbursement of the filing fee.

That defendants file subsequent reports of injury as this division requires.

Signed and filed this ____4th_____ day of March, 2004.

________________________ HELENJEAN M. WALLESER

DEPUTY WORKERS’ COMPENSATION COMMISSIONER

Copies to:

Mr. Thomas M. WertzAttorney at LawPO Box 849Cedar Rapids, IA 52406-0849

Mr. Kevin R. RogersAttorney at LawPO Box 1200Waterloo, IA 50704-1200

HJW/pjs