BEFORE THE IOWA INDUSTRIAL COMMISSIONER LOUIS M. SWAIN, Claimant, VS. File No. 357574 TERRA EASTERN CORPORATION, D E C I S I 0 N Employer, C 0 N C E R N I N G and S E C T I 0 N 85.27 THE HARTFORD, B E N E F I T S Insurance Carrier, Defendants. INTRODUCTION This is a proceeding to recover medical expenses brought by Louis M. Swain against Terra Eastern Corporation, his former employer, and The Hartford Insurance Company, the employer's insurance carrier. The case was heard and fully submitted at Cedar Rapids, Iowa, on October 25, 1988. The record in this proceeding consists of testimony from Louis M. Swain, joint exhibits 1 through 9, claimant's exhibits 1A, 1B and 10, and defendants' exhibits A, B and C. ISSUES Claimant seeks benefits under the provisions of Code section 85.27 for medical expenses and transportation expenses incurred in treating burns which he sustained to his feet on or about January 22, 1987. The issues presented for determination are whether the burn constitutes an injury arising out of and in the course of his employment and, whether a causal connection exists between claimant's original work-related injury that occurred on April 30, 1970 and the burns to his feet. Claimant seeks to recover benefits in the total amount of $21,554.04 under the provisions of Code section 85.27 and also seeks to recover a penalty under the provisions of Code section 86.13 for the allegedly unreasonable denial of benefits. SWAIN V. TERRA EASTERN CORPORATION Page 2 SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Louis M. Swain severed his spinal cord at the seventh thoracic vertebra in an accident that occurred on April 30, 1970 when he was thrown from the truck he was driving for Terra.Eastern Corporation. Since that time, claimant has had no sensation below the level of his seventh rib. Swain testified that he is afflicted with a number of conditions which accompany his T-7 paraplegia. One.of these conditions is fragile skin on his feet and lower extremities. Claimant testified that on January 22, 1987, he was bathing in the tub at his mother's home using the same practices as he has customary used since his 1970 accident. Claimant stated that he repeatedly tested the temperature of the water with his hands since he was aware that hot water could injure his feet. Claimant noticed no incident when hot water would have come into contact with his feet, but approximately ten or fifteen minutes after he completed bathing, he observed a blister sac forming on his right foot. Claimant sought medical treatment and was hospitalized at the University of Iowa Hospitals in Iowa City, Iowa. Claimant was found to have a 4.5% body surface area scald burn, partial and full thickness injury. He was treated with tangential excision with split -thickness skin grafting to the right foot (discharge summary dated 02-06-87, exhibit 2, page 31). In the course of obtaining the full. range of treatment which was provided for the burns, the following medical expenses were incurred: University of Iowa $16,603.03 (exh. 5, page 14) Hospitals & Clinics University of Iowa 126.13 (exh. 5.page 15) Hospitals & Clinics University of Iowa 261.68 (exh. 5, page 16) Hospitals & Clinics Louisa Co. Public Health Nurse 224.00 (exh. 5, page 17) Brian D. Masonholder, D.O. 16.00 (exh. 5, page 19) University of Iowa 4,172.00 (exh. 5, page 4) Hospitals & Clinics Mileage - 720 miles @ $.21 151.20 (exh. 5, page 1) Total $21,554.04 SWAIN V. TERRA EASTERN CORPORATION Page 3 In the course of of.claimant's treatment for the burns and subsequent thereto, claimant was seen by a number of physicians. The director of the burn center at the University of Iowa Hospitals and Clinics, G. P. Kealey, M.D., in a report dated May 21, 1987 stated: This letter is to certify to you that you were treated at the University of Iowa Burn Center during the months of January and February 1987 for burns incurred to your feet. You were injured 17 years ago, leaving you below the waist and insensate the [sic) injuries to your feet are a direct result of the lack of sensation in your lower extremities and . This may be directly related to your traumatic injury and spinal cord accident. Therefore, I think that the burns are a direct and long term result of your traumatic injury. (Exhibit 2, page 15) Reginald R. Cooper, M.D., the head of the Department of Orthopaedic Surgery at the University of Iowa Hospitals and Clinics, answered written interrogatories which stated that the changes which resulted from claimant's paraplegia played a major role in the severity of the burns which he suffered and that it was his opinion that claimant had always cared for himself appropriately (exhibit 6). Other physicians have also expressed the opinion that the burns are a complication of the original spinal cord injury (exhibit 7). It was stipulated in the prehearing report that the providers of the services for which claimant seeks payment would testify that the fees charged are reasonable, and that the expenses were incurred in providing reasonable and necessary treatment. APPLICABLE LAW AND ANALYSIS The primary issue in this case revolves around whether or not the burns which claimant sustained on January 22, 1987 are an injury which arose out of and in the course of his employment. It may also be stated that the issue is whether the injury that occurred on April 30, 1970 was a proximate cause of the burns which were sustained on January 22, 1987. The two concepts of proximate cause and arising out of are actually the same issue since the "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury'. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 30, 1970 is a proximate cause of the injury that occurred on January 22, 1987 and of the medical expenses incurred as a result of that 1987 injury. 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). SWAIN V. TERRA EASTERN CORPORATION Page 4 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 expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co. , 261 Iowa 352, 154 N.W.2d 128 (1967). When a worker sustains an injury, later sustains another injury, and subsequently seeks to reopen an award predicated on the first injury, he or she must prove one of two things: (a) that the disability for which he or she seeks additional compensation was proximately caused by the first injury, or (b) that the second injury (and ensuing disability) was proximately caused by the first injury. DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 (Iowa 1971). For a cause to be proximate, it need only be a substantial factor in producing the result. It need not be the sole cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Claimant's testimony regarding bathing and then observing the burn injury is accepted as being correct. Claimant need not prove the precise manner in which the burn occurred. Even if claimant were himself negligent, negligence is not a defense in a workers' compensation proceeding. The defense did not claim that claimant had committed willful self-injury and there is no substantial evidence in the record which could support such a defense. All.of the medical practitioners who have expressed an opinion have stated that the spinal cord injury made claimant unable to protect himself from injuries of the type that he sustained. Simply stated, he is unable to detect injurious heat and his skin has increased susceptibility to burn injuries when compared to the skin of a normal individual with normal sensation. When all the evidence is considered, it is determined that the original injuries sustained on April 30, 1970 made claimant's lower extremities insensate and that the burns were suffered due to the fact that his lower extremities are insensate. SWAIN V. TERRA EASTERN CORPORATION Page 5 It is therefore determined that the injury of April 30, 1970 was a proximate cause of the burns which claimant sustained on January 22, 1987 and of all expenses incurred in treating those burns. The burn injury therefore arose out of and in the course of claimant's employment with Terra Eastern Corporation and the burn injuries were proximately caused by the April 30, 1970 injury to claimant's spinal cord. Claimant seeks a penalty under Code section 86.13. In doing so, he alleges that the benefits payable under Code section 85.27 were unreasonably denied. Claimant would likely be entitled to recover the penalty he seeks, except for the fact that the Iowa Supreme Court has ruled that the penalty does not apply to benefits which are payable under Iowa Code section 85.27. Klein v. Furnas Electric Co., 384 N.W.2d 370, 375 (Iowa 1986). This agency does not have subject matter jurisdiction to award a penalty under a first party bad faith tort theory. Dolan v. Aid Insurance Co., 341 N.W.2d 790 (Iowa 1988). It has not yet been determined whether a recovery in tort under Dolan may be obtained for benefits payable under section 85.27 since Code section 86.13 does not provide a remedy for the bad faith or wrongful denial of section 85.27 benefits. FINDINGS OF FACT 1. Louis M. Swain burned his feet while bathing on January 22, 1987. 2. The precise manner in which he was exposed to injurious temperatures cannot be determined other than that it occurred while he was bathing. 3. The injuries that Swain sustained on April 30, 1970 left his lower extremities insensate and unable to detect injurious heat levels. 4. As a result of the April.30, 1970 injury, claimant's lower extremities were unusually susceptible to heat injuries. 5. The spinal.cord injury that occurred on April 30, 1970 was a substantial factor in producing the burn injuries which Swain sustained on January 22, 1987 and also of the medical expenses incurred in treating those burn injuries. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The burns which Louis M. Swain suffered on his feet on January 22, 1987 were proximately caused by the spinal.cord injury that he sustained on April.30, 1970. SWAIN V. TERRA EASTERN CORPORATION Page 6 3. The burns that Swain sustained on January 22, 1987 are a part of the injury that Swain sustained on April 30, 1970 which arose out of and in the course of his employment with Terra Eastern Corporation. 4. Defendants are liable under the provisions of Code section 85.27 for paying all expenses of medical treatment incurred in treating the burns, in the total amount of $21,554.04, of which $151.20 is travel expenses payable to Swain. 5. This agency does not have subject matter jurisdiction to award any penalty for the wrongful or unreasonable failure to pay benefits which are due under Iowa Code section 85.27. ORDER IT IS THEREFORE ORDERED that defendants, pursuant to Iowa Code section 85.27, pay the following expenses: University of Iowa $16,603.03 (exh. 5, page 14), Hospitals & Clinics University of Iowa 126.13 (exh. 5. page 15) Hospitals & Clinics University of Iowa 261.68 (exh. 5. page 16) Hospitals & Clinics Louisa Co. Public Health Nurse 224.00 (exh. 5, page 17) Brian D.Masonholder, D.O. 16.00 (exh. 5, page 19) University of Iowa 4,172.00 (exh. 5, page 4) Hospitals & Clinics Mileage - 720 miles @ $.21 151.20 (exh .5, page 1) Total $21,554.04 IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 6th day of June 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER SWAIN V. TERRA EASTERN CORPORATION Page 7 Copies To: Mr. Jay T. Schweitzer Attorney at Law 222 Main Street Columbus Jct., Iowa 52738 Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Square 400 Main Street Davenport, Iowa 52801 1101, 1108.50, 1402.30, 2207, 2501, 4000.2 Filed June 6, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LOUIS M. SWAIN, Claimant, File No. 357574 VS. D E C I S I 0 N TERRA EASTERN CORPORATION C 0 N C E R N I N G Employer, S E C T I 0 N 85.27 and B E N E F I T S THE HARTFORD, Insurance Carrier, Defendants. 1101, 1108.50, 1402.30, 2207, 2501, 4000.2 Claimant was made a paraplegic in an accident that occurred in 1970. In 1987, his feet were burned by hot water while bathing. The spinal cord injury sustained in 1970 made claimant unable to distinguish injurious levels of heat and also made his skin more susceptible to heat injury. It was determined that the burn injuries he sustained to his feet, and the resulting medical treatment expenses, were proximately caused by the 1970 injury and, as such, they were part of that 1970 injury which arose out of and in the course of his employment. Claimant sought a penalty for the wrongful denial. A penalty would certainly have been warranted, except for the court's ruling in Klein. It was held that the agency lacked subject matter jurisdiction to grant a penalty under a first party bad faith tort theory. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RONALD KINER, Claimant, VS. File No. 363177 SCHILL & HANSON BUILDERS, INC., A P P E A L Employer, R U L I N G and RELIANCE INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ Claimant appeals from a ruling which sustained defendants' motion for summary judgment on rehearing because claimant's petition for medical benefits is moot. Defendants have paid or tendered payment for all of claimant's medical bills; however, defendants do not admit liability. Claimant argues that this agency must make a determination of liability in this matter even though the medical bills have been paid. Claimant also points out that his bad faith claim for nonpayment of medical benefits in district court has been stayed until this agency makes a determination of claimant's entitlement to medical benefits. This agency has jurisdiction to determine the legal rights of the parties in a contested case. Iowa Code section 17A.2(2) provides a definition of contested cases: "'Contested case' means a proceeding including but not restricted to ratemaking, price fixing, and licensing in which the legal rights, duties or privileges of a party are required by Constitution or statute to be determined by an agency after an opportunity for an evidentiary hearing." Iowa Code section 86.14 states: 1. In an original proceeding, all matters relevant to a dispute are subject to inquiry. 2. In a proceeding to reopen an award for payments or agreement for settlement as provided by section 86.13, inquiry shall be into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation so awarded or agreed upon. Iowa Code section 86.17(l) states: A deputy industrial commissioner may preside over any contested case proceeding brought under this chapter, chapter 85 or 85A in the manner provided by chapter 17A. The deputy commissioner or the commissioner may make such inquiries and investigation in contested case proceedings as shall be deemed necessary, consistent with the provisions of section 17A.17. Where claimant's medical bills have been paid, no legal rights for determination by this agency exist. WHEREFORE, the ruling of the deputy is affirmed. THEREFORE, it is ordered: That defendants' motion for summary judgment is sustained with the result that this contested case proceeding is terminated; all costs are taxed to defendants. Signed and filed this 11th day of June, 1987. DAVID E. LINQUIST ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Barry J. Nadler Attorney at Law 612 Kellogg Avenue Ames, Iowa 50010 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Avenue, Suite 111 Des Moines, Iowa 50312 BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID KELLY COLLAN, Claimant, File No. 381770 vs. R E V I E W - MUGGE FEED CO., INC., R E O P E N I N G Employer, D E C I S I O N and F I L E D IOWA INSURANCE GUARANTY ASSOCIATION on behalf of the APR 18 1990 insolvent IOWA NATIONAL MUTUAL, INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a review-reopening proceeding brought by David Kelly Collan, claimant, against Mugge Feed Company, employer, and the Iowa Insurance Guaranty Association on behalf of Iowa National Insurance Company, In Insolvency, defendants. The case was heard by the undersigned in Storm Lake, Iowa on August 11, 1989. A memorandum of agreement was executed on February 18, 1972. Upon checking the records of the Division of Industrial Services, it was determined by the undersigned that a memorandum of agreement was filed with the division on February 18, 1972. The memorandum of agreement was approved by then Deputy Industrial Commissioner, Kenneth L. Doudna. The record consists of the testimony of claimant. The record also consists of the testimony of Jerry Estes, former attorney of claimant, and the testimony of Curt Lindell, former claims examiner at Iowa National Mutual Insurance Company. The record additionally consists of joint exhibits A-G and claimant's exhibits 1-6. ISSUES As a result of the.prehearing report and order submitted and approved on August 11, 1989, the issues presented by the parties are: 1. Whether there is a causal relationship between the alleged injury and the disability; 2. Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; 3. Whether claimant is entitled to medical benefits under section 85.27; 4. Whether defendants are entitled to an off-set or credit from the proceeds of a third-party settlement; and, 5. Whether defendants are entitled to raise a section 85.26 defense, and if so, its applicability to the case at hand. STIPULATIONS Pursuant to the aforementioned prehearing report, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained an injury on December 7, 1971, which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary and permanent disability to the leg; 4. That the extent of entitlement to weekly compensation for temporary total disability or healing period is stipulated to be from December 8, 1971 for the leg; 5. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $62.31 healing period, $59.00 per week permanent partial disability; and, 6. Defendants paid claimant 31.8 and 53 weeks of compensation at the rate of $62.31 and $59.00 respectfully per week prior to hearing. FACTS PRESENTED Claimant is 36 years old. Currently, he is employed as a general construction worker where he engages in many aspects of construction. Claimant is an hourly employee who is paid $7.25 per hour. On December 7, 1971, claimant's left leg was trapped in a grain auger. Claimant stated he received workers' compensation benefits. Claimant indicated he had less feeling in his left leg. He stated he had less movement and less circulation in his left leg. His foot was purple in color, according to claimant. Claimant further described his condition at the time of the hearing. He said he had pain in his hips and lower back. He indicated it was difficult to walk and he could not lift more than 50 to 75 pounds. Claimant reported the onset of his back problems began in the latter part of 1986 and he sought medical treatment in Iowa City. Claimant reported he believed his back problems were because of his leg condition and his problems had increased since their onset. Claimant testified he brought a third party action against American Cyanamid in Federal District Court for the 1971 left leg injury. The suit was eventually settled for $30,000.00 according to claimant. He stated he paid $5,000.00 back to Iowa National Mutual Insurance Company and the insurance company agreed to pay all medical bills for the left leg. Claimant related certain medical expenses were paid until 1985. Then in January of 1986, claimant stated he was informed his medical expenses would not be paid by Iowa National Mutual Insurance Company. Jerry Estes testified on behalf of claimant. He related he was claimant's attorney in the previous workers' compensation case and in the third party lawsuit with American Cyanamid. Mr. Estes testified that with the third party suit, Iowa National agreed to advance some of the expenses, to pay 50 percent of the costs, to reduce its lien by $8,000.00 and to allow claimant future medical benefits. According to Mr. Estes, Iowa National was willing to compromise its lien so that a $30,000.00 settlement between claimant and American Cyanamid would become finalized. Mr. Estes related he dealt with Mr. Curt Lindell. The witness testified an offset was never discussed between the two until a letter was issued in 1986. Curt Lindell testified he was a 20 year employee of Iowa National.Mutual Insurance Company. He stated in 1971 he had dealt with Mr. Estes relative to this case. According to Mr. Lindell, the settlement of the claim against the third party was negotiated. The carrier, he stated, agreed to reduce its subrogation rights from $10,000.00 to $8,000.00, but the carrier did not waive any other rights. Mr. Lindell testified that Mr. Jack Berry would have had to approve a waiver of an offset against future medical benefits. According to Mr. Lindell, Mr. Berry never approved a waiver. Mr. Lindell also testified that in 1980 some of claimant's medical benefits were paid because the witness forgot about the offset. APPLICABLE LAW AND ANALYSIS The first issue to address is whether claimant is entitled to future medical benefits as a result of his injury on December 7, 1971. A memorandum of agreement was filed with this division on February 18, 1982. The memorandum was approved by then Deputy Industrial Commissioner Kenneth L. Doudna. Upon review of the documents relative to this file, the undersigned takes administrative notice there is no settlement agreement on file as mandated by section 85.22 (3)(4) of the Iowa Code (1971) Sections 85.22(3) and 85.22(4) provide that: 3. Before a settlement shall become effective between an employee or an employer and such third party who is liable for the injury, it must be with the written consent of the employee, in case the settlement is beween [sic] the employer or insurer and such third person; and the consent of the employer or insurer, in case the settlement is between the employee and such third party; or on refusal of consent, in either case, then upon the written approval of the industrial commissioner. The industrial commissioner may compromise and settle on behalf of the state of Iowa any workman's compensation cases of doubtful liability. 4. A written memorandum of any settlement, if made, shall be filed by the employer or insurance carrier in the office of the industrial commissioner. There was no written evidence presented that claimant consented to an offset of future medical benefits. Neither was there filed with the Division of Industrial Services, a written memorandum of any alleged settlement between claimant, Iowa National Mutual Insurance Company or American Cyanamid. Iowa National Mutual Insurance Company did not comply with section 85.22. Additionally, between November 1975 and January of 1986, Iowa National Mutual Insurance Company paid $3,989.36 in additional medical bills relative to claimant's injury of December 7, 1971. There was no mention of any offset for over 11 years. It is the determination of the undersigned that claimant is entitled to medical benefits, including future reasonable and necessary medical benefits, such as special shoes and foot pads. Defendant Iowa Insurance Guaranty Association on behalf of Iowa National Mutual Insurance Company is not entitled to an offset for reasonable and necessary medical expenses. The next issue to address is whether claimant is entitled to weekly benefits under section 86.14. In a review-reopening proceeding, claimant has the burden of proof. He must establish that the increased capacity on which his case is based, stems from the original injury. Wagner v. Otis Radio & Electric Co., 254 Iowa 990, 993-994, 119 N.W.2d 751, 753 (1963). The focus of a review-reopening decision is the claimant's condition subsequent to the time of being reviewed. See: Sanford v. Allied Maintenance Corp., IV Iowa Indus. Comm'r Rep. 297 (1984). However, a redetermination of the facts, as provided to the original hearing deputy, is unwarranted. Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1038, 291 N.W. 452, 456 (1940). Also, a mere difference of opinion of experts as to the percentage of disability arising from the original injury is not sufficient to justify a different determination by the deputy hearing the review-reopening proceeding. See: Bousfield v. Sisters of Mercy, 249 Iowa 64, 69, 86 N.W.2d 109 (1957). If there is "substantial evidence of a worsening of condition not contemplated at the time of the first award", a review-reopening is appropriate. Bousfield, supra at 69, Lawyer & Higgs, Iowa Workers' Compensation, section 20-2 at 158. Claimant asserts he is entitled to bring a review-reopening proceeding for an alleged injury to his back. Claimant maintains the back condition relates to the prior 1971 leg injury and that it developed in 1986. He argues he brought his action soon after the problem developed. Therefore, he has timely filed his action. Defendants contend claimant is barred by the statute of limitations from obtaining any additional weekly benefits. The undersigned agrees with defendants' arguments. Claimant has brought his action nearly 15 years after the last payment of weekly benefits. This date for the last payment was December 7, 1972. Section 85.26(2) specifically states that: 2. An award for payments or an agreement for settlement provided by section 86.13 for benefits under this chapter or chapter 85A or 85B, where the amount has not been commuted, may be reviewed upon commencement of re-opening proceedings by the employer or the employee within three years from the date of the last payment of weekly benefits made under the award or agreement. If an award for payments or agreement for settlement as provided by section 86.13 for benefits under this chapter or chapter 85A or 85B has been made and the amount has not been commuted, or if a denial of liability is not filed with the industrial commissioner and notice of the denial is not mailed to the employee, on forms prescribed by the commissioner, within six months of the commencement of weekly compensation benefits, the commissioner may at any time upon proper application make a determination and appropriate order concerning the entitlement of an employee to benefits provided for in section 85.27. The failure to file a denial of liability does not constitute an admission of liability under this chapter or chapter 85A, 85B, or 86. (Emphasis added) The Iowa Supreme Court has clearly held the "discovery rule" is inapplicable to the three year limitation period for a review-reopening proceeding. Whitmer v. International Paper Company, 314 N.W.2d 411 (Iowa 1982). The Whitmer case is the premier case on this issue. The Whitmer case is discussed in Lawyer & Higgs, Iowa Workers' Compensation Law and Practice, section 11-12 at 91-92. There the authors write: The supreme court has applied the discovery rule to notice and to the two-year statute of limitations of Iowa Code section 85.26(1). However, in Whitmer v. International Paper Co., it refused to apply the discovery rule where the Iowa Code required claims to be brought within "three years from the date of the last payment of compensation." The claimant in Whitmer was hit in the head and face (on October 12, 1972) when some lights fell on her at work. She was paid benefits pursuant to an award with the last payment of weekly benefits February 27, 1974. She filed a petition for review-reopening on May 23, 1979, over three years since her last payment of weekly benefits, seeking further weekly benefits. Her petition alleged the injury caused "an epileptic condition which could not be and was not discovered until April 1979." The court held her claim for review-reopening to recover further weekly benefits was barred by the three-year statute of limitations. To understand this result, the language of the particular statutory provisions must be examined. Specifically, the Iowa Supreme Court wrote in its decision:  In Orr v. Lewis Central School District, 298 N.W.2d 256, 257 (Iowa 1980) this court noted the discovery rule "delays the accrual of a cause of action until the injured person has in fact discovered his injury or by exercise of reasonable diligence should have discovered it." We then held it applicable to the two-year period of limitations for original workers' compensation actions commenced under section 85.26, The Code 1975. Id. Similarly, in Robinson v. Department of Transportation, 296 N.W.2d 809, 812 (Iowa 1980), we approved Jacques v. Farmers Lumber Supply Co., 242 Iowa 548, 47 N.W.2d 236 (1951), in which the discovery rule was applied to the notice-of-claim provision in section 85.23, The Code 1950. Whitmer now contends that the reasoning in those decisions should be extended to the limitations period in review-reopenings. Section 86.34 provided in part: Any award for payments or agreement for settlement made under this chapter where the amount has not been commuted, may be reviewed by the industrial commissioner or a deputy commissioner at the request of the employer or of the employee at any time within three years from the date of the last payment of compensation made under such award or agreement, and if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded or agreed upon. (Emphasis added.) What distinguishes the limitations periods in present sections 85.26.and 85.23 on the one hand, and section 86.34 on the other, is that in the latter the period commenced "from the date of the last payment of compensation ...." Nothing in section 86.34 referred to an "injury" for the purpose of commencing the limitations period, as was the case in Orr, 298 N.W.2d,at 258-62, and in Jacques, 242 Iowa at 552-53, 47 N.W.2d at 239. Because our reasoning in those two decisions hinged on our interpretation of that word, they are inapposite to the present case. Under the rules of construction provided by the legislature, specifically sections 4.1(2), (36)(a), The Code 1981, we do not believe any ambiguity exists concerning the commencement of the limitations period for review-reopenings in this case: Whitmer's action was filed more than three years after the last payment of compensation. Accordingly, we find no error on the part of the district court. See Ferris, Notice of Knowledge of Injury and Limitations of Actions Under the Iowa Workers' Compensation Act, 29 Drake L.Rev. 775, 788 (1980) ("Because the date of last payment is a date certain, the statute of limitations relating to review-reopenings [viz., 86.34, The Code] is easy to apply and has created few problems.") See generally 3A A. Larson, Workmen's Compensation Law 81.20, at 15-472480 (1976). Therefore, in light of the foregoing, it is the determination of the undersigned that claimant is barred by section 85.26 from bringing this review-reopening proceeding for payment of weekly benefits. His review-reopening proceeding was commenced more than three years after the final payment of weekly benefits. Claimant did not timely file his action. FINDINGS OF FACT AND CONCLUSIONS OF LAW Finding 1. Claimant filed a third party action relative to his work injury on December 7, 1971. Finding 2. Defendant Iowa National Mutual Insurance Company exercised subrogation rights against the third party defendant in the civil action. Finding 3. Defendant Iowa National Mutual Insurance Company and claimant did not file a written settlement agreement with the Division of Industrial Services. Finding 4. Defendant Iowa National Mutual Insurance Company agreed to pay for reasonable and necessary future medical expenses of claimant as a result of his work injury on December 7, 1971. Conclusion A. Claimant is entitled to future reasonable and necessary medical expenses including foot pads and corrective shoes which are related to claimant's injury on December 7, 1971, and defendant Iowa National Mutual Insurance Company is not entitled to an offset of those reasonable and necessary future medical expenses. Finding 6. Claimant did not file his petition for review-reopening within three years from the date of the last payment of weekly benefits. Conclusion B. Claimant is barred by the statute of limitations for bringing a petition for review-reopening for weekly benefits. ORDER Defendants are ordered to pay future reasonable and necessary medical expenses related to claimant's work injury of December 7, 1971, including, but not limited to, foot pads and corrective shoes. Claimant takes no further weekly benefits as a result of his injury on December 7, 1971. Costs are assessed to defendants. Signed and filed this 18th day of April, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Monty L. Fisher Attorney at Law Suite 200 - Snell Bldg P 0 Box 1560 Fort Dodge, IA 50501 Mr. William L. Dawe Attorney at Law 1100 Des Moines Bldg Des Moines, IA 50309-2464 1302; 2403 Filed April 18, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID KELLY COLLAN, Claimant, vs. File No. 381770 MUGGE FEED CO., INC., R E V I E W - Employer, R E 0 P E N I N G and D E C I S I 0 N IOWA INSURANCE GUARANTY ASSOCIATION on behalf of the insolvent IOWA NATIONAL MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1302 Iowa Insurance Guaranty Fund was not entitled to an offset against future medical expenses where there was a third party action but where a written settlement agreement of the third party action was not filed with the Division of Industrial Services. 2403 Claimant was barred from bringing a review-reopening proceeding more than three years after the final payment of weekly benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JACK L. RENNAKER, Claimant, vs. File No. 406987 KEOKUK STEEL CASTING, DECISION ON SECTION 85.27 Employer, MEDICAL BENEFITS and CONTINENTAL INSURANCE CO., Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding for medical benefits pursuant to Iowa Code section 85.27 brought by Jack L. Rennaker, claimant, against Keokuk Steel Casting, employer, and Continental Insurance Co., insurance carrier, defendants for benefits as a result of an injury that occurred on September 28, 1973. A hearing was held in Burlington, Iowa, on June 24, 1993. Claimant was represented by James P. Hoffman. Defendants were represented by Steven R. Cantonwine. The record consists of the testimony of Jack L. Rennaker, claimant, and joint exhibits A, B and C. Official notice is taken of the exhibits, transcript, and decision of the previous hearing which was heard on March 31, 1986 and decided on April 10, 1986. Iowa Administrative Procedure Act 17A.14(4). ISSUES The parties submitted the following issues for determination. Whether certain additional medical expenses incurred with Louis J. Quintero, M.D., were caused by this injury. Whether claimant is entitled to recover $928.25 for these medical expenses. FINDINGS OF FACT It is determined that the medical expenses of Dr. Quintero, in the amount of $928.25, were caused by the injury of September 28, 1973 and that claimant is entitled to the recovery of these medical expenses in the amount of $928.25. In the decision of April 10, 1986, the previous deputy determined: Exhibit 1A contains reports from a number of Page 2 different medical practitioners and records from four different hospitals concerning claimant's condition. It would appear that there is no disagreement among the doctors that claimant suffers from a traumatically induced thrombophlebitis of the right leg. The thrombophlebitis has become chronic and requires continuous medical care. The most probable cause of the phlebitis is the 1973 work injury. (Decision of April 10, 1986, page 2) The previous deputy further stated: It is evident, however, that claimant suffers from chronic phlebitis as a result of his September 1973 injury. ... Claimant's condition is of long standing duration and looks as though it will continue to cause periodic problems. (Decision of April 10, 1986, page 3) The previous deputy industrial commissioner in his findings of fact found: On September 28, 1973 claimant suffered an injury to his right leg at work. As a result of the injury of September 28, 1973, claimant developed chronic thrombophlebitis in the right leg. (Decision April 10, 1986, page 4) Claimant testified that after the previous hearing he developed a cracked, ulcered, seeping, dermatitis condition in his injured right leg. He returned to his treating physician, James E. Bitter, M.D., who sent him to see a dermatologist, Louis J. Quintero, M.D.. Claimant said that he saw Dr. Quintero on several occasions and over time developed a bill in the amount of $928.25 (Ex. B). Claimant testified that the treatment of Dr. Quintero cleared up the problem but that defendants' refused to pay the bill. Claimant testified that he was then sued by Dr. Quintero and he was forced to take out a loan to pay the bill in order to settle the lawsuit. Claimant testified that he experienced these same skin conditions prior to the previous hearing but that they had never been this bad before where they refused to heal up. Claimant's testimony was not controverted, rebutted, contradicted or refuted by any other evidence. The records of Dr. Bitter, from the previous hearing, confirm that claimant did suffer from the same symptoms prior to the first hearing. On April 29, 1981, Dr. Bitter recorded low grade cellulitis (Ex. A-1, p. 7). On April 13, 1982, Dr. Bitter wrote to the insurance company that claimant had persistent Page 3 swelling of the lower limb with some recurrent areas of induration and cellulitis compatible with his reactivation of the deep phlebitis (Ex. A-1, p. 6). On August 31, 1984, Dr. Bitter recorded that claimant had developed some weeping from the whole chronic stasis ulcer of the right lower extremity (Ex. A-1, p. 1). On April 21, 1985, Dr. Bitter noted claimant did have a problem with chronic stasis changes of the lower extremity from his venous insufficiency (Ex. A-1, p. 4). On May 29, 1990, Dr. Quintero responded to an inquiry from the insurance company in which he stated: My clinical impression is that the patient has an atopic dermatitis with multiple areas of autoexcoriation. I am wondering whether the areas of autoexcoriation could have led to the formation of his ulcer. Due to this, I would tend to agree with your medical evaluation, that his present problem is unrelated to any previous traumatic injury. (Ex. A, p. 1) It is understandable why Dr. Quintero would not relate dermatitis to a traumatic injury. However, it would appear that Dr. Quintero is totally unaware of the previous history in this case that Dr. Bitter recorded or the decision of the deputy industrial commissioner that the traumatic injury was the cause of thrombophlebitis. The notes of Dr. Quintero do, however, relate the dermatitis which he treated to thrombophlebitis. It is interesting to note that Dr. Quintero used the same terminology that Dr. Bitter used back in 1981, 1982, 1984 and 1985. Dr. Quintero noted as follows: ON EXAM: There is intense dermatitis of the right medial ankle region with weeping and oozing but no actual ulcerations. The skin has a woody and indurated feel. There is scattered excoriations over the lower legs, worse on the right than the left. There is pitting edema of the right ankle. IMPRESSION: Stasis dermatitis with possible secondary bacterial infection. ... It should be noted that stasis dermatitis is a very well-recognized phenomenon which follows venous disease particularity phlebitis. Thus it would be my opinion that the stasis dermatitis is related to the history of phlebitis (Ex. A, p. 2). Thus, Dr. Quintero relates his treatment to the thrombophlebitis and the thrombophlebitis has been previously judicially determined to be caused by the injury of September 28, 1973. Wherefore, it is determined that the medical treatment of Dr. Quintero was caused by the injury of September 28, Page 4 1973 as sequelae of that injury. It is further determined that claimant is entitled to recover the $928.25 which he paid to Dr. Quintero to satisfy the doctor's charges for his treatment of this injury. It is entirely possible that it is cases like this one that have prompted proposed legislation making defendant employers and insurance carriers liable for interest and penalties on unpaid medical expenses. Claimant was subjected to a lawsuit by the treating physician and was forced to make a loan to settle these charges. Then claimant was forced to retain an attorney and bring this action in order to obtain the payment of a small medical bill which according to the evidence presented was directly attributable to this injury. CONCLUSIONS OF LAW Wherefore, the following conclusions of law are made. That the injury of September 28, 1973 was the cause of claimant's thrombophlebitis and that the thrombophlebitis was the cause of the medical treatment of Dr. Quintero. 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). That claimant is entitled to recover $928.25 for this treatment of Dr. Quintero. Iowa Code section 85.27. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant nine hundred twenty-eight and 25/100 dollars ($928.25) for the treatment of Dr. Quintero. That the costs of this action are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40. Page 5 That defendants file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James P. Hoffman Attorney at Law Middle Road PO Box 1087 Keokuk, IA 52632 Mr. Steven R. Cantonwine Attorney at Law 3708 Breakwater Building Des Moines, IA 50322 1108.50, 1401, 1402.30, 1402.60, 2501, 2505, 2700 Filed June 29, 1993 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JACK L. RENNAKER, Claimant, vs. File No. 406987 KEOKUK STEEL CASTING, DECISION ON SECTION 85.27 Employer, MEDICAL BENEFITS and CONTINENTAL INSURANCE CO., Insurance Carrier, Defendants. ___________________________________________________________ 1108.50, 1401, 1402.30, 1402.60, 2501, 2505, 2700 The injury occurred on September 28, 1973. A previous deputy found that the injury was the cause of claimant's thrombophlebitis. Prior to the last hearing the treating physician treated skin conditions of chronic stasis, induration and weeping ulcerations of claimant's injured right leg. Subsequent to the last hearing claimant experienced the same conditions again and the treating physician referred claimant to a dermatologist. The insurance company refused to pay the dermatologist's bill in the amount of $928.25. The dermatologist sued claimant who was forced to make a loan to settle the lawsuit. Then claimant was forced to retain an attorney to bring this action to recover the amount he paid for his medical treatment. It was determined that the subsequent dermatology treatment was caused by the original injury and that claimant was entitled to recover the $928.25. The dermatologist said he could not relate his treatment to a traumatic injury but apparently he did not know that the prior injury was determined to be the cause of the thrombophlebitis. The dermatologist did say his treatment was related to the thrombophlebitis. The deputy commented that it was cases like this that have probably prompted legislation for interest and penalties on unpaid medical expenses.