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:
 
         
 
                   [2] 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.